Going back to square 1

So today I saw the doctor. He was not enthused about my knee. Instead of a referral to a physical therapist, he decided that it was problematic enough to go to a orthopedist. And that I probably should not be doing any triathlon training until this gets resolved.

For now, my training is on hold and it looks like I will not be doing Canada this year. This does not make me happy.

Random thought popping in my head

As I was putting up my last post (and kicking myself for my uber-insensitivity) I had a flash. I have decided that George, of Grey's Anatomy, needs a lesson in how to be a man. Who better to give that advice out than Veronica Mars?

Yes, some have criticized my television show choices. I do not care, both of those shows are worth almost anything else on basic cable, with the exception of Battlestar Galactica. And to just round out my top five, there is Boston Legal and House.

Stepping In It

So here's a good safety tip for the next time I do probate work. Never assume that people have been told that the decedent is dead just because you have been informed that the appropriate people have been informed.

It avoids situations where you start off with "Hi, I'm calling on behalf of {x}'s estate."

"What?"

"{X}'s estate, the executor has me rounding up all the accounts."

"Executor?"

"Um... no one has told you that {X} passed away on Valentine's Day?"

"What?!?"

"Oh... yeah... he... passed away on Valentine's Day."

Robbed

That's the only way I can look at it. Last night Stacy Keibler was robbed of winning the Dancing with Stars Competition.

Yes, I know she is hot, but that was not the reason I thought she should win. Drew Lachey was good and fun but I think overall Ms. Keibler was just the better ballroom dancer. Now if her partner had just choreographed something better than that Saturday Night Fever inspired number she would have been tied instead of down 4 points to Mr. Lachey and his partner.

But as my girlfriend reminded me, it was based on votes and lots of WWE fans don't watch ballroom. Apparently there are more 98 degrees fans out there.

Alright, back to work. Rant over.

Sitting here in my office

So this afternoon I rolled into my office in the afternoon after picking up some envelopes. That's right, my day is muy exciting.

In short, my referral client failed. She really had no other options open to her in her situation and I gave her the information that she needed to hear. After taking it all in, plus my recommendation that it would be fiscally better for her to not hire me, she decided not to retain my services. So with my new envelopes I sent her a letter confirming that she had not hired me but reminding her that if she needed help in the future to give me a call.

I tried working on my gender bending pro bono case but since none of the information has come in yet, all I could do was send her a letter asking the client to fill out some forms that would be needed. Not that I believe the client will be accurate, seeing as how in course of the initial interivew I caught them in a lie. Even caught, they maintained despite my subtle hints to the effect that I knew and that lying about it was not only pointless, it would not, could not help them in this situation.

So while trying to read the unisured motorist practice guide that is in the library here in teh suite I sublet my office in, I ended up watching the free episode of Conviction which I downloaded earlier this week. It has some promise, though I wish they had not taken the course they took with murdering an ADA. I know it is a series premier, but a DA getting murdered does not happen all that often (and at least through 2001, when I last checked the stats, had not happened). Though I wonder what bureau they are assigned.

Alright, back to worrying.

Update on the Training

So if anyone was curious, I am still training for my first Ironman distance triathlon. However, the problem has been this nagging pain in my left leg for the past two weeks. All I know for certain is that it is not a recurrence of my ITB issue (I wish it were that simple).

Even with the pain, I managed to complete the Danville Double on Sunday. That was an 80 minute spin on the trainer in the parking lot, followed by a 40 minute run out and back. After the run, we hopped back on our bikes for what was supposed to be a 29 mile ride at an average rate of 15 miles per hour (I was 14.7mph, but that was due to the fact that I got lost on the way back and took a wrong turn and was wandering about for a bit trying to get my bearings.) Then, after the bike was done, it was time for another 40 minute run. By the time I was done with the bike, I was only able to walk because my leg was just not cooperating.

After chatting with the coach and unnofficial team PT, I was put on a restricted sort of schedule while I await the visit to the doctor next week (earliest I could get the appointment) to see what really is the problem with the leg. If it is one thing, then I should be able to go on. On the other hand, the PT thought there was a possiblity it could be the beginning of a more serious problem.

So why am I doing this to myself? Well, if you click the on the link on the side reads "Help Fight Cancer", you will see that this is for the Leukemia and Lymphoma Society. This would be my fourth triathlon with them raising money to help eliminate blood cancers (which would be a very good thing.). So if you have the inclination... please help out and donate.

It was a nice Saturday (Or "Hello Pot," said Kettle, "You're black!")

Then I logged on to the internet and made a sweep through my blogs which I had not been doing for the lat couple of days because of things going on in my life.

And that is when I found this over at the TortsProf Blog. According to Professor Childs' article, the Bush Administration has decided that its approach to "tort reforms" are not goin fast enough. Rather than wait for the legislatures and voters to approve the measures that they believe are in the best interest for the country, they have decided to go ahead and establish regulations essentially eliminating the rights of people to sue because of defects in their products. The first two that I am aware of are the FDA's rule about labelling and the Consumer Product Safety Commission ("CPSC") rule regarding matress fires.

The mattress rule was approved by three commissioners (Chair Hal Stratton, Vice-Chair Nancy A. Nord, and Thomas Hill Moore). Mr. Stratton and Ms. Nord are both Bush appointees. Mr. Moore was initially appointed by President Clinton but was reappointed by President Bush. A portion of the meeting's transcript is posted by the agency here. In it they tout that the new regulations will save 78% of people who would have been killed by mattress fires under the old rule. Interestingly, they do not include in their sound bites anything about the bit of the regulation where the take away the right to sue.

However, Mr. Moore, although voting in favor of the regulation (which looks like it was something long overdue), made it clear that he was not voting for the preamble. In his written concurrence, he went out of his way to state that the Executive Order which required the CPSC to insert the preamble regarding the preemption issue.

Mr. Moore' s statement aside, I find it interesting what the Bush Administration is doing. It is using a non-elective body to create and change the laws. I seem to recall some Federalist society people railing against that when I was in law school... or perhaps it was a member of the sitting administration talking to the faithful.

At least when the left does it, they are honest about what they are doing. I wonder why the Greedy Trial Lawyer will say about it?

Personally, I think its a symptom of the problem that both parties have in this country. However, today I am calling the Republicans on it. Just another example of their cronyism.

Changes

Yesterday I went to the nurtitionist again for what she calls "Food Balancing". Anyways, it was about what I feared. Essentially, I am going to have to change everything that I eat. For the next month no milk products (ice cream, I will miss you), no red meat (see you pastrami),or gluten (bread.... agggghhh!!!!).

In addition to all the "fun" stuff going out of the diet, I will be getting in fish (well ok), legumes (haven't seen them in a while), and a boatload of supplements (they cost how much?!!?!?!?!?).

So maybe if someone had launched this lawsuit when I was younger, perhaps I would have learned some better habits.

Who am I kidding? I would still be eating the same stuff today.

A referral?

Looks like I will be getting a client in from the bar associations referral service on Monday.

After being in my office without any cases of my own for the past week or so, what will I do?

Now to brush up on custody battles.

One way of looking at it...

Is that the glass is half full. Unlike last year, I am still with my girlfriend. Yay me.

On the other hand, we had a death in the family, so now I get to exercise that probate knowledge that is locked away in my brain to help out.

All things considered, just another reason to hate the day before the ides of February.

Just a little thinking about my past clients

I am a baseball fan, which means I like statistics. Not terribly complicated ones. Simple things like batting averages, on base percentages and things like that.

With this in mind, I started thinking about my own clients over the past couple of years (not including the ones I had while I was working for the dark side). Why was I bothering to break that down? Well yesterday I was talking to someone who is going to be putting together a website for my new office. And he wanted to know, who I wanted it directed towards. The answer I gave him was too ... non-specific for him so he asked me what my previous clients had been.

In all, I have had 20 clients that I have helped through one thing or another. Of those twenty, 15% of them have been transgendered, 15% of them have had terminal illnesses, 10% of them suffer from serious PTSD, and another 15% of them have had serious peronality disorder problems.

When he heard about that, he suggested that I should advertise myself as "Angry Bell, the lawyer for crazies." Not helpful, but an idea. And not one my mother would like.

T-minus 3 days

With three days to go, I got my present for my girl friend for V-Day.

Hopefully this will ward off the evil eye from Valentine's Day, but somehow I doubt it. Last year, we nearly broke up for good. I'm not even going to go into what happened over the previous 20 Valentine's days (that would be since I started noticing girls). To me, its just an evil day that I would like to avoid.

All those with time machines that can get me to the Ides of February without a stopover on the 14th, please help!

This is what happens when I work late...

I procrastinate with online tests. Here is my latest result, not sure it is the one I wanted though.

You Are Scary

You even scare scary people sometimes!

How Scary Are You?

But then again, this one is not so bad...

You Are Internal - Believer - Powerful

You feel your life is controlled internally. If you want something, you make it happen. You don't wait around for things to go your way. You value your independence and don't like others to have control. You are a true believer in luck, fate, and karma. You believe that life is a game of chance - not a game of skill. You either consider yourself very unlucky or very lucky. No matter what, you don't feel like you can change the hand you were dealt. When it comes to who's in charge, it's you. Life is a kingdom, and you're the grand ruler. You don't care much about what others think. But they better care what you think!

The Three Dimension Luck and Power Test

And this one is actually pretty true

You Are a Boston Creme Donut

You have a tough exterior. No one wants to mess with you. But on the inside, you're a total pushover and completely soft. You're a traditionalist, and you don't change easily. You're likely to eat the same doughnut every morning, and pout if it's sold out.

What Donut Are You?

At least I'm meant for a cool car...

You Should Drive a Ford Shelby Mustang Cobra

You have an extreme need for speed, even when you're not in a hurry. And while your flying by, you don't want to look like every other car on the road!

What 2007 Car Should You Drive?

Some observations on yesterday's pro bono work..

My clients were boring. I mean usually when I get called, its because the coordinator has some interesting cases with wild-eyed freaks that will compensate me with wonderful stories that I can dine out on for months. No such luck this time.

On the up side, I did manage to negotiate two deals. One kept a single mother and her kids housed and the other transitioned out the gentleman from a Hatfield and the McCoy's-type of situation and even put some money in his pocket.

So all in and all, a good day for my clients. A bad day for story telling.

Its the Muppett Show

You Are Kermit

Hi, ho! Lovable and friendly, you get along well with everyone you know. You're a big thinker, and sometimes you over think life's problems. Don't worry - everyone know's it's not easy being green. Just remember, time's fun when you're having flies!

The Muppet Personality Test

Munich

So the other night, my girlfriend and I went to the movies and saw Munich. I had some problems with the movie, and was especially uncomfortable during one part where we meet Avner's mother. I'm not sure if the audience is being manipulated to feel (not in a bad way) that way, which I presume is much what Steven Spielberg is trying for, the that Avner must feel after what he has been through.

And tonight, while on a break from drafting responses to interrogatories (one more set to go), I found this editorial over on the Wall Street Journal's opinionjournal.com. I do not agree with all of it, because I basically disagree with the idea that Mr. Spielberg's film is trying to show anything other than the effect of killing on a modern person from a Western-style culture. Yet, I still find it a good read in the aftermath of that movie. Anyways, here it is. Enjoy.

Later today

Later today I have volunteered to go down and work with the limited scope representation project at the court house. What this means is I will be the attorney of the day for some people who are facing an eviction and try and help them out. On one hand, its a good project. Many eviction cases should never go to trial for a couple of reasons. In some cases, there just is not a defense. In many cases, especially in some of the lower income housing, there should not be a case at all, and would not had the lanldord followed the rules and been a little bit proactive about the problems.

On the other hand, it is a little frustrating. I have done this once before and felt humstrung because I did not have much in the way of leverage. I always find it easier to negotiate on behalf of my clients when I have something in the quiver that I can pull out and use. When I work with the limited represenstation project, I have not been able to conduct any investigation, any discovery, and have not been able to sit down with the client and adequately explore some options for them. This leaves me in a situation where I am all but begging for a deal and saying, effectively, "Look do a deal now or he is what you are going to deal with on Monday at trial call."

But all in all, it is still a worthwhile exercise. Plus, it also gives me some great quotes. For example, the last time I volunteered for the limited scope project one of my assigned cases (there were 4) was a woman charged with nuisance. After a lot of back and forth with the landlord's attorney to hammer out a deal, I took it back to my client. I laid it out for her and then she said, "So if I make noise late at night, they can evict me?'

"Not exactly, its not like you have to absolutely silent. Just keep it down. None of your art after 9," I replied.

"But my neighbor is like a freak. She can hear my microwave bell go off. What if I want to heat something up?"

"Think about getting a new microwave or turning off the bell," I suggested.

"But my crazy neighbor is saying that I pound on the floors. I think she should..."

"Do you?"

"Well," she said, "I used to do my art there..."

"And now you have moved it all to a studio. So no problem right?

"And tv, she's always saying I am blasting..."

"Turn down the volume," I suggest.

"But when I have sex... I mean I can get really, really loud when I have sex."

I looked at her and tried not to say all the things I wanted to. Finally, I suggested, "Maybe go to his place?'

She eventually did the deal. As far as I know, she was not evicted, so it must have ended up alright for her. I guess she did got to his place.

I wonder who I will get today.

And here it is

Thanks to Flash who was kind enough to send me the link for McGuyver. It is here. Along with some of the other ads.

Grumble Grumble

So as I seek out clients I am taking contract work. I think I have mentioned that before. Well we are now at the point of the job where the client does not know whether they want to continue to pay for my services, meaning my actual boss (even though I am an independent contract) has no idea how much work is left.

While I am not in the position of some other temps, its still frustrating. Of course, all it means now is that I get to get into my own office and take care of other projects that I have on the other burners. Including a pro bono case that needs some work that is much more interesting.

Alright, time to do the office switch thing.

I think this is literally the scariest things I have read today

Among the sites I read is the Wall Street Journal's Opinionjournal.com. I do not agree with everything they say, but they get a number of good articles over there that lay out, rather clearly and effectively, what the conservative take on a given issue or topic.

With all the kerfufluffle going on about the NSA terrorist suveillance program, today they have an editorial piece from Alberto Gonzales, the new Attorney General and the former White House counsel who apparently authored the opinion in favor of the program.

Mr. Gonzales' position is that the surveillance program is authorized by the Congressional Authorization for Use of Military Force ("AUMF"). The AUMF granted the president the ability to use military force against the terrorists wherever they may be. He then states that the NSA is a component of the United States' military force. He then references a portion of the FISA, which states that persons are prohibited from engaging in electronic surveillance, "in electronic surveillance under color of law except as authorized by statute." Since Congress passed the AUMF, there is a statue authorizing the the NSA to legally circumvent FISA.

That, of course, is not the scary part. And Mr. Gonzales makes the statement that the program was only for international wiretapping.

In my opinion, the scary part comes in the next paragraph. Mr. Gonzales writes,

Lastly, the terrorist surveillance program fully complies with the Fourth
Amendment, which prohibits unreasonable searches and seizures. Like sobriety
checkpoints or border searches, this program involves "special needs" beyond
routine law enforcement, an exception to the warrant requirement upheld by the
Supreme Court as consistent with the Fourth Amendment.

So according to the Attorney General of the United States, wiretapping is the 21st Cenury equivalent of a sobriety checkpoint. Which leads me to wonder how much he has read on the legality of sobriety checkpoints since Texas is listed as a state which specifically prohibits their use. I am not sure what he means by a "border searches". However, if he means passing through customs, where the 4th Amendment does not apply, then he seems to be moving towards just ignoring the 4th Amendment altogether.
Now, I am sure that he does not really intend this. Just as much as the DOJ staffer who wrote this for him does not wish, presumably, to see the 4th Amendment dissappear under the color of fighting terrorism. However, how much does the Attorney General's statement hold up?
The Supreme Court case which decided the legality of sobriety checkpoints is Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). There the Supreme Court weighed the balance between the need of the state versus the intrusion into the individual's privacy. The Sitz court found that the state had significant need to eradicate the problem of drunk driving because of the harms which it cause. In a similar way today, no one can rationally dispute the government's need to eradicate violent terrorists who have demonstrated the ability to cause death and destruction.
The court went on to examine the intrusion of the search and seizure (the checkpoint stop), found that there was a slight intrusion. The average stop lasted 25 seconds during which time the majority of the people stopped (126) were asked 2 questions before going on their way. Only if they met certain criteria were drivers pulled out of their cars and subjected to a field sobriety test.

Of course, according to Mr. Gonzales, this is the equivalent to wiretapping. The Supreme Court, on the other hand has had something different to say about that. In fact, the Government did try to state that wiretapping (in domestic criminal cases) should not require a warrant. The government's lawyers at the time urged for the creation of an exception to the Fourth Amendment, in the same where there are exceptions to the warrant requirement for Terry stops and seizures due to hot pursuit or searches based on consent. Justice Stewart, writing the opinion in Katz v. Unitd States, 389 U.S. 347 (1967) , flatly rejected this proposal. Saying allowing the government to bypass the warrant requirement would leave the determination of whether the search would violate the Fourth Amendment solely in the hands of the police. See 389 U.S. at 355.
Now, admittedly, Katz is a case concerining a purely domestic crime. However, a few years later, the Supreme Court in United States v. United States District court found that even where the governement is using the wiretaps to prevent the overthrow of the U.S. government by violence, a warrant is still required. Justice Powell, writing the opinion, stated, "These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch." 407 U.S. 297, 316 - 17. Justice Powell went on to note that,

We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

Justice Douglas, writing in his concurrence, went even further. He stated,

The Warrant Clause has stood as a barrier against intrusions by officialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives' most intimate conversations to be pillaged then why could not their
abodes or mail be secretly searched by the same authority? To defeat so terrifying a claim of inherent power we need only stand by the enduring values served by the Fourth Amendment. As we stated last Term in Coolidge v. New Hampshire, 403 U.S. 443, 455 : "In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law [407 U.S. 297, 333] and the values that it represents may appear unrealistic or 'extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won . . . a right of personal security against arbitrary intrusions . . . . If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important." We have as much or more to fear from the erosion of our sense of privacy and independence by the omnipresent electronic ear of the Government as we do from the likelihood that fomenters of domestic upheaval will modify our form of governing. 14 [407 U.S. 297, 334]

Now I believe that, probably, wiretaps of international calls and communications from known Al Qaeda sources has resulted in intelligence that has probably saved lives. However, if the government has been going beyound merely the international calls, then it has stepped over the line. This is not to say that the government should re-erect the wall between foreign intelligence and domestic intelligence/criminal prevention. It was wrong then, it would be wrong now. What I am saying is that, since it is constitutional for the president to order international surveillance, which may include international telephone calls where one party is in the U.S. (see In re: Sealed Case No. 02-001,) and , then use that to get the warrant. There is a 72 hour window in which to obtain one under the way the law stands now. Furthermore, the court in In re: Sealed Case held that in many respects the traditional probable cause factors required for a wiretap warrant under FISA are lower than they would be for a simple criminal activity. (Although it does require a couple of things that a criminal wiretape warrant would not. The Sealed Case court noted that there was a requirement that the person survailled be believed to be an agent of a foreign power, that there be a nexus between the target and the communication, etc.)
What then is the government afraid of?
So why is Mr. Gonzales' article so scary? Because it shows he is willing to justify the ends by whatever means. In an open ended conflict like this, where essentially the opposition has no state or legal entity, that kind of thinking can eliminate the freedoms which we seek to protect and export to other nations.
Anyways, this is my opinion alone. And I will now probably have someone listening into my phone calls.

Superbowl ads

So I missed some of the Superbowl ads as I did things at my place last night. Fortunately, most of them are available up on the web. My favorite is still the McGuyver one (though that GoDaddy girl is... unfortunately married), even though its no up that I can find. The one that disturbs me, why I am not sure, is the Burger King ad.

Please!!!!!

To all those people out there riding their bikes, please listen to this.

DON'T wear your headphones. If you must bring your iPod out on your ride, at least leave one ear free to hear what is going on around you. I appreciate the fact that you are out there on a long ride by yourself. So am I. It gets a little monotonous and you want something to take your mind off the lactic acid building up in your legs. But for crying out loud, at least be safe enough and aware enough of your surroundings so that you can hear what is going on around you.

If you are a one of those tourists out there riding over the Golden Gate, please realize that not everyone one wants to park on the Golden Gate. PLEASE, I am tired of almost going over the side because you are weaving back and forth and stopping short to admire the pretty view.

Thank you.

So this is interesting

I was trying to see what my own blog looks like...

And I am told that I do not have access to it. Hmmm....

Gonna Need Glue, Gonna Need Lotsa Glue!

I don't know if anyone else remembers though little commercials that KTVU used to run when I was growing up in the 1980s. They were two hand puppets, one a horse and the other a bulldog (I think), and they always had a little 30 second morality play about doing the right thing. The one I remember the most is when the dog borrows a lamp without asking and then breaks it by sneezing on it too hard. He then yelps, "I'm gonna need glu, gonna need lotsa glue!"

Anyways, that popped into my head when I read this article about what happened at the Fitzwilliam Museum in Cambridge. I would hate to have been that visitor.

Let Met Make Something Clear

I am a Giants fan. No, not that New York team that plays football and could not be bothered to be original and come up with a name of their own. I mean the San Francisco Giants. The team that was home to Mays, Marichal, and McCovey.

I went to my first game during its darkest times (1985) and I have followed their games from up to 10 time zones away. For me life all but ends when the season is over and begins anew when pitchers and catcher report.

However, I refuse, refuse, refuse to call that beautiful ballpark ATT. At least when the corporate rights were held by Pacific Bell, it almost sounded non-coporate. I could even remember misspelling it at one point as Pacific Belle Park.

But this ATT name is foreign, alien and just awful. Like they need another facility with their name on it. Its back to calling it Candlestick (I know, thats another sore spot.)

Rant over. Now back to work.

It was bound to happen.

With 42 million devices sold, you know that someone had to drop in on Appel's party and sue them for something. Its schaudefreude (which I am hopefully spelling correctly).

The party crasher in this case is claiming that the iPod, in all its forms, causes hearing loss. So is this going to be another McDonald's coffee case?

Normally I come down against most of the tort reform rhetoric. One of the few things which I do happen to agree with, when it comes to so-called "tort reform", is that the courts have been a little loose, based on my prior experience in toxic torts, as to what constitutes an injury. If this is just a fear of losing hearing, I hope this case gets tossed. If there is some actual impairment... that would be something else.

Have to see what comes of this one.

And In the Wake of the State of The Union

There comes this little ditty that I ran across about future federal government job outsourcing. Enjoy.

Back to work now.