I believe that the Defense of Marriage Act ("DOMA") and California Proposition 8 are wrong. I would never vote or support either.
However, upon further reflection I think it is very bad policy to let the Supreme Court be the final arbiter of this. Here is how I view it:
To pass any law it requires both the Senate and House to approve it. The House is highly gerrymandered and the Senate is probably the most undemocratic body in "democracy". Each state gets 2 senators regardless of size AND because of the fillibuster often requires 60 votes. Then the President has to sign on.
If someone out there thinks the law is unconstitutional, that person can file an action in federal court arguing as such. At that point, one judge rules however he or she sees fit. Then it can be appealed when a panel of 3 judges decides one way or the other. Then, it can be appealed to the Supreme Court where 9 judges get to decide. By the way, all the judges are attorneys probably from about 10 different law schools and probably have very limited at best experience outside the theoretical aspects of law (academia, appellate work).
My point is this isn't democracy. The decisions are all made by a few people not representative of the country as a whole. If the Supreme Court was some sort of non-partisan, highly intellectual body of scholars who neutrally evaluated things, it might be different. But that is the exact opposite of what the Supreme Court is. The Supreme Court is just another political body cloaked as some sort of guardian of te constituion.
The Hollingsworth holding is a classic example. The "standing" argument is garbage. The court wanted to rule in a way that wouldn't create outrage. The easiest way to do that was to dismiss the appeal - same-sex marriage in California is not a controversial issue anymore - Prop 8 would be repealed by wide margins if voted on, so allowing same-sex marriage to remain legal in California offends no one. Therefore, it is an obvious political opinion, all the intellectual stuff about "standing", "cases and controversys" and "injury" are words lawyers use when they trying sound smart, but really are terms for "we do not want to decide this".
I think judicial review has had its day and it is time for it to go - but that won't be possible until we actually have a democracy, not some system where 500,000 people in North Dakota have the same say as 40 million in California.
Wednesday, June 26, 2013
Tuesday, June 11, 2013
Attorneys are too Serious Part III
Not to needless belabor my point, but take a look on my facebook page as to what my law offices mission is. What do you think when read that? If you think it is inappropriate, unprofessional, or the like, you are too serious.
When we are doing whatever it is we do, especially in bankruptcy, nobody dies. I can understand the gravity in criminal law, but in bankruptcy? Come on. Get a grip.
Have fun. Try to put witty stuff in your pleadings / correspondence as necessary. I for one would rather read clever analogies about how shitty my case is. For example:
Serious Attorney: "your case is wholly without merit and is frivilous. My client will be seeking attorneys from you and your client if blah blah isn't done"
Witty Attorney: "your case makes about as much sense as a football bat"
What is more effective?
Serious Attorney, when addressing court: "good morning your honor, Clarence Darrow on behalf of the Debtor"
Less Serious Attorney: Good Morning your honor, I'd like to wish everyone a happy X day. I always try to mention significant days in history as they apply - I've been able to work in Pearl Harbor Day, April Fools Day, D-day, Bastille Day and countless others. No idea why I do this, but for me it loosens me up. Plus a lot of these are important for us to remember.
Anyway, I hope I've made my point and I will stop ranting. Colleagues, I implore you loosen up and relax. It isn't that bad. I'll meet you in the middle - I'll gladly accept your attached correspondence as long as it doesn't come from a secretary.
Finally, be yourself. I'm sure some people are naturally pensive types of people, but I know many are not. As I mentioned in the beginning, I am different than most, I learned at a young age my round peg wasn't fitting in the square hole, so I stopped trying and found life much more easier.
When we are doing whatever it is we do, especially in bankruptcy, nobody dies. I can understand the gravity in criminal law, but in bankruptcy? Come on. Get a grip.
Have fun. Try to put witty stuff in your pleadings / correspondence as necessary. I for one would rather read clever analogies about how shitty my case is. For example:
Serious Attorney: "your case is wholly without merit and is frivilous. My client will be seeking attorneys from you and your client if blah blah isn't done"
Witty Attorney: "your case makes about as much sense as a football bat"
What is more effective?
Serious Attorney, when addressing court: "good morning your honor, Clarence Darrow on behalf of the Debtor"
Less Serious Attorney: Good Morning your honor, I'd like to wish everyone a happy X day. I always try to mention significant days in history as they apply - I've been able to work in Pearl Harbor Day, April Fools Day, D-day, Bastille Day and countless others. No idea why I do this, but for me it loosens me up. Plus a lot of these are important for us to remember.
Anyway, I hope I've made my point and I will stop ranting. Colleagues, I implore you loosen up and relax. It isn't that bad. I'll meet you in the middle - I'll gladly accept your attached correspondence as long as it doesn't come from a secretary.
Finally, be yourself. I'm sure some people are naturally pensive types of people, but I know many are not. As I mentioned in the beginning, I am different than most, I learned at a young age my round peg wasn't fitting in the square hole, so I stopped trying and found life much more easier.
Attorneys are too Serious Part II
A lot of attorneys think they are tough guys, especially when dealing with younger attorneys. Some things tough attorneys do to is younger attorneys is sound serious and try to imply fuck around time is over. Examples of this -
1. Referring to opposing counsel in correspondence as "Mr. Faler"
My Response: Judges call me Mr., and to everyone else I am Matt. (not entirely true, many of my friends call me by a few nicknames, but I do not use them professionally).
2. Sending Letters on Fancy Stationary
My Response: We scan everything, so I will be reading your letter on pdf regardless of the cotton stock.
3. Attaching a Signed Letter to an Email
My Response: This drives me nuts. I can literally remember the last time I did this (ironically trying to sound like a hard-ass to a client who hasn't paid his bill yet). Before that, I cannot recall. I've heard a bunch of reasons for it, but all of them suck. If you want to communicate to me something in writing, write an email, put my email address in the send block, and press send. It is that simple. The attachment part does not make me read it more attentively, think fuck around time is over, or think wow, so and so must really have the goods on me / my client, so I'd better acquiesce to all their unreasonable demands on the spot. I have largely instituted a new rule: opposing counsel gets one email letter attachment, before they get the "I will delete any correspondence attached to an email" schtick. And I will do it.
4. Sending a Signed Letter in an Email from a Secretary
My Response: This is not acceptable to me in any way, shape or form. I by the very nature of my practice am the lead attorney on my cases. Therefore, I communicate with attorneys only. Secretaries, paralegals (with a few exceptions usually for trustee personnel) do not send me anything, or more specifically, secretaries who send me attached correspondence drafted by themselves or their superiors will find it deleted and a response sent to the attorney stating as such. This is done because opposing counsel is trying to show me they are so busy that they can't bother to send an email. And I delete it because I am too busy to open correspondence from non-attorneys.
5. Threatening Sanctions
My Response: This is my favorite. "if you don't do XYZ, I am going to seek sanctions pursuant to whatever section and blah blah blah". I really love the bolding. In fact I love all correspondence and pleadings with bolded and italicized parts, it really makes understand how grave the matter at hand is. Whenever this happens, I always give the same short but LEGALLY CORRECT RESPONSE and this whether it be Cal Civ Pro, FRCP, or FRBP before any motion for sanctions is filed, the moving party must serve the motion on the responding party giving said party an oppurtunity to withdraw the offending pleading. Therefore my brief responses is "I'll look forward to reading your motion, and then using my safe harbor period to determine what I will do". To date in 7 seven years of practice I have yet to have a sanctions motion filed against me, nor even one served on me. (I have gotten sanctioned for stupid shit like missing a hearing and not filing status reports, but those occurences are solely my fault).
6. Using Some Sort of Stupid Term like "considered you and your client warned" ; "govern yourself accordingly" ; "all legally available remedies under all applicable laws"
My Responses: LOL. Do what you need to do dude, but if you are trying to show me how serious you are try something else, because stuff like this makes me laugh.
Anyway, it is my belief attorneys do and use the above actions to show how serious they are. I can't speak for others, but I'm fairly positive my reactions and/or opinions of all of the above are in the minority to some degree.
For informations sake I would handle the above situations as follows:
1. I call people by their first name or any other name that they request. I use titles for military ranks, doctors, dentists, academics, judges and maybe certain older people. If you want to be called Mr., too bad.
2. I don't send letters by snail mail
3. I do not do this
4. I would never order a secretary to do this, because I consider this action to be beyond disrespectful.
5. I don't threaten, if I'm going to do something, I'll do it. I think I may have served one sanctions motion in 7 years and I believe the issue was resolved without anything being filed.
6. I usually just say what I am going to do i.e. file xyz motion seeking xyz relief on xyz day.
Now that we have covered, some things I think attorneys do to sound serious, I'm going to mention some things I think serious attorneys should do, to like loosen up and enjoy life more.
1. Referring to opposing counsel in correspondence as "Mr. Faler"
My Response: Judges call me Mr., and to everyone else I am Matt. (not entirely true, many of my friends call me by a few nicknames, but I do not use them professionally).
2. Sending Letters on Fancy Stationary
My Response: We scan everything, so I will be reading your letter on pdf regardless of the cotton stock.
3. Attaching a Signed Letter to an Email
My Response: This drives me nuts. I can literally remember the last time I did this (ironically trying to sound like a hard-ass to a client who hasn't paid his bill yet). Before that, I cannot recall. I've heard a bunch of reasons for it, but all of them suck. If you want to communicate to me something in writing, write an email, put my email address in the send block, and press send. It is that simple. The attachment part does not make me read it more attentively, think fuck around time is over, or think wow, so and so must really have the goods on me / my client, so I'd better acquiesce to all their unreasonable demands on the spot. I have largely instituted a new rule: opposing counsel gets one email letter attachment, before they get the "I will delete any correspondence attached to an email" schtick. And I will do it.
4. Sending a Signed Letter in an Email from a Secretary
My Response: This is not acceptable to me in any way, shape or form. I by the very nature of my practice am the lead attorney on my cases. Therefore, I communicate with attorneys only. Secretaries, paralegals (with a few exceptions usually for trustee personnel) do not send me anything, or more specifically, secretaries who send me attached correspondence drafted by themselves or their superiors will find it deleted and a response sent to the attorney stating as such. This is done because opposing counsel is trying to show me they are so busy that they can't bother to send an email. And I delete it because I am too busy to open correspondence from non-attorneys.
5. Threatening Sanctions
My Response: This is my favorite. "if you don't do XYZ, I am going to seek sanctions pursuant to whatever section and blah blah blah". I really love the bolding. In fact I love all correspondence and pleadings with bolded and italicized parts, it really makes understand how grave the matter at hand is. Whenever this happens, I always give the same short but LEGALLY CORRECT RESPONSE and this whether it be Cal Civ Pro, FRCP, or FRBP before any motion for sanctions is filed, the moving party must serve the motion on the responding party giving said party an oppurtunity to withdraw the offending pleading. Therefore my brief responses is "I'll look forward to reading your motion, and then using my safe harbor period to determine what I will do". To date in 7 seven years of practice I have yet to have a sanctions motion filed against me, nor even one served on me. (I have gotten sanctioned for stupid shit like missing a hearing and not filing status reports, but those occurences are solely my fault).
6. Using Some Sort of Stupid Term like "considered you and your client warned" ; "govern yourself accordingly" ; "all legally available remedies under all applicable laws"
My Responses: LOL. Do what you need to do dude, but if you are trying to show me how serious you are try something else, because stuff like this makes me laugh.
Anyway, it is my belief attorneys do and use the above actions to show how serious they are. I can't speak for others, but I'm fairly positive my reactions and/or opinions of all of the above are in the minority to some degree.
For informations sake I would handle the above situations as follows:
1. I call people by their first name or any other name that they request. I use titles for military ranks, doctors, dentists, academics, judges and maybe certain older people. If you want to be called Mr., too bad.
2. I don't send letters by snail mail
3. I do not do this
4. I would never order a secretary to do this, because I consider this action to be beyond disrespectful.
5. I don't threaten, if I'm going to do something, I'll do it. I think I may have served one sanctions motion in 7 years and I believe the issue was resolved without anything being filed.
6. I usually just say what I am going to do i.e. file xyz motion seeking xyz relief on xyz day.
Now that we have covered, some things I think attorneys do to sound serious, I'm going to mention some things I think serious attorneys should do, to like loosen up and enjoy life more.
Attorneys are too Serious Part I
First, a little background on why I believe the title of this post is true. I was once asked (nevermind whom) what feeling I have felt or most strongly felt my entire life. This was an easy question. The answer is : different. Not different good, not different bad, just different. Specifically, as far back as I can remember I have looked at the world in ways that are different from most. I call this vision, others call it eccentric, some insanity, a few charismatic (I like these people a lot), and far too many call it bullshit.
Anyway, virtually everytime I pursue a new endeavor, I quickly realize that I'm likely thinking about things for the most part outside the norm. A good example was law school. I started law school at age 27, about a year after I left the Army. I hadn't been in a classroom (Field Artillery OBC excluded) in 5 years. I really didn't know much about the law. I had no idea was law review, moot court, inns of court (still don't know what this is) and/or mock trial were. I certainly didn't know that the preceeding what were all the smarts kids did.
I remember one of the big fears first year was getting "called on" by the Professor and asked questions you clearly couldn't possibly answer. I'll admit this was a little unsettling to me, but it didn't really inspire me to study more or less than I already did - I mean I did my best to learn the material but if I didn't get it or whatever and I got called on, so what? What was the worst that could happen? Probably look stupid. I think this bothered many people a lot more than me.
Same thing will finals. It was a little stressful, I suppose, but again all I can really do is my best. If I get a shitty grade so what? I figure if I learned something than I can't complain too much. Now, I can say this is decidedly a very, very minority attitude in law school.
Most people care a lot about their grades. This is because good grades get you good jobs (see large firms, clerkships) or more appropriately good grades plus "activities" get you good jobs. I had no idea about this, I figured with an accounting degree, four years of service as an Army officer, and decent grades, that'd be all I needed. And seriously, while I didnt get straight A's (B+, I looked at my transcripts to verify) nor did I participate in any activity not involving softball or beer, I felt like I learned the material pretty well. And at the end of the day, I was ok with that.
I think the broader point here is I didn't take law school seriously, or more specifically, I didn't take it seriously enough. Or perhaps it is better phrased, my level of outward seriousness towards law school was much less than the average level of seriousness of my fellow students.
Sadly, this concept of "serious-ness" carries over to practice. Part II will discuss my observations on practice.
Anyway, virtually everytime I pursue a new endeavor, I quickly realize that I'm likely thinking about things for the most part outside the norm. A good example was law school. I started law school at age 27, about a year after I left the Army. I hadn't been in a classroom (Field Artillery OBC excluded) in 5 years. I really didn't know much about the law. I had no idea was law review, moot court, inns of court (still don't know what this is) and/or mock trial were. I certainly didn't know that the preceeding what were all the smarts kids did.
I remember one of the big fears first year was getting "called on" by the Professor and asked questions you clearly couldn't possibly answer. I'll admit this was a little unsettling to me, but it didn't really inspire me to study more or less than I already did - I mean I did my best to learn the material but if I didn't get it or whatever and I got called on, so what? What was the worst that could happen? Probably look stupid. I think this bothered many people a lot more than me.
Same thing will finals. It was a little stressful, I suppose, but again all I can really do is my best. If I get a shitty grade so what? I figure if I learned something than I can't complain too much. Now, I can say this is decidedly a very, very minority attitude in law school.
Most people care a lot about their grades. This is because good grades get you good jobs (see large firms, clerkships) or more appropriately good grades plus "activities" get you good jobs. I had no idea about this, I figured with an accounting degree, four years of service as an Army officer, and decent grades, that'd be all I needed. And seriously, while I didnt get straight A's (B+, I looked at my transcripts to verify) nor did I participate in any activity not involving softball or beer, I felt like I learned the material pretty well. And at the end of the day, I was ok with that.
I think the broader point here is I didn't take law school seriously, or more specifically, I didn't take it seriously enough. Or perhaps it is better phrased, my level of outward seriousness towards law school was much less than the average level of seriousness of my fellow students.
Sadly, this concept of "serious-ness" carries over to practice. Part II will discuss my observations on practice.
Unexplained Hiatus
This appears to be my first blog post in about a month. I always have a lot to say, so I can't blame writers block. Perhaps it was a combination of playing an excessive amount of poker, busy-ish work schedule, and perhaps a tad of pre-occupation with impending fatherhood.
Whatever the reason is, I'm back. I suppose the big news (besides becoming a father) is that I have created a Law Offices of Matthew Faler facebook page. Much like Linkedin, I am not sure what the protocol is for putting stuff on it is I can say with certainty that whatever the protocol is, I will definitely ignore it, because, well that is the way I do things.
Here is the linkedin profile and here is my Law Office facebook page. Feel free to comment.
The other less than big news is all the in progress series are going to be temporarily halted, because honestly I don't know where I left off. But I will try to pick them back up as time allows.
Even lesser news than the previous comment, is I have drafted two fresh off the presses blog posts which I'm just dying to cut from word and into the blogosphere.
I am going to finish them up now.
Whatever the reason is, I'm back. I suppose the big news (besides becoming a father) is that I have created a Law Offices of Matthew Faler facebook page. Much like Linkedin, I am not sure what the protocol is for putting stuff on it is I can say with certainty that whatever the protocol is, I will definitely ignore it, because, well that is the way I do things.
Here is the linkedin profile and here is my Law Office facebook page. Feel free to comment.
The other less than big news is all the in progress series are going to be temporarily halted, because honestly I don't know where I left off. But I will try to pick them back up as time allows.
Even lesser news than the previous comment, is I have drafted two fresh off the presses blog posts which I'm just dying to cut from word and into the blogosphere.
I am going to finish them up now.
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