Explain this one to me

In the past fifteen months or so I have run countless miles, ridden over hill and dale, and frozen my face number too many times to count in the bay. Compared to the way I ate two years ago, my diet is light years better, both in quantity and quality of food eaten. You would think after all that, my body would at least repay all the hard work and be in better shape.

One would think, right?

Apparently, my body has other plans. Instead of firming up, it has decided to expand not one but two pants sizes in the same amount of time.

Moments like these are just frustrating.

Back to work on my discovery requests.

Hidden in the shuffle

I'm actually surprised that yesterday was the first time I heard about it. Over at the Torts Prof blog, run by Professor Childs of the Western New England School of Law, there was a short piece about tort reform by executive fiat.

Apparently in 2003, President Bush signed Executive Order 13303 (This order has since been expanded and modified by E.O 13315, 13350 and one signed on November 29, 2004.). These orders deal with claims against the Iraq Development Fund, the Iraqi oil industry, and anything arising from the sale or marketing of Iraqi oil. Essentially, with four strokes of the pen, President Bush has eliminated tort liability for entities working in Iraq, making them effectively immune from civil tort claims. Anthony Sebrok and Claire Kelly have a really well written analysis of this decision by the Bush administration.

Essentially, this is one step beyond what the FDA is trying to do with its new labeling regulations for perscription medicines. Instead of merely limiting the injured's recourse, they are eliminating it entirely.

Experts

I wish, when I was working for my previous firm, I had access to the article that Evan Shaeffer linked to from his trial practice website. Its a nice, concise, article by James L. Ewing, IV, and Jason D. Gardner, on the steps to finding an expert and the using them effectively.

Alright, back to propounding my discovery.

Tri Training Week In Review

Well it started out as a good week. Instead of taking Monday off, I just moved up the calendar, figuring that Wednesday would be a bear of a day. Which it was.

Only Thursday turned out to be one too, so when I left work around 11 p.m., I bagged it for the night. And then I collapsed again on Saturday.

Over all, the time I did put in training was good solid time. I'm just not so happy with my dropping of the three days. However, my leg seems to be appreciating the lighter load since its just tight now, not in pain like it was the previous weeks.

In addition to the training, I finally got a sit down with the nutritionist. It went pretty well, although there were points I really did not ennjoy (such as explaining my whole semi-colon thing which I am not going to recount here.) This coming week he is supposed to send me a list of supplements that I should be on in order to enhance my training (not the Jose Canseco kind. My semi-colon leaves me not absording certain things that I need to be better).

So its a smaller step forward this past week than I had intended. However, thats better than the last couple of weeks. This week will be better.

Bummed

Yesterday was just one of those days that I do not want to repeat. It was not particularly bad, it was just filled with news that I could have done with out hearing. Top of the list was the election results in West Bank and Gaza.

Apparently, in an effort to prove the Abba Eban saying correct, the Arabs elected a Hamas government to essentially take over the PA. I understand that they feel oppressed, that they have a grievance (not that I agree with their grievance), and a host of other problems. But the only thing that electing Hamas is going to do is create some social programs with the PA's money, rather than seeing it being siphoned off into Arafats' accounts (or those of his successors), to go along with their campaign of violence against Israel in particular, and the west in general.

I guess it would be too much to hope that the Arabs would choose someone in the Michael Collins mode.

Another chance looks to have been lost. Thanks Hamas.

Interesting case

Alright, I am really a geek when it comes to off beat cases. This is not to say that I wax quixotic about Supreme Court pronouncements on tax or IP law. What I like are those weird cases that come up from the trial courts where the two sides obviously hate each other (and sometimes with good cause). The best ones, which I have seen anyways, come from Family Court cases involving dissolutions (or what normal people call divorces). My all time favorite one is the "Stalingrad Defense" case, which I have lost the link.

But the one that popped up on law.com today seems like fun. Apparently the wife is not disputing the marriage, but disputing the divorce, which apparently took place almost 20 years ago. The link to the article is here.

3 minutes 16 seconds

Why did I do it? Why, oh, why did I do it?

Mr. Federline, I want those 3 minutes and 16 seconds back, along with the brain cells which died as a result.

Must cleanse with AC/DC now.

Self-Flagellation

If there is one thing I do not like, it is subpoena for documents. For some reason, I am fine when it comes to doing most other types of discovery work, but something about the damn subpoena for business records always causes me to do it wrong.

So here I am, redoing it what I thought I had done right. Yes, I am a moron on occasion. I am not letting this happen again! I will become very good friends with the CCP section on it, as well as the applicable part of the Rutter Guide.

Self-flagellation is over. You are now returned to your regularly scheduled lives.

Quandry

So here I am, still pushing paper at a contract job while about three blocks over and one down, my office sits unused. I do not like the contract job, but right now it is providing the bulk of my money. And after the last two weeks, and the expenses of setting up the office, I need money coming in the door right now.

However, I also need to get out of this temporary situation and start moving at building up my own practice. There is more interesting, more rewarding work to be done than the contract work I currently doing.

The only problem, I still do not have a client of my own. I have some contract work that is being pushed to the backburner becuase of the biglaw contract job, but still no paying clients yet.

Maybe I can convince one of the clubs on Broadway that they want to overturn a city ordinance or two, like they did in Florida? Somehow, I do not think my mother would be happy to hear about the way I would use my legal education.

Who am I supposed to trust?

One of the stories I follow pretty regularly is the NSA eavesdropping/domestic spying program authorized by President Bush after 9/11. The more I read, the more confused I get.

Now I understand, and encourage, the gathering of foreign intelligence to protect the US. The question that no one seems to be answering (and if I have missed that answer let me know) is if they were monitoring purely domestic telephone conversations (and other forms of communication) between U.S. citizens who are supporters of terrorist organizations.

I will be the first to tell you, I do not have any experience with FISA. It just seems that if they are monitoring domestic communications, then there needs to be a warrant (Yes, I understand that they say its communications between targets in other countries and agents in the US, but anyone can say anything at this point since there is a lack of information). The breakdown, at least in my mind, hinges on how we are going to define who is a foreign agent.

When FISA was initially enacted, the drafters were not contemplating terror groups. These groups are essenitally nationless actors, at least in respect to the ones we are dealing with during this current incarnation of the "War on Terror". These groups receive support from a variety of sources, including some foreign governments and private benefactors both in the US and abroad. Although they, in some cases, receive subsidies from foreign governments, I am not sure one could successfully argue that they are agents of those governments. The goals of the terror groups and the governments may coincide but the terror groups are not controlled by the government. Its a bit like, at least in my mind, an alliance and not integrated group. (Again, if someone would like to correct me, go ahead and show me the mistake I have made.)

Robert Turner, a constitutional scholar, argues, that there is inherent authority in the Constitution for the president to authorization the type of activities which the NSA has apparently conducted during times of war. He states, that according to precendent, joint resolutions of Congress are constitutionally indistinguishable from a formal declaration of war. However, it seems like this is something that was not contemplated by the framers. It would seem that terror groups are not nations in the sense that the Constitution would recognize war could be declared against. They seem to be closer to pirates and other outlaws that existed contemporaneously. No declaration of war was needed to take action against piracy. However, I am sure that Mr. Turner would disagree with me since he cites the resolutions passed by Congress to support Jefferson's campagin against the Barbary States. In turn, I am not sure that the analogy works since in that case, the pirates were effectively the navies of the Barbary States and worked at their direction.

Since modern terror groups seem to be nationless, though made up of people from various nations, how do you redefine a foreign agent and not include legitimate political groups who are not practicing or supporting violence. If you make it too narrow, you lose some of legitimate targets of surveillance. If you make it too broad, you include groups which want to achieve change via legal means. If you do not definte it, you make it too arbitrary.

At least for me, my fear of the third route has to do with the way the Bush Administration has treated dissent, of any type. Furthermore, it has to do with some of the choices that the President made in filling out his cabinet, especially when it came to appointing John Ashcroft as Attorney General. This was a man who seemed more concern about the state of dress of statutes at the Department of Justice building than civil rights.

Which is why when I read the following, I do not have great faith in whether corners were unreasonably cut in listening in on conversations. According to an article in Newsday, General Michael Hayden, deputy director of the NSA, stated, "The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general[.]" The Attorney General was of course: John Ashcroft.

Interesting looks at medical malpractice

In between documents, I scan through the web for interesting articles to keep my mind occupied. Today, while looking at the guest columns on the Legal Underground, there was an interesting take on medical malpractice and tort reform. While I did not agree with it, it was one of the better writings I have read about the situation.

At least until I looked down in the feedback area of the posting. There I found a link to an article in Medical Economics. The article managed to do something I have not seen before: it did not blame a single group. Instead, the author laid out what his research had lead him to, and what I think is probably closer to the truth than what either the right or left wings of the country want to admit.

Essentially, he states, that there is no reason for the state of medical malpractice. Some of his proposed solutions I think would be unacceptable, but I like a few of them. Its an interesting article that you should look at before someone starts telling you how its all the (choose one Lawyers/Insurance Companies) fault.

Stupid Question of the Day

Normally, I would not put this up here. However, I remember going to school back east with people that had gone to high school with the participants, so here it is.

According to a story sent out by the AP, there will be a televised reunion betweeen the now divorced Buttafuocos and Amy Fisher. Apparently, Joey Buttafuoco wants to learn something during the reunion.

As he states in the article, "I've been asked about a million times by Mary Jo, `Why did Amy shoot me?' I was never able to get that answer[.]"

Call me crazy, but it might have something to do with having sex with a 16 year old girl, telling you that you loved her and that it was just your wife standing between the two of you being together.

But then, I am just spitballing.

Two A.M. thoughs (almost)

So I should be sleeping.

Why?

Because in five plus hours I am supposed to be doing a practice triathlon which starts at 9 a.m.

Why am I not psyched?

Simple. The past three weeks of training have not been my best. December, when I was sick as a dog, was a wash. I may even post my worst time ever on this particular course (which I have done two races on before). And I am not eager to do that.

After this month, February is on notice. Anything on this body breaks down and I am returning it under the Lemon Law!!!!!

Alright, I will now return to trying to sleep.

Well, after I do one last thing.

I am very sorry about the quality of my writing lately. After reading my previous posts, I have decided that I need to increase the quality of my posts (as well as my spell checking). G-d forbid any of my old teachers run across this. They will think I never learned anything.

In two minds..

Alright, while I realize that I am probably the only one reading this (which is fine, I'm used to talking to myself), I figured I would put this in anyways.

Although I am starting my own firm, I am still doing contract work to bring in money while I build up clients. Most of my hours for the past two months have come working at one particular firm. And after an initial burst of insane hours, we settled into a more liveable pace.

Or so I thought until I was called into the office of project head on Tuesday. The project head informed me that the project deadline was Tuesday. Which came as a shock to me, since the last I had heard was that the project was to be finished at the end of the month. Not only that, but they have reduced the staffing the job to me and one other temp attorney. So now everything has to be completed ASAP.

Consequently their poor planning and communication of their needs, I now get to be there until ridiculous hours with the added fun of being micromanaged now by the head of project.

Tom the Temp runs a website detailing his life as a temporary attorney for biglaw firms in New York. Although he seems a little more angry than I ever get, weeks like this make me agree with him. Fortunately, I will not be doing the contract thing that much longer. (Or that's the plan)

Protecting Those Who Need It The Most #1

So I was making my sweep though the law blogs today when I ran across an item at GreedyTrial Attorney. Which lead me to this link, where Mr. Lamb talks about the latest in the Bush Administration's attempt at "tort reform". According to the source article, from the Wall Street Journal, the Bush Administration appointees at the FDA are contemplating releasing a new drug labelling regulation to enhance the current regulations. While everyone seems to agree that this new regulation is needed, what the appointees have apparently added into the regulation is some pre-emption language.

What are they pre-empting? According to the article by Anna Wilde Matthews, the new rule would, "declare that federally approved medication labels pre-empt state law, a move that could strengthen pharmaceutical makers' defenses against lawsuits claiming injury by the companies' products."

Essentially it would say that there is only one standard, the Federal one, and that state legislatures cannot enact laws which would extend additional rights to the Federally imposed minimums. Appparently the poor drug companies are just suffering too much from having to make their drugs safer. The industry's argument is essentially that with 50 states, plus the District of Columbia, able to establish a patchwork system of additional regulations on the drug companies. This is bad, apparently, because it second guesses the FDA.

And it also helps to protect the ailing the drug industry. Or is it an ailing industry, beset by lawsuits which the Bush administration and their appointees at the FDA have to protect? A quick glance at the Merck information shows that the gross profit over the last four quarters has remained between 4.0 and 4.3 billion dollars (there was a bad Q1 in 2005). Now I am not an economist, but to my layman's eye, it certainly looks like they are making a profit. Furthermore, Merck, which is going through a series of law suits (as of my last check, going 1 for 2 in verdicts) has seen an increase in non-operating expenses. However, in that same quarter (the end of last year) it also saw an upswing in its sales.

It is true that this past year, the big pharmaceuticals have seen a rather large loss of profits. However, as the Fortune article, available here on the CNN website, point.s out, this is largely due to the expiration of patents allowing generic drug manufacturers to get into the market.( So probably what they will want to do next is extend the patent expiration date, again.) Not only that, but in the past year, the drug industry, meaning the patent holding, research and development companies, released 56 new drugs between 2000 and 2005. These drugs, referred to as blockbusters earned them over a billion dollars, each, for their manufacturers in the past year. And there are more on the way, which should, implies the article, more than make up for the patents which have expired in the past year.

So it appears that in the name of "tort reform", the neo-conservative administration is protecting those most in need of it. The rich, seemingly very profitable drug companies.

Furniture Shopping

A few years ago, I would never have had to drive to Santa Cruz to get a freakin' desk. Damn dotcom bubble.

As you may know, I needed a desk for my new office. Its sort of an integral thing for a law office (along with a couple of chairs and a filing cabinet). Now being a brand-new solo, I did not want to drop $300 plus dollars on a desk. I just do not have that kind of money to be tossing around right now.

So I looked around for used office furniture in the area. A few years ago, there were a number of places. The best of which was Big Mouth Used Office Furniture in South San Francisco. Unfortunately, it died as a result of a number things; the dotcom bubble bursting and Stapels/Office Depo stores among them. The few remaining used furniture places just do not carry used desks any more. One of the guys, who has been in business for years said, "Just can't find any in good condition anymore and people won't pay for junk." This was, however, not the idea at one place ($175 for a desk where the top was warped, the body of the desk was scratched, drawers were iffy and the whole thing needed to be redone is ridiculous, especially when the desk was not that nice when it was new!).

Eventually, however, I found a place. Only problem was it was in Santa Cruz. But I tell you, it was $15 worth of gas (since I was borrowing a gas guzzling SUV) but it saved about $150 in the cost of the desk and chair. Not a bad deal I think. The place I went to was Budget Office Furniture 1211 Water St Santa Cruz, CA 95062, run by Sheldon, Carroll, and John. Good selection and good prices.

Tri Training Update

So after last week, that soreness in my leg has not gone away. In fact, its becoming so painful when I exert myself (i.e. run for more than a mile or bike for more than 10 minutes) that it has really screwed up my training. Looks like I will be doing a lot of water running this week. Hopefully, I will be able to complete the triathlon scheduled for this weekend.

I do not like being injured!

Jury Duty Update

I got a little caught up since I was summoned for jury duty last week. In the end, I was finally sent out to a court room where the judge informed us that the case was estimated to take about 8 weeks. He then asked, if that would be a significant hardship to anyone.

I raised my hand and said "Yes, Your Honor, I have a solo practice and if I don't work I will not have any income."

First time I identified myself as such.

Maybe I should not have spoken so soon

I am now sitting through a training/orientation video on how to be a jurror. Its like watching those videos back in driver's education. Help!!!!

Jury Duty

So I have now reported for my 12:30 p.m. jury duty here at the civil courthouse in the city. Now, I normally would love to serve jury duty, but this was not the best time. Could the county have called me during the four months when I could not get even a lowly document review job? Or perhaps during the 15 months when I was at my last job and had a steady income with a low over head?

But why I have not tried to postpone or get out of it? Quite frankly, I would like to serve on a jury. It would let me see what its like on the other side of a trial. Also, it would let me watch the "show" from start to finish. Although I have gone to trial on a few occasions, the only one I have seen through to the end was a bench trial which is a bit different, from what I am lead to believe.

So I look at this as a plus in a number of ways. First, its the right thing to do. I'm a citizen so its part of the deal of living in this society. Second, its free education. Third, it gets me out of the contract job (doing document review) for an afternoon.

The hardest thing...

Find affordable errors and omission insurance... done
Find affordable business insurance.... done
Business license from the City.... sending in (essentially done)
Finding an affordable office space ... done


Of all the things I'm doing this week, who would have thought that the hardest, most frustrating thing would be to find a desk and two (maybe 3) chairs. It's not like I am one of these people who needs to have the best desk in the world, just something not from IKEA. I remember working from my grandfather and uncle while growing up at their used office furniture store (usually cleaning, hence why I decided to go to law school). All those nice, affordable two pedestal desk now seem to be gone. Whats left are white elephants and big box crap furniture.

Oh well, back to looking for furniture.

Wednesday Triathlon Update

Well my enthusiasm from the weekend took a hit this week. Since the week, I have been having this nagging injury that my coaches thing is a use injury.

Absolutely great. I need to train and my body is betraying me. Exactly what I need right now. Unfortunately I can not just call down to my leg and demand that Scotty fix them in 30 seconds. So I guess I will put my ice pack away and go to bed.

Looks like water running is in my future.

Wonder if he will be called a "liberal activist" judge by the religious right?

So in a stunningly, at least to my mind, common-sense ruling, a judge in Arizona found a woman guilty of being in an HOV lane while driving alone. Her defense was that she was pregnant at the time and therefore, the fetus should have counted.

As the article from the online edition of the SF Chronicle stated:

Judge Dennis Freeman used a "common sense" definition in which an individual occupies a "separate and distinct" space in a vehicle.

"The law is meant to fill empty space in a vehicle," Freeman said.

How long till the religious conservatives start calling for his ouster as a liberal activist judge who is imposing his agenda on the rest of Arizona?

And then she returns

Alright, about fifteen years ago, I was in high school. And there was this girl. I was never interested in her in that way. (Mostly because I was interested in her friend, but that is neither here nor there.) After not seeing her or hearing from her since about 1994, out of the blue a week ago I got an email from her.

Now way back when, there were a number of people who were held out as my "betters" (for lack of a better term). One of the few who lived up to that description, was her. (We will call her LH.) Why? Simply this: she is good because she backs it up and not because she was annointed by someone who happened to take a liking to her. So it basically became a game for me to try and over take her on the theory that "hell if she can do it then I can".

So after not seeing her or hearing from her in almost a decade, I get this email and find out what she has been up to since we last talked. Now, she is not a person who needs to make herself feel better by going on at length about what she has accomplished. I found her blog site, which links to the new firm she is helping to start.

And there I found her firm bio. (Am I stalking? I hope not, I just like to see what people I havent seen in a while have doing) The list of cases she has apparently first chaired in her first six years as an attorney was impressive. Were mine to be on the site they would be much, much less so. Essentially she found a way to do the things I wanted to be doing when I was in law school.

So you may be wondering if I am intending this to be a rant about the unfairness of the world etc. etc. etc.

Its not. Its the simple fact that once again, LH has swooped into my world and kicked me in the head and gotten me refocused again. Damn you LH! And thanks.

At the depo today...

For the non-lawyer who may read this, a deposition is informal setting where witness/parties are interrogated under oath by attorneys. Judges rarely attend deposition (if they do, its usually a movie or a case where the relationship between the various parties has so broken down that a discovery master has to attend in order to keep the peace.)

Lawyer to plaintiff (at approximately 2:30 p.m. or so today): "Good afternoon your Honor."

The lawyer in question is the parnter at a law firm and allegedly has over ten years experience as an attorney.

Musings on contract work

I know, I know, I know.

The first six months of being on your own is supposed to be the worst. Money for rent, money for office rent, money for new phone line, money for everything. And all going out. It would be nice if it would balance a little more in my favor.

On the upside though, a friend of mine gave me some contract work. It took me a lot longer that what I will bill him for, but I just cannot in good conscience bill him for the entire time (which is about 5 times what I did bill him for) because the work was only worth that. The rest of the time I spent on it was just double checking the code, the cases, and the practice guides so that there would not be a problem.

Perhaps I obsessed a little over it? Then again, I did tell him that I usually spent most of my time trying to figure out how to defeat the type of document. So it was very odd for me to draft one (and hopefully my friends will not find out that I did), since I kept thinking to myself, "Alright, if I put this in I probably can't successfully challenge it but if I put this in, then I definitely will." The one I refer to as the "Dark Prince" would probably laugh if he saw me doing the drafting yesterday.

Alright, later today I go to see someone about the possibility of some more contract work.

The Weekend

Saturday, 58 miles on the bike.

Sunday, swimming and core drills.

And now I am icing.

And if you are wondering why I am putting myself through all this? Click on the link and find out why I am training for Ironman Canada.

Triathlon Training 1

So this week I went back on schedule... sort of. Of the five scheduled workouts, I have done four and this weekend I have two more to go. Thanks to being sick for most of December, my aerobic base is shot and I am basically going to have to work harder to get back up to where the rest of the group is.

Overall, I am happier now that I am back in training. Now I just need to get back up to where the rest of the team is.

Go long.

More later.

A Door!

Alright, so now I have a door (as soon as the contract gets signed... I just didnt feel comfortable not having it in writing). As of January 16, 2006, I will be moving into my new digs in the Financial District.

I might have been able to get a better deal, but looking around, when I took into account the benefits of being in this deal, it looked fair. In a month or two, perhaps I will think differently. But for today, I have moved forward.

Back to the contract work.

Getting a Door for To Hang My Shingle Over

Maybe I just look at the numbers too much, but it seems like each time I look, my start up funds keep dwindling.

Part of that, of course, is because of the layout I did on my virtual office. After looking around and determining that at least in the begining I could not afford a real office, either my own or rented from another firm. So I signed up with a virtual office provider and gave them my money. Of course, it is just a little while later that a friend of mine puts me in touch with his landlord, who as it happens has a very reasonably priced office space to rent. A visit to the office, a meeting with the potential landlord and after looking at comparables in the area, it appears to be the best deal going for someone like me.

So as soon as I get the landlord back on the phone, more funds will be flowing out. I need to get some clients to balance this.

I just have to remember, there is work out there to be done. It will come as long as I do the little things to get the work in my door. And one of those things is getting the door.

Triathlon

So as you may have guessed from that little blurb under the title of this blog, I am preparing for an Ironman length triathlon. Right now, I am signed up to do IronMan Canada, in Penticton, Canada. I am doing it as part of the San Francisco chapter of the Leukemia and Lymphoma Society's Team in Training.

I'll be posint a bit about my training when I get the chance. for the past three weeks, I've been too sick to train so now I'm huffing and puffing going up the stairs at my building.

That is not a reassuring sign.

Fortunately, I have finally recovered from whatever bug had me laid low and have started to train again.

So what alot of people ask me when they hear about what I plan on doing is: why?

The simple answer is: why not. But, that's not the best answer. The real answer, I suppose, is that its an incredible test, both mental and physical. I'm also doing it to help raise money to help end blood cancers. If you would like to find out more about this, or to donate, follow this link: http://www.active.com/donate/tntgsf/tntgsfWShapir1

And have a happy new year.