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Law 17A Vermont man, was dismissed from jury duty this month when he showed up at the courthouse jury assembly room wearing a prison-striped costume and matching beanie. After being noticed, the judge met with him privately and asked him to leave. The Vermonter, James Lowe, was only too happy to oblige.

Some jury-selection experts think being verbal, subtle and biased are good ways to avoid getting picked. And then there’s Lowe and his costume.

Not so fortunate by comparison was Henderson, Nevada lawyer Kurt Smith who spent a night in jail over his attitude. “Thanks a lot,” he said after being chosen to serve on the jury for a scheduled three-day trial. Unfortunately, it was loud enough for District Court Judge Ron Israel to hear. Judge Israel called it a breach of the peace and held him in contempt.

The judge then ordered that Smith either watch the rest of the trial from the gallery or spend a night in lockup. Smith apologized and chose the gallery instead of a night in the pokey. But when the following day Smith showed up half-an-hour late for the resumption of the trial, the judge ordered him jailed for 48 hours. He was released after serving 24 hours.

Bad Dog! | by http://www.petsadviser.com

Rare indeed apparently is the lawyer unconvinced of their professional indispensability. That stuff may sell someplace else. But in one Nevada courtroom, the judge wasn’t buying it.

Many called, few chosen, and even more try to evade.

Clearly, George Bernard Shaw was wrong when he said “only lawyers and mental defectives were automatically exempt from jury duty.” Lawyers obviously get called although I can’t speak for the “mental defectives.” On the latter, some may have their suspicions.

As for myself, I’ve been called several times. Each time I was obediently poised to do my civic duty — but I was never chosen. The last time was a year ago here where a local newspaper previously headlined, “Most People Don’t Show Up For Jury Duty in Maricopa County.” Since then the local courts have cracked down on no-shows with a “get tough” policy. I can’t say how well it’s working.

The Jury by John Morgan.jpg

Chief Justice in the Jury Box.

Earlier this year, I read “A Justice on the Jury” in the Nevada State Bar’s, Nevada Lawyer. It was Nevada Supreme Court Chief Justice Mark Gibbons’ first person account of being called and picked for jury service. According to court records, it was the first time a Nevada Supreme Court Justice had ever been seated as a juror in a jury trial in the state. Judge Gibbons served during a criminal trial in Carson City.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/19/Jury_duty.jpg/320px-Jury_duty.jpgHe related how “waiting outside the courtroom, a newspaper reporter joked with me that I would probably be the first juror excused. To my great surprise, I was seated as juror number five, when the court resumed proceedings.” I don’t think he should have been surprised, though. After all, when you have the chief justice of the state supreme court in your jury pool, a lawyer is going to be hard-pressed to strike him with a peremptory challenge.

Courtroom 98Justice Gibbons said he learned a lot from the experience. And unlike some folks, he says he’d welcome a subsequent summons for jury duty.

And while he was gracious about how the proceedings were conducted, telling the judge afterward that he agreed with all of his rulings on objections during the trial, he nonetheless wasn’t shy about offering helpful tips and procedural improvement prescriptions for trial judges. These included creating “a checklist of all mandatory jury instructions that need to be submitted to the jury” and giving “special emphasis” to the juror admonishment instruction prohibiting independent research. Additionally, before commencement of deliberations, he would require jurors to re-read the jury instructions. And during the opening charge, he says he would acquaint the jury on basic courtroom procedures, including the use of expert witnesses and hypothetical questions.

So much for all those overly busy indispensables, including lawyers, if the chief justice can serve, well . . . .

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Photo credits: “The Jury by John Morgan” painted by John Morgan, uploaded to Wikipedia by Swampyank – The Jury by John Morgan.jpg. Licensed under Public Domain via Wikimedia Commons – https://commons.wikimedia.org/wiki/File:The_Jury_by_John_Morgan.jpg#/media/File:The_Jury_by_John_Morgan.jpg; “Bad Dog!” by Pets Adviser at Flickr Creative Commons Attibution; “Jury Duty” by Steve Bott at Wikipedia via Creative Commons Attribution License.

A bite out of the bar.

mooning the neighbourhood | by Pixel Addict

In February, the U.S. Supreme Court took a bite out of dentists in North Carolina. And at the same time, the high court made state professional boards everywhere nervous, including mandatory state bars.

By a 6-3 vote in North Carolina Board of Dental Examiners v. Federal Trade Commission, the Supreme Court imposed a higher hurdle for nonsovereign licensing boards to gain the state-action immunity that shields board members from federal antitrust liability.

Coincidentally, just a few years ago, a wise-cracking dentist friend had mentioned during a golf round how dentists were becoming annoyed over the growing number of non-dentists — mostly, cosmetologists, offering teeth-whitening services to the public. Beauticians were not only beautifying hair and skin but were now traipsing onto teeth territory and offering lower cost teeth-whitening services than dentists.

I only remember his story because, as a horse-owner, several years before, horse veterinarians around the country were trying to get non-veterinary dental lay practitioners (NVDLPs) banned from floating a horse’s teeth. The “float” is the name of the file used to smooth or contour a horse’s teeth and horse-shoers, self-taught cowpokes, and self-described ‘equine dental technicians’ had been biting into horse vet incomes by offering more affordable floating services.

A license for everyone?

When it comes to protecting turf, it’s always financial self-interest at the root of it. Never mind the chest and table pounding about protecting the public. No wonder an increasing number of everyday occupations hanker for licensing ‘protection.’ They think it heightens consumer perceptions of quality and increases demand. And of course, licensing restricts supply which translates into higher prices.

But in many instances, occupational licensing offers only an illusion of quality while doing little to actually protect consumers. Instead, occupational licensing simply creates self-serving barriers to entry, which makes the provided service more expensive and more unavailable.

And because it means additional revenue while offering a public protection sop to the electorate, government bureaucrats don’t mind creating more licensing categories to feed the bureaucratic maw. No wonder some call it a plague.

 

Tooth or Consequences in North Carolina.

So what happened in North Carolina is that its 8-member dental board made up of 6 licensed dentists elected by their fellow dentists, began sending out cease-and-desist letters to individual non-dentists and even to the North Carolina Board of Cosmetic Art Examiners warning them that under North Carolina law, the unlicensed practice of dentistry was a crime. And teeth-whitening was considered the practice of dentistry.

The cease-and-desist letters totaling 47 had their intended effect, chasing out the non-dentist teeth-whiteners out of the dental temple. But they also attracted the unwanted attention of the Federal Trade Commission (FTC) who suspected the board’s actions weren’t motivated so much by high-mindedness about consumer protection as they were over non-dentist competitors gumming up revenues.

In the FTC’s view, where the regulatory agency has a “financial interest in the restraint [it] seeks to enforce” and is “controlled by private market participants who [stand] to benefit from the regulatory action,” the state action exemption required active supervision “in circumstances where the state agency’s decisions are not sufficiently independent from the entities that the agency regulates.”

As a consequence, the FTC concluded that the Board had to meet the active supervision requirement if it wanted to benefit from state-action immunity. “Because North Carolina law requires that six of the eight Board members be North Carolina licensed dentists, the Board is controlled by North Carolina licensed dentists.” Moreover, dentists perform teeth whitening.  Therefore, “Board actions in this area could be self interested.” You think? See “How a state dentistry board hounded non-dentist teeth-whiteners out of North Carolina” and Brief of Respondent Federal Trade Commission. 

A bite out of the bar. 

roger daltrey shows us why his primal scream from "won't get fooled again" is still the best in rock 'n roll | by greg westfall.

Why should lawyers care?

Because it may lead to more legal challenges given our over-regulated legal market. And it will engender more defiance against the host of anti-competitive actions taken by mandatory bar associations. Indeed, on June 3, 2015, Legal Zoom filed a $10.5M antitrust suit against the North Carolina Bar.

Some legal analysts even think it will mandate more “active supervision” of state bars by their state supreme courts. Said one, “the decision probably will lead to state supreme courts having stronger relationships with their state bars and oversight to see whether they are acting consistent with statutory authority or the authority granted by their state supreme court.” Still others think it might shake up unauthorized practice of law (UPL) restrictions and “revive challenges to UPL rules.” See PrawfsBlawg: Teeth Whitening for Lawyers

munch - it's a scream | by oddsock

Oh, woe. Oh, scream.

And claiming their work would be impaired, mandatory bars had predicted a parade of horribles in the wake of the decision. By denying them state action immunity under the Sherman Act, private regulatory boards with a controlling number of decision-makers actively participating in that profession, i.e., “market participants,” would be forced to act under a clearly articulated state policy and under active supervised by the state. “Active market participants,” the Court said, “cannot be allowed to regulate their own markets free from antitrust accountability.”  Oh, woe. Oh, scream.

 

Scream | by MooganicAs Amici Curiae in support of the North Carolina Dental Board, the North Carolina, Nevada, West Virginia and Florida State Bars had paraded the horribles in their Brief, including that “the limited resources available to prosecute lawyer misconduct and to prevent the unauthorized practice of law will be diverted to litigating whether the state bar’s action has been actively supervised in a manner sufficient to provide state action immunity.

Additionally, they predicted “State bars will have to defend expensive antitrust actions even though states explicitly authorize the state bars to regulate the conduct being challenged.” And worse, they claimed lawyers won’t want to serve on bar governing boards “for fear of being sued—and of being held individually liable—in treble-damage antitrust actions.” Last, they proclaimed those “who do agree to serve may be deterred from fulfilling their state-authorized enforcement duties against defendants who threaten antitrust claims.” 

The non-state agency state bar. 

Bite Me Bar Sign | by Sam HowzitStates are exempt from federal antitrust laws for their acts when acting in their sovereign capacities — even when those acts would violate antitrust laws if done by a private party. Not so state boards with active market participants who should now be treated like private entities and who to receive state-action immunity, must now meet the two-test requirement for private entity immunity: a clearly articulated anticompetitive statute and active supervision by the state.

The Scream | by adactio

As for the State Bar of Arizona, legal elites here have been pondering the implications of the North Carolina case, including whether or not to leaven the influence of active market participant lawyers with more non-lawyers on its governing board.

But in my opinion, there are likely more ominous reverberations than merely decreasing the number of foxes in the hen-house. As its website proclaims, the Arizona Bar proudly claims it’s “not a state agency.” So it would seem that as “a nonsovereign actor controlled by active market participants,” to avoid antitrust liability, it will have to work even harder now to satisfy the two requirements of clearly articulated state policy and active State supervision.

In Bates v. State Bar of Arizona 433 U.S. 350 (1977), the U.S. Supreme Court held that the Arizona Supreme Court’s rule restricting lawyer advertising violated the First and Fourteenth Amendments and ruled that commercial speech merited First Amendment protection. Admittedly, the nation’s high court went along with the Arizona Supreme Court’s determination in Bates that the Arizona Bar was immune from federal antitrust liability because in enforcing the Court’s then rule against lawyer advertising the Bar’s role had been “completely defined by the court” and moreover, the Bar acted “as the agent of the court under its continuous supervision.” 

After North Carolina Dental Board v. FTC, whether this will be true in every instance implicating anticompetitiveness should be worrisome for the non-state agency Arizona Bar particularly when Goldfarb v. Virginia State Bar (421 U.S. 773, 791 (1975) was also cited by the Court for the principle that while state bars are a state agency for some limited purposes, that fact does not create an “antitrust shield that allows it to foster anticompetitive practices for the benefits of its members.”

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Photo Credits: “mooning the neighbourhood,” by Pixel Addict at Flickr Creative Commons Attribution; “Roger Daltrey …” by greg westfall at Flickr Creative Commons Attribution;”Bite Me Bar Sign,” by Sam Howzit at Flickr Creative Commons Attribution;”Munch — it’s a scream,” by Ian Burt at Flickr Creative Commons Attribution;”The Scream,” by Jeremy Keith at Flickr Creative Commons Attribution;”Scream” by Mooganic at Flickr Creative Commons Attribution.

In dormis delicto.

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/5/5d/Albert_Guillaume_15_minutes_d%27entr%27acte.jpg/381px-Albert_Guillaume_15_minutes_d%27entr%27acte.jpgI went to a one-man play the other night. It was long on moralizing and short on humor. And unfortunately, I fell asleep in the middle of it.

Too bad there wasn’t an intermission. And especially too bad I was sitting in the front row in spitting distance of the actor-playwright and in his plain sight. Worse still, too bad I shook off several well-intentioned wake-up nudges before I was caught in dormis delicto (in sleeping offense).

And so much for victimless humor since the rightly offended actor — dropped his persona and without skipping a beat called me out before God and audience for my indelicate slumber.

It’s true that given our healthy egos, it’s hard to embarrass a lawyer. But give this guy credit for giving a snoozing patron his due. There was more — but I’ll spare myself the additional indignities.

Not like I didn’t deserve the chortles from the crowd. But with as much as 90-minutes of uninterrupted preachy soliloquy, I probably wasn’t alone in the Land of Nod. Indeed, it wouldn’t surprise me if others sitting behind safely shadowed in darkness well beyond the stage lights, didn’t perhaps think ‘there but for the grace of God ‘ or ‘better he than me.’

Like as not, I know how the actor felt. As a practiced speechifier, I’ve been on the receiving end of somnolent audience members. So much for making eye contact with the audience when their eyes are shut.

Existential philosopher Albert Camus said “Some people talk in their sleep. Lecturers talk while other people sleep.” If you speechify long enough, you either develop a thicker skin or you get better material.

Out of the mouths of babes.

Unconscious meditating or sleeping? Some may think it’s overwork. Nah. Or undiagnosed showtime situational narcolepsy. Are you kidding? Or better still that all my years of getting by on 5 to 6 hours of sleep finally caught up with me. Not yet.

I doubt I’m suffering chronic insufficiency of what Macbeth called “the Chief Nourisher in life’s feast.”

Age has nothing to do with it either. In my late 20’s, a young nephew who occasionally accompanied me to the show would on returning home, happily pronounce a movie’s merits or demerits to family, “It was a good movie because my uncle didn’t fall asleep.” Sooner sleep than boredom. Truth out of the mouths of babes.

Sleep as arbiter of entertainment.

Instead I prefer to believe in sleep as arbiter of entertainment. Engage your audience or entice Morpheus.

Any wonder then that over the years, I’ve thought the best and easiest to understand entertainment rating system is the San Francisco Chronicle’s “Little Man” created by Chronicle artist Warren Goodrich. Forget stars, letter grades, thumbs up or down or the rotten tomatoes other critics use for rating shorthand.

The Little Man: The San Francisco Chronicle’s Rating System

After more than half-a-century, if you want to know one person’s opinion of what she thinks of an entertainment’s value — next to the empty chair, it’s the Little Man.

So when a show’s bad, I follow his cue. Just don’t sit in the front row.

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Photo Credits:15 minutes d’entr’acte by Albert Guillaume at Wikimedia Commons, public domain; Kids+ culture = ?, by midiman at Flickr via Creative Commons attribution license; IMG_1977.JPG at morguefile.com by pedrojperez; Front row at Girl Talk, by Harry Heng at Flickr Creative Commons attribution.

Victimless humor.

Someone once told me laughter is always at somebody else’s expense. I disagreed and lamely rejoined, “What about babies? They laugh and not at someone’s expense.”

On later reflection, I had to admit he was mostly right. And not just about jokes at the expense of lawyers.

Generally speaking, it’s rare to find humor without a ‘victim.’ I think it’s because most people don’t find victimless humor very funny. Take, for example, this victimless jest, “My two sons are a doctor and a major league pitcher — a healer and a hurler.” A real knee-slapper that one.

As for self-deprecating humor, “I am so clever,” said Oscar Wilde, “that sometimes I don’t understand a single word of what I am saying.” I like Oscar, especially when his self-directed put downs remind me of people I’ve worked with. For example, his “I love to talk about nothing. It’s the only thing I know anything about” so reminds me of an ex-boss.

Some people just lack the ability to laugh at themselves

As for making light of yourself, actress Ethel Barrymore once said “You grow up the day you have your first real laugh — at yourself.” Or at least, that’s what Ethel thought about growing up.

But as theory goes, when humor isn’t self-effacing, then someone else is the butt of the joke. As I said, I’m not so sure about the theory.

Everyday examples of humor and laughter abound where a butt of a joke isn’t involved. For instance, every time I walk our dogs, there’s humor and laughter. And people at play find fun and laughter.

And as awful as most puns are, puns don’t hurt anybody and sometimes, even elicit laughter. And pay no mind to wags who demur that “Puns offend the language.”

Besides, who says humor at someone’s expense is always funny? I never thought Don Rickles, the so-called Master of Insults, was amusing. And where’s the humor in Internet trolls and listserv flamers.

It would be a terrible shame if laughter required victims, particularly when as the unconventional, lower case poet e.e. cummings said, “the most wasted of all days is one without laughter.” And what of Plato who claimed “even the gods love jokes”?

Prompting all this about humor and laughter was yesterday’s telephone conversation with my sister. For all of 10 minutes, our exchange was punctuated with chortles of mutual laughter. There wasn’t even a joke, although we did also discuss my problem with . Nor was there any meanness. It was just shared remembrances of growing up that reduced us both to gales of laughter.

The fact is that there’s little better than shared memories between friends and loved ones. And it’s not necessarily that those recollections were funny back when they happened. Years later, they can be howlers — even if they weren’t at the time. But best of all, there’s nothing as much fun as ending a conversation — while you’re both still laughing.

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Photo Credits: “First Chompers” by dee at morgueFile.com;IMG_1884 by xandert at morgueFile.com; “Fits of laughter,” by Doug Ford at Flickr Creative Commons Attribution.

The State Bar of Arizona sent out a blast email to members last Thursday afternoon, April 2nd. The email sincerely insincerely asked for comments about its 2015-2019 Strategic Plan “to make sure we haven’t missed anything.” But the deadline for response was a mere 4 work days later by tomorrow, Tuesday, April 7th.

Most lawyers will miss the email, let alone respond. But then that’s hardly a surprise. The Bar makes a habit of eleventh-hour requests for member feedback. This way at least, it can always check the box that it asked for member input — even if it was late or after-the-fact.

It’s a tiresome stratagem since, as many of us know, a mandatory membership bar only pretends to care what members think or want.

For the autocratic Arizona Bar, top-down, under-the-radar decision-making is how it rolls.

So when the Bar asks for comments about its plans — it’s for appearances’ sake since the Bar believes more in dressing the window than in opening it to let in light and fresh air.

Strategic Plan Rehash.

In its request, the Bar linked to its one-page “Outline of Goals,” which briefly summarized its strategic planning committee’s five goals: competency; ethics; professionalism; administration of and access to justice; and professionalism.

It’s all much ado, however. The 2015-2019 plan is little more than a rehash of its over-the-top 2010-2015 five-year plan. See “AZ Bar drafts up 5 year vision but misses the mark” and “Arizona Bar releases five-year vision”

And per usual, the outline is full of self-congratulation but also per usual, light on metrics. Where are the sets of measurements to quantify results? Where are the performance metrics to quantify performance? Or the project metrics to verify attainment of goals?

And what about the Bar’s continued problems with transparency, due process and communication? Or the failure to address the prioritization of resources and the elimination of low priority programs and services? Of course not. It’s all lip in search of service. For comparison, see the Nebraska State Bar’s revised strategic plan after its supreme court made most of its programs and services optional.

The Bar’s plans are merely a means not to “sustain efficient and effective management of Bar resources” as the outline states — but excuses for mission creep, the bureaucratic Bar’s ingrained love for gradually broadening its original organizational objectives.

In the end, however, the short turnaround time for member response is of little import since the Bar’s poised to simply repeat what it did in 2010 and again prospectively proclaim its purported objectives a done deal: “The State Bar of Arizona demonstrates excellence in every area: operations, programs, resource management, policy and planning, and citizenship.”

“To Protect and to Serve.”

My only other thought is to wonder why the Bar even bothered to do a strategic plan since the state supreme court has undertaken its own state bar through a task force it created in August. Any strategic plan will be subordinated and subsumed by what the task force recommends to the court.

Indeed, according to the task force’s mostly completed work, the state supreme court will soon be retooling its rules “to clarify that the mission of the State Bar of Arizona is primarily to protect and to serve the public, and secondarily, to serve its members.”

https://upload.wikimedia.org/wikipedia/en/2/24/Jackwebbbbigseptemberman.jpg

“All we know are the facts, ma’am.”

Or in other words, as a bar executive once told me, to function “like a consumer protection agency”  — i.e., to protect the public from its members.

So much for all the soft-pedaled mush language in the strategic plan outline about ‘promoting and enforcing the highest member ethical conduct’ or about ‘enhancing the Bar’s protection of the public.’

 

 

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Photo Credits: “Don’t Listen,” by Sean Loyless at Flickr via Creative Commons Attribution; “Bored in the subway,” by Mike Warot at Flickr via Creative Commons Attribution;”Chris,” by Paris Buttfield-Addison at Flickr via Creative Commons Attribution;104/365 “These are the times we all wish for,” by bp6316 at Flickr via Creative Commons Attribution; “LAPD Seal,” by JBrazito at Flickr via Creative Commons Attribution; Jack Webb, via Wikipedia Commons.

I finally saw Birdman: Or (The Unexpected Virtue of Ignorance). I wish I’d stayed virtuously ignorant.

As an avid movie-goer, I try to see all the Academy Award Best Picture Nominees before the annual self-congratulatory award show orgy. But this year I was late. So now playing catch-up, I finally got around to Birdman, which won Best Picture.

Birdman is the supposed black comedy featuring Riggan Thomson, an actor once famous for portraying an iconic Birdman superhero. It stars Michael Keaton as Riggan and who, for what it’s worth, was not a very good Batman.

With an annoying staccato drumbeat for soundtrack, the film depicts Riggan battling his ego, his family, his career, and himself while he struggles to mount a Broadway play. I battled, too, but to stay awake. Now I know why friends told me they wished they’d walked out of the theater midway into the 2-hour movie.

I will spare you the various analyses offered by film critics both of the paid and wanna-get-paid variety. Birdman is either a satiric tour-de-force or a surrealistic portrait or a hilarious high human comedy. Almost every critic in the world was left frothing as they lathered the film with rinsed and repeated praise. Call me an untutored Philistine but I thought it was undeserved.

Fortunately, not every well-known critic was stampeded by the herd. I savored what The New York Observer‘s Rex Reed said of it, “a miserable load of deranged, deluded crap masquerading as a black comedy called Birdman . . . . Some of the critics who embrace this kind of stupidity claim that Birdman pretends to say something witty about the perils of celebrity, fame, stardom, success and failure, not necessarily in that order, but I can find nothing good to say about any shard of the pretentiousness on view here.” 

Amen, brother. I’m only glad that instead of getting flipped the Bird at $10 per ticket at the theater, it cost me only $1.63 from the local Redbox.

My take on movies.

Occasionally, I like discussing movies here. And not always because of a or a connection to the legal system.

I’ve loved movies ever since I can remember, no matter that my earliest recollection is a sad one. At 6 years old, I recall watching a war movie with my dad and crying when the dog got killed.

Someday someone will explain why whenever there’s a dog in a movie, the pup always gets it. To this day, it persists as a cheap, manipulative directorial prop.

Far as I’m concerned, Birdman is just another film proving what I’ve said before. The . What critics call “good” — often mystifies, annoys or bores the rest of us.

“Critics,” I last wrote, “see so many films each year their souls are deadened. They’re left almost bereft of what passes for normal sensation. Consequently, their viewpoints and opinions become increasingly jaded. Unless a movie darkens, depresses and disheartens, it’s not worthy of acclaim. Unless the nihilistic characterizations make you want to slug back a fifth of vodka or jump off a building or slit your wrists, the movie is not an artistic success.”

Jump off a building? According to one interpretation, that’s what Riggan does in the end. Or does he? Who cares?

Call me unvarnished but when I go to the movies, I want to be entertained or educated. And once in a rare while — to be uplifted. No surprise, then, that critically acclaimed downers seldom translate into popular success.

Give me the other Bird, man.

https://i2.wp.com/media-cache-ak0.pinimg.com/736x/63/13/05/631305ccd811e6a65deec97afe3df995.jpg

Next time I want a Birdman, give me the attorney with a beak — the other ex-superhero named Harvey T. Birdman of Birdman and the Galaxy Trio. Although he works mostly as a criminal defense attorney alongside other cartoon characters, he’s not emotionally tortured — even if he is a lawyer. So if I want surrealistic comedy, next time I’ll take the other Birdman.

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Photo Credits: Harvey Birdman Attorney at Law, by Nathan Rupert at Flickr via Creative Commons-Attribution NonCommercial-NoDerivs 2.0 Generic License; Captain Future: Man of Tomorrow, by Colleen A. Bryant at Flickr via Creative Commons; Português: El Rey, nosso senhor e amo by Angelo Agostini at Wikimedia Commons, public domain.

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