Friends:

It seems lately that there is a new wave of violence in our schools, what with the recent shootings in Ohio, Tennessee, Washington, and Arizona.  And the year is only two months old!  While I won’t go to the length of calling these events an “epidemic,” it certainly shows that the times are changing even from when I was in school, which doesn’t seem to have been that long ago.  But where for me it would have been foreign to think of kids bringing guns to school, unfortunately my kids will have to adopt a more vigilant and suspicious mindset when going to what should be the safest place in the world, the school room.

With terrorism on the news every night, violence in the schools, increasing population and poverty, and an apparently out-of-control government, it certainly looks as if the eras of our predecessors were so much better than we have it today.  Sure we have the iPad and TiVo and laptops and George Clooney, but are we really better off than those who walked these same streets 50 years ago, 100 years ago, or even further back than that?

We have a tendency to look back with whimsy and fondness on the times of the past, romanticizing the era and maybe even wishing we could go back to a simpler, freer time.  For me, the particular era in time is right at the end of the 19^th century known as the Victorian Era in England and the Gilded Age in America.

Yes, those were perfect times.  Everyone dressed so smartly, with ties and tails and top hats, going to balls and dining at the club, smoking a cigar and drinking a scotch, high tea, perusing the newspapers and opining on politics.  Catching a hansom cab for a ride through Hyde Park, taking in the theater, and speaking in the Queen’s English, which always sounds so darn polite! 

Ahh, the Victorian Age, when skyscrapers did not blight the architecture, when the smog and fumes came from factories and not from cars, and when everybody treated everybody else with dignity and respect- and more importantly, a time in which crime and violence were virtually unheard of.

Gosh, weren’t things so much better then?  The time of Dickens and Sherlock Holmes and myriad others whose sole passion was literature and the creative arts.  I think of those times and I can picture myself settled right in the middle, with top hat and tails, walking stick in my hand.  Can you picture it?  It’s… perfect.  No worries about violence in schools or international conflicts (consider that World War I was still over 20 years away), the only concerns being of happiness and joie de vivre.

But then I come back to Earth from my pie in the sky fantasy.  In the Victorian Age, medicine was still in its infancy, surgery was quite primitive, and education was unpredictable.  The class system was in full force—you were either upper class or you were… what?  Relegated to the working class, the manual laborers, the street-sweepers and the barkeeps?  And where would I have fit in?  Would I have been a successful attorney, the same as I am now?  Or would I have been a struggling writer, running for stories to sell to the newspapers while I work on the great novel that may never be published?  Or would it have been worse for me?  A black cloud above my head, debts putting me in prison, and a family going hungry?

It seems that to romanticize the past is to short-change the present.  Despite all of the struggles of the world, the frightening people and uncertain future, I still come back to this being the gilded age; this is the best time to be alive.  Because our present is what we make of it and we have the power to make it great.  The past has already happened and its history has already been recorded, but tomorrow is the blank slate.  Tomorrow is the story that has not yet been told and we, each and every one of us, is the author of our own history.

Pretty darn exciting time to be alive, right?

Friends:

There are many attorneys who not only put on their business cards that they are attorneys, but that they are counselors as well.  You may be intrigued to find out that counseling, while a fundamental aspect of our profession, is not taught in law school.  Yet we as attorneys are expected to do just that, provide counsel.  In some areas of practice, counseling is perhaps more valuable than actual legal acumen.

As many of you know, a large portion of my practice is in the area of probate and trust litigation and typically involves siblings fighting with each other.  While the rules of the battle require that the remedy be monetary, in many circumstances the fight is over affection.  You certainly see people at their absolute worst when they couple the fight over love with demands for money—as if money will fill the hole left vacant by a lack of affection.

It is because of my daily involvement in these types of matters that my scholarship has turned to matters affecting dysfunctional families.  Though my scholarship has not resulted in the purchase of lofty tomes on family dynamics and psychology—that would be too simple.  Instead, I have turned to the fictional word of dysfunction and have done a fair amount of reading lately about turmoil and the disintegration of the family unit.  Two books in particular lately have been fairly informative on the topic.  And would you believe that I have solved the problem of the dysfunctional family?  Ok, maybe not.

The first book is entitled “This Beautiful Life” and it deal with a family decomposing in the face of a social trauma.  When their 14 year old son forwards a sexually suggestive video sent to him by a female classmate to a friend of his which within hours goes viral, the family, under the pressure of social stigma and the uncertainty of the son’s educational future the family completely shatters to the point of irreparability. 

The second book is called “The Last Child” and deals with the destruction of a family when one of the children (the 13-year old protagonist’s twin sister) is kidnapped.  The events of the story take place a year after the incident, with the protagonist still searching for his sister in the hopes that she is somehow still alive.

When I was younger, I would watch television shows like St. Elsewhere and ER and wonder why people enjoyed watching television shows which were steeped so heavily in death, sadness, and depression. Sure, the doctors would sometimes succeed in saving the patient, but the real drama, the real attraction to the show was the ability to be a fly on the wall as we witnessed another person’s torment and misery.  And I was confounded as to why people would invest themselves emotionally in the plights of others and would internalize the pain of these characters.

So you can imagine my surprise when I search out these same scenarios—except I call it academia.  Cute, huh?

You see, I am convinced that a large cross-section of the dysfunction in families can be attributed to one factor—a lack of communication.  People are afraid to bear their souls, to get treatment to help them with their demons, and to seek out their own family for help, the very people on whom they should be able to rely.  In the first book I mentioned, the story was told from the perspective of each of the three family members, mom, dad and son.  Each one of them bore their strife alone, refusing to seek help or even discuss their struggles with each other.  And because of this, the family unit frayed to irreparability. 

In the second book, the family unit was torn asunder because of the guilt a father placed on himself for his little girl’s abduction and a mother’s inability to release him from such pain.  The result?  A father who left and never returned, a mother who turned to drugs, and a son who tried to keep it together, while never giving up the search. 

Obviously the scenarios dramatized in the books were sensationalistic for the purpose of deriving readership, but I maintain that just as much can be learned from them as can be learned from the academic treatises and textbooks.  Pain, distress, and misery cannot be borne alone.  It is when these matters are not discussed, are not addressed as a unit, and are ignored by those who are trusted do they fester and lead to disrepair. 

Don’t believe me?  I heard this story from an opposing counsel who had heard it from a retired judge:  a daughter was so happy her mother was dead, that at the funeral she brought her CD player and played the song “Ding Dong The Witch Is Dead” at its highest volume and then dumped a vial of her own urine into the burial plot.  Think that family could have communicated better? 

I can honestly say that the story seemed too impossible to be true… except for the fact that I represented the daughter.

If I am expected to counsel clients as well as give legal advice, I need to understand what leads to the dysfunction.  A failure to communicate is as good a start as any.

Friends:

I am a product of the public school system as I am sure many of you are and I am still a huge proponent of it.  When many of my contemporaries were choosing to enroll their children in private schools, my wife and I moved out to Valencia specifically to take advantage of the tremendous public school system up here. 

But don’t be fooled.  Even though it is the public school system, it is an industry and, I am afraid to say it, they are putting themselves out of business. 

Back in the 1980s and early 1990s, I was a ward of the Los Angeles Unified School District and subject to one of the largest unions in the city, the UTLA (United Teachers Los Angeles).  This is what I knew of the UTLA:  They allowed the teachers to strike when they were upset.

As a young kid, the teachers’ issues of compensation, benefits, and union activity is as foreign as the lost language of Aramaic.  They certainly meant nothing to me.  So even though I heard that the teachers were not happy and that they were going to strike, I interpreted that as selfishness.  Wasn’t my education more important than…?

When my wife and I were looking to move our home in anticipation of starting a family, we looked in areas that were, admittedly, outside of the LAUSD.  This wasn’t specifically a snubbing of the school district that gave me so much, but was a statement that it was just too big, too unwieldy, and more importantly, too “political.”  These characterizations, though, were still powerful in me 20 years after I departed its programs.

I have said it before and I will say it again and again and again:  we as a society downplay or downright ignore the impact that our actions will have on our children.  Whether it’s allowing more and more violence on television, loosening the restrictions on inappropriate language in the media, or venerating the sex-symbol teenyboppers, we do not think how children will see all of this.

This is why it is so very important that we show them how important they are, that we consider the impact our actions and conduct will have on the succeeding generations.

And it starts with our schools.

Yeah yeah yeah, Rob, you’ve said it before.  But you’re going to want to listen to this one.  Because now, my ire and fury is not focused on the teachers or the unions, but on the school district itself and its board of governors. 

So to the Saugus Union School District, the superintendent, the governor, and whoever else has determined that public school education is not important, I say this:  SHAME ON YOU!!!

You have determined that our money, that the taxpayers’ money, would be better spent on extra assistants for you and for who knows what else, instead of using that money for its necessary purposes, like teachers and materials and art and music programs. 

My friends, the word has come down from on high that teachers will be losing their jobs and that class sizes will be increasing.  All budgetary issues, for sure, but of budgetary issues my children know not.  Consider the way Charlie Brown’s parents (and teachers – ha!) speak and that is what children will hear when they see their favorite teachers being fired, their desks being pushed closer together to get more into the classroom, and their art and music programs being taken away.  They won’t hear, “There isn’t enough money.”  They won’t hear, “The legislature hasn’t allocated enough money for public education.”  And they certainly won’t hear, “This hurts us more than it hurts you.”

No, instead this is what they hear:

“You aren’t important enough to us to figure another way and we do not think that your education is as important as some of the other things we can do with the money.”

We as a society fail to consider how our children will interpret our actions.  And now it seems that those with whom we entrust our children are the biggest offenders.

Shame on you!

Friends:

I am sick and tired of the world and TMZ/Entertainment Tonight/Extra, etc and the gossip rags taking gleeful joy in a celebrity’s train-wreck of a life, only to act surprised and shattered when they die prematurely.  Whitney Houston?  Ryan Dunn (of “Jackass” fame)?  Lindsay Lohan (ok, not dead yet, but coming?)

When Ryan Dunn died last June from a car accident caused by his driving at excessive speeds while intoxicated, his friends, family, and fans, showered the Jackass world with an outpouring of support and sadness.  His co-stars and best friends were distraught, inconsolable, and desolate.  It was heart wrenching watching these guys who basically pulverize their bodies for laughs break down and sob like little kids.

But while it is never funny for someone to die, let alone at a young age, his death was virtually foretold.  In fact, his friends had frequently commented that since he loved driving so fast he was one day going to kill himself.  But did his friends and family do anything about it?  Did they try to warn him off, express to him how devastated they would be if he died, perhaps suggest that he drive maybe a little slower?  And wasn’t it a few years earlier, in the exact same spot, that Ryan Dunn had had a similar type accident?

Twenty years ago, if you have told me that Whitney Houston was going to die at age 48 of causes likely associated with alcohol and drug abuse, it wouldn’t have surprised me in the least.  If it was obvious to me, then it had to be obvious to everyone else, right?  Yet over the past 20 years, instead of her fans and the media appealing to her to get help, to right her life and get back on track, we watched with amusement as her life spiraled out of control, just another celebrity who partied too hard, lived the life of sex, drugs and rock and roll, and went by the way of Jim Morrison, Janis Joplin and Jimi Hendrix. 

Seriously, don’t we all take a little bit of joy in the trials and travails of Lindsay Lohan and Britney Spears?  We see them as privileged starlets, trying to live the Hollywood lifestyle only to come crashing down in flames in front of our eyes, and we flock to it.  TMZ and other websites and “news outlets” of that ilk have created a society in which the self-destruction of celebrities is must watch TV.  Because they are celebrities, with their lives always on stage, it is ok for us to revel in their hardships.  Because they have money.  Because they have fame.  Because we put them on a pedestal and think that they are better than we are.

You know the adage that there is no such thing as bad publicity?  That’s what this is!  Our thirst for gossip about celebrities has created an environment in which they don’t need to remedy their ills, they don’t need to change or get better.  Without their bad publicity, some of them would have none and then where would they be?  Celebrities are a different breed from other people.  By the time they become rich and famous they have been told so many times how great they are, how special they are, how exceptional they are, that many of them need that constant reaffirmation of how special they are.  So the idea of not being in the public eye, of not being followed by cameras, is tantamount to being anonymous.

We as a society, by gawking at their ordeals, reinforce the negative behavior.  If they are on the cover of all of the magazines and are the lead stories on the talk shows because of their run ins with the law, or trips back to rehab, or embarrassing behavior due to substance abuse, and the alternative is a straight life with no publicity, the choice is an easy one.

I don’t mean to be cynical and I know that substance abuse is a disease that many find incredibly difficult to overcome, but wouldn’t their efforts be more likely to succeed if we support them in that, instead of glamorizing their problems?

Here is a perfect example:  anyone know what’s going on with Paris Hilton?  She seems to be flying under the paparazzi radar, what with her not getting arrested for driving under the influence, not having publicly embarrassing episodes, and not going to jail.  Thus, no publicity.

We have created the beast and then we act shocked and saddened when our idols succumb to the very disease we have glamorized.  We call their falls from grace tragedies.  We also have responsibility. 

So I am sorry.  I feel no sadness for Whitney Houston or Ryan Dunn or Michael Jackson or Lindsay Lohan.  I feel only outrage for the rest of the world that holds vigils and gives tributes.  Don’t wait until they are dead to espouse the ills of their abuses.  Don’t reinforce the bad behavior by gawking about it and making it front page news.  How do you stop a bully?  Ignore it and act like it doesn’t bother you.  How do you stop outrageous behavior?  Stop glamorizing it.  Take a stance that this type of behavior will land the celebrity in the worst place imaginable.  No, not a coffin… worse.  Obscurity.

Friends:

In case you were not aware, it is Charles Dickens’ 200^th birthday this week and as you no doubt know, I am celebrating.  Of course, I like so many other teenagers saw Dickens as a punishment, some cruel way that the educational system was sticking it to us, forcing us to read this boring, slogging, difficult English writing that was in no way enjoyable or educational.  You know that my tune has changed… and here is why.

Sure, Dickens wrote long books, books with many characters, books about times to which we in the 21^st century cannot relate.  But he also wrote about adolescence, which is wasted on the young.  Unfortunately, so is Dickens.  He MUST be read by adults, as a remider of their past…

There was a time when we didn’t know any better, when things were so much simpler.  We had an innocence and a purity which we have never been able to recapture.  It is a shame that youth is wasted on the young.

When we are young, we don’t know about crime or disease or war.  We don’t know about things that go bump in the night or terrorism.  Pirates only exist in Neverland.  We have an outlook on life and the world which is nice and tidy.  The princess always wakes up, the bad guys always look cartoonishly scary and obvious, and mommy and daddy always tuck you in when you go to sleep.  

But real life, the life of the grown up, is nothing like that.  It may be a question of what came first, the chicken or the egg, but at some point we leave childhood and the blissful naivete that lives there and enter the world of reality television, terror in the skies and tragedy.  Bambi’s mother died, but far off-screen– in real life we don’t have the luxury of averting our eyes or hiding under the sheets, believing that when we look back, all will be well again.

Of course, we all know that some children don’t have the luxury of living in oblivion, they can’t simply bury their head in their mother’s shoulders until the evil sorcerer leaves the screen.  They are forced to accept reality at an early age and have to decide how such reality will shape their future.  Will they struggle against reality and maintain their virtuousness as long as possible, or will they prematurely jump into adulthood despite their persistent immaturity?  For every story of a young girl who finds her way to success despite the turmoil and misfortune of a poor childhood, there are 10 more that result in crime or death or persistent pain. 

Think about the more notable novels of Dickens.  Did you think of “Oliver Twist” and “Great Expectations?”  Maybe “David Copperfield?”  Notice anything similar about those books, the most popular of Dickens’?  They all depict the life experiences of the young.  Child characters who view the world from a three-foot vantage point, staring up at the human race with mouths agape.  Even the illustrations which accompanied the serialized novels when first published depict the “heroes” as tiny creatures in a sea of giants.

And yet, despite the tragedies and challenges they face, the evil and treachery that they experience, they find a way to maintain their innocence, to maintain a view of life as having been un-foretold.  They start out in the bleakest of circumstances, but through virtue and decency, they overcome their plight.  Sure they don’t do it alone; of course they have help along the way.  But it is their character that attracts such wonderful people, benefactors, who help out.  Neither Oliver nor Pip nor Davy ever seems to say a cross word or act out in frustration; it isn’t their nature.  They are kids who don’t know better; Oliver doesn’t realize that Fagin is villainous and David doesn’t see that Steerforth is a bully.

Our kids have that same ability.  You can call it gullibility or susceptibility, but I call it paradise.  Wouldn’t it be nice to return to a time when the world was small, when all we knew was right outside our window?  Where being good and living right meant safety and eventual happiness?  Who wants to really live the life of the tragedian, where everything is gloomy and the sky is always cloudy and dark?

We can be that way again.  It takes work, but if we teach our kids that they don’t have to change, that bullies get their due in the end (always!) and that the good guys always win, wouldn’t that create a society of happiness?  Wouldn’t it make life more fulfilling?  Reading the stories of these young heroes is a sobering but heartwarming experience.  There is a certain amount of joy that one takes from living the growing up process all over again and seeing it through the eyes of the pure.  However that pleasure is tempered by the 11 o’clock news.

It is incredibly easy to understand why Dickens wrote so many wonderful stories about children…  It is the ultimate escape from reality– more fantastic than fantasy.  It returned him and his readers to simplicity, to innocence, to pleasure.  A pleasure which, sadly and “real” enough, we can never recapture.

Friends:

How well do you know your spouse or significant other?  Have they been married before?  Are they still married and you don’t even know it?  Does the State of California allow this type of deception?

No, this isn’t the beginning of a treatment for a screenplay I am selling around town.  This is real and when I tell this story to friends and family, they simply don’t believe me when I tell them the truth:  your wife could be married to someone else and not only might you never know, even if you wanted to find out, you likely wouldn’t be able to.

It’s called a “confidential marriage” and is exactly what it sounds like.  It is a marriage that the state will keep confidential, so that a search of public records would not result in its discovery.  What possible good can come of this, you might ask?

Well, it appears that the idea of a confidential marriage came from a good place of protection; to protect children born from long-term, though unmarried, couples from the stigma of being “out-of-wedlock” children.  It also was designed to address the issue of common law marriage, which is non-existent in California.  According to the California Family Code, when an unmarried woman and man, not minors, have been living together as husband and wife, they can have their marriage solemnized and a marriage performed, with the marriage license recorded though kept confidential by the county recorder.  Thus, if the world at large already believes that you are married, you can have the service performed and no one needs to know when the marriage actually took place… because the marriage license is only obtainable by either of the parties to the marriage or pursuant to a court order.

What could possibly go wrong?

Well, for one thing, if you wanted to do some background on your soon-to-be husband, you would never know if he was already married.  And we all know that bigamy is against the law.  So if your husband was already married, guess what?  Your marriage is against the law!

It sounds like it would never happen right?  Couldn’t be possible… and you would, unfortunately be wrong.

Consider these facts:

A man marries a woman by a confidential marriage, then a mere two months later, marries another woman in a public marriage, what we would think of as more traditional.  Even though husband lives with wife number two, his marriage to wife number one is never dissolved, nullified, or legally terminated and so, when husband dies, both women lay claim to his assets.  And who wins?

Interestingly enough, the answer is, in most circumstances, both of them.  You see, wife number two cannot prove that the confidential marriage was dissolved or annulled or legally terminated in any way, so her marriage is determined to be a bigamous marriage and thus illegal and invalid. 

However, don’t feel too bad for wife number two—the law does provide for her to be deemed a “putative spouse” meaning that if she can show that she had a good faith belief in the validity of her marriage, she won’t go away empty handed.

Look, it’s one thing for spouses to have affairs and engage in other extra-curricular activities while married; but what if those were not with a girlfriend or boyfriend, but another husband or wife?  You would never know about it and, more astonishingly, you would never be able to find out about it for yourself because the vast majority of case law on the subject addresses situations in which the discovery of the second marriage occurs after the death of the bigamous spouse.  Yep, when the spouse dies, that’s when the “other” spouse comes of the woodwork and lays claim to assets.

And the state of California allows this to happen.  The confidential marriage is just as legal and valid and provides the same rights to the spouses as a fully public marriage. 

Would you believe I have two cases going on right now involving confidential marriages??  Crap, maybe it is more popular than I thought.  Perhaps I need to depose my wife…

In the practice of law, you find all kinds of weird laws—I call them “hiccups” as in when the law was being written someone hiccupped and forgot what they really intended…

It certainly is amazing, don’t you think?

Dress codes in school is a hot button topic these days.  No, not for the students, for the teachers!

A few schools around the country are cracking down on how their teachers are dressing for class.  The days of jeans, flip-flops, gym clothes (for the non-gym teachers I expect) and sneakers on teachers may be ending, and if you ask me, it can’t come any too soon.

There are some people in this world who are worthy, just by virtue of their profession and their level of authority, of our respect and appreciation.  They are law enforcement personnel including emergency service providers, judges, military servicemen and women and teachers.  But that respect is not infinite; it needs to be maintained and continuously earned on a daily basis.  A police officer automatically commands our reverence, but that same police officer arrested for abusing his wife has lost that respect.  Teachers are the same.

I have always held the belief that if you want people to treat you with dignity and respect and, more importantly, take you seriously, you must dress the part.  We are a shallow and superficial society and first impressions may be all that we get, so it has to be a good one.  Want people to listen to you, give you a job, or just treat you politely, your appearance controls a great deal of that. 

Teachers are no exception.  If they want to be taken seriously, if they want to continue to maintain that respect, if they want to be a good role model for their students, they must dress the part.  What message are they sending to the students if they come to class in flip-flops and gym shorts?  If they don’t take their job seriously enough to get dressed up for it, then why should the students take school seriously?

Did you know that there is a dress code for lawyers appearing in court in Los Angeles County?  Los Angeles Superior Court Local Rule 3.43 states the following:  “Persons in the courtroom may not dress in an inappropriate manner so as to be distracting of usual sensibilities.  Attorneys and court personnel should be dressed with current customs as to their business or work attire.” 

Why is this the case?  Because judges and the judicial system demand respect and the easiest method of showing such respect is to dress appropriately.  Teachers who do not dress appropriately for class are not showing respect for themselves; they are not demonstrating to their students that they are entitled to and command respect by virtue of their profession.

Think of it this way—you are in charge of hiring the new employee for a position which will require public appearances and promotional events for your company.  Two applicants apply.  One appears for the interview in a suit and tie while the other appears in jeans and sneakers.  Without having looked at either one’s resume, which one do you think took the interview seriously?  With no other criteria on which to base your decision, which one of the two would you hire to represent your company?  If you wouldn’t hire the applicant in jeans and sneakers to represent your company, would you be comfortable having him or her educate your children? 

I accept the fact that my argument does not take into consideration the qualities of the teacher.  For every burned out teacher with no incentive to work hard but who wears a suit to class there is a teacher who busts his or her hump every day to be an educator but who wears jeans and sneakers and wouldn’t we as parents want the excited and dedicated teacher educating our children?  Hands down, no question, of course.  But is it that difficult to expect that teacher to dress it up a little bit?

In Milwaukee, a retired high school teacher of 33 years wrote a scathing letter to the editor, criticizing a teacher’s dress code as style over substance with too much emphasis being placed on what someone wears as opposed to the skills that one has.  Her major argument, however, was flimsy at best.  She queried where the teachers were supposed to get the money for the new clothes.  She snidely suggested Goodwill.  Really? 

You may think that I am wrong and I very well may be.  I would much prefer the teacher who is energized and sloppily dressed to the one that is spiffy but enervated.  But this is not a situation where changing the dress code will change the product.  Requiring teachers to dress appropriately for class will not be tantamount to cutting Samson’s hair.  They will not suffer a power outage and thus be unable to teach anymore. 

Remember I spoke of those commanding our respect simply by virtue of being in positions of authority?  Who are the first people in authority that our children interact with?  The teachers…

I go to court many times a month and it never ceases to amaze me how inappropriately attired some of the non-lawyer attendees are.  Shorts, baseball caps, flip-flops, baggy jeans, t-shirts, unkempt hair, unshaven faces.  I see it every time and this is when they are appearing in front of a judge who will be making a life-altering decision about them!  Where is the respect?

Teachers are our children’s first exposure to authority.  Do they want their students to respect them?  Then they need to dress like the respect that they command.

Even Mr. Belding wore a suit every day!

I apologize for this week’s email.  I am in trial preparation mode and the only thing on my mind are confidential marriages and interpleader actions.  So, unfortunately, no new content this week.  Instead, I wanted to re-post what I think is probably my favorite of all my past posts, and there have been 124 of them or so.  You probably have your favrite (hopefully?) so here is mine.  Have some fun with it.

If you are unfamiliar, law school exams are frequently comprised of lengthy fact-patterns from which the student is to identify the potential legal issues contained therein.  For example, a fact pattern concerning a character who enters into a contract and doesn’t perform, the student is expected to identify the potential claim for breach of contract, defenses that may exist, elements of the cause of action in order to state a claim, things of that nature.

Whereas everywhere a scientist looks she may find molecular activity, everywhere an attorney looks, he may find a cause of action.  We are trained to take our client’s stories and experiences and identify the traps, look for the pitfalls, and (if the client comes early enough in the process) ensure against potential disaster.

So when I watch television, for example, I spot the issues; sometimes without even knowing that the legal part of my brain is at work.  Thus, imagine my surprise when I identified many potential issues while watching that most wholesome of programs, a muppet movie.  The Muppets Take Manhattan, to be exact.

In all fairness, I am more critical and suspicious of children’s programming because of the lessons that are being learned by our children.  As the father of a 5 year old and 6 month old, I am very careful about what information is disseminated to them.  So when I watched the muppet movie, I was shocked and appalled by what I saw.  And it is because of that, that The Muppets Take Manhattan has been banned from my house.

What was the egregious error being taught to our children?  Well, it was one of improper employment practices. 

If you are unfamiliar with the movie, there is a scene at the end of the movie when the muppets are backstage getting ready to open their show on Broadway.  As they are heading to the stage, Kermit is asked if all of the dogs and pigs and chickens and whatevers can watch the show from backstage.  All of the friends that the characters had met up with during the movie have shown up and want to watch the show.  Instead of letting the dogs and pigs and chickens and whatevers watch the show from backstage, he tells them they are to be in the show.

First things first– I am not going to criticize the movie as being unrealistic but there is no way that any of the dogs and giraffes and birds and possums could possibly know any of the songs, the staging, the dance moves, or the lines from the script.  Kermit, you are opening on Broadway!  Do you really want to send animals that have no acting experience at all onto the stage to effectively carry the main opening number?  Umm, hello– how could any of the costumes fit?

No, the part that was ultra-distressing to me was the flippant method by which Kermit just gave all of these animals jobs.  I bet the show’s insurance broker, if you will pardon the vernacular, “shit a brick.” 

So let’s issue spot, shall we?  My issue spotting is, actually, not only from the standpoint of the lawyer, but also from the perspective of a business owner.

A) The human resources director did not have time to interview all of the new employees to determine if they were qualified for the job.  Did any of them have any experience on a stage?  Summer stock, maybe some commercials, or a pilot?

B) Did the employees complete the necessary new hire packet?  I assume they filled out a W-4 and an I-9, right?  How much withholding did Bear #3 request?  And if you will recall, the animals were introduced in various places of the country.  Is it possible that one or two or more of the new hires were born in a different country?  It is probably pretty easy for a frog to leap from lillipad to lillipad, crossing Lake Michigan from Canada.  I bet the border control agents aren’t covering that method of immigration.

C) Were the new employees given the employee handbook?  Did they understand that they were being hired for 8 shows a week, one show a day Tuesday-Friday and two on Saturday and Sunday each, with Monday off? 

D) Umm, anyone care at all about the unions?  The theater looked to be fairly large, so doesn’t that require that only Actors Equity members be hired?  Did they make sure to comply with the union’s rules regarding hiring and compensation and benefits and contributions and all of the other guidelines regarding employment?

E) Did Kermit check with the producer ahead of time to make sure that there was room in the budget to pay everyone?  He might be in breach of his contract with the producers, unauthorized hirings and firings without producer’s approval.

The list could go on and on. 

But let’s fast forward the story.  Fast forward to the day after opening night.  Everyone is hung-over from a long night of partying and celebrating.  Kermit and Miss Piggy and the gang were at Sardi’s all night, living it up.  Rowlf the Dog commandeered the piano while Fozzie Bear grabbed the mic and regaled the crowd with jokes.

As the cast rolls over to the theater for the next evening’s performance, they are met with a picket line.  The union is protesting the hiring of non-union workers.  The crowd for the show, unwilling to cross the picket line, demands a refund of their money for the tickets.  Chicken #2, who had called her agent that morning to brag about her new gig, informs Kermit that she will hold out because she wants to renegotiate her contract.  It seems that she wants her own dressing room and doesn’t want to have to share the stage with the bears for fear that she may be the bears’ next dinner.  She also has requested that her dressing room be stocked with M&M’s, but only the green ones.  The pig has filed a lawsuit for unfair hiring practices because he feels that he should have had a chance to audition for the role of Dog #5 but was discriminated against because he is a pig.

With all of the strife now looming for the show, the producer has decided to pull the plug.  It seems that since Kermit did not obtain employment practices liability insurance, there is concern that many of the new employees will bring wage and hour claims as well as unfair hiring practices.  The producer does not want the liability and has decided to close the show down. 

 What started out with so much promise… Kermit thought he was doing a solid for his friends by giving them jobs and having them in the show, but at the end of the day, it was like trying to catch a fly caught in fly-paper.  Kermit got stuck and he can’t get away.

Sorry my friends, the curse of being an attorney.  But you can well understand why I The Muppets Take Manhattan is out of the house.  Brooklyn and Kensi want to watch a movie, it will be on which teaches important lessons, like Scarface.

It is customary on Shabbat, the Jewish Sabbath, that parents bestow upon their sons the customary blessing that they grow up to be like Ephraim and Manasseh, despite the fact that Abraham, Isaac, Jacob, and Moses are the more noteworthy and memorable players in the history of the Jewish people.  And the rabbis have some interesting explanations for this, why such an important blessing on the holy day of Shabbat should be reflective of two of the lesser known members of the story of the Jews. 

First, a primer on Ephraim and Manasseh.  As we know, Joseph (he of the Technicolor dream coat) was one of the 12 sons of Jacob, sold to traders heading to Egypt.  After spending some time in prison in Egypt, Joseph eventually made a name for himself as the official dream interpreter for Pharaoh and, upon learning of his success, Jacob and the rest of his brothers moved to Egypt.  By that time, Joseph had already had two sons, Ephraim and Manasseh.  The tradition at that time was to bestow certain blessings on the male children of the family and Joseph brought Ephraim and Manasseh to be blessed by their grandfather, whose blessing was that Israel would bless their sons that G-d would make them as if they were Ephraim and Manasseh. 

So what was so special about Ephraim and Manasseh that generation after generation has bestowed this particular blessing related to them?  The rabbis, as you can well expect, have different explanations.

One of them is that Ephraim and Manasseh were born in Egypt in a highly secularized society.  The belief in one god was not commonly held, and it was very easy to lose beliefs and ascribe to the Egyptian theory of worship.  But Ephraim and Manasseh, despite living in such conditions, maintained their beliefs as passed down from Abraham to Isaac to Jacob to Joseph.  Thus the hope and desire that in the face of adversity or challenge, the sons of the Jewish people would not lose their faith, but would be as Ephraim and Manasseh.

But I like this interpretation better. 

The Bible is fraught with narratives of brothers who simply don’t get along.  Consider the relationship between Cain and Abel.  Or how about Isaac and Ishmael, or Jacob and Esau or even Joseph and his other brothers.

(Remember a while back we discussed how simple estate planning could have saved thousands of years of war?  http://robcohen13.com/2011/09/26/dov-youre-always-fighting-and-youre-always-in-a-place-where-you-might-get-killed/)

But Ephraim and Manasseh?  The rabbis tell us that these two brothers did not fight; there was no strife between them.  So to be as Ephraim and Manasseh is to maintain a relationship with your brother which is free from discord.

It’s funny actually.  I had never heard the story of Ephraim and Manasseh before or the derivation of the Shabbat blessing until this past Friday night.  In using the example of the warring brothers throughout Jewish history, our rabbi asked of the congregation if they knew the two brothers in Jewish history who did not fight.  Being the typical smart-aleck that I am, I murmured that it was the Cohens, namely my brother and I.  While amusing (perhaps only to myself), it certainly was disheartening, when I thought more about it, that strife amongst families is not unusual.  Just because people share the same blood and even the same upbringing, harmony is not guaranteed.

Can you see where I am going with this?  I have told you before, being an attorney can sometimes be a curse.  It is something about the training in law school, but attorneys think differently.  They issue spot, they are always assessing risk, and they are always taking simple and straight-forward concepts and making them difficult.  Which is why the discussion of the blessing of Ephraim and Manasseh struck a chord with me.  For if all of our sons and, let’s not be sexist, daughters were to be as Ephraim and Manasseh, then I would be out of a job.  Family strife, while discouraging and unfortunate, pays my bills…

But I would certainly trade it all away for harmony.  To me there is nothing more heart-breaking than a family in turmoil resulting from interpersonal relationships. 

I am constantly amazed and impressed by the accomplishments of professional athletes; the people on the field who, under seemingly limitless pressure, are able to perform.  The home run in Game 7 of the World Series, the touchdown pass with no time remaining on the clock, the Perfect 10 in the Olympics.  These people are mortal, they live and breathe just like any of us, but somehow they manage to perform when the spotlight is on them.

As an attorney, it is unlikely that I will ever find myself in a situation quite like any of those.  Sure, I will argue numerous cases, cross-examine hundreds of witnesses, and negotiate hundred-page agreements, but performing on the largest of stages likely will not happen for me.  But a guy can fantasize about that, right? 

For example, what would it have been like to represent high school science teacher John Scopes in the Scopes Monkey Trial, defend Leopold and Loeb, prosecute the Nazi War criminals at Nuremburg, or take the place of Atticus Finch and defend Tom Robinson for rape?  The tension palpable, the pressure like the weight of the world, the media scrutiny oppressive, the stakes life-altering. 

Which got me to thinking:  are there any cases that I would have wanted to take on?  If the client had walked into my office and asked me to represent them, would I have accepted the challenge?  We all would like to think that we could defend the honest man/woman, but personally, that isn’t me.  I wouldn’t take on that matter.  In fantasyland, sure, I would do it, but Dred Scott is not walking into my office and asking me to represent him in his case against his master.  So the criminal matters, the particularly nasty stuff, the Constitutional challenges… I likely wouldn’t take them on.  I didn’t say never, just likely that I wouldn’t.

Yet based on my current practice and recent experiences with particular cases, there is a case I would take, if the young lady were to walk into my office.  The case hasn’t been brought yet, but if it walked into my office, I would snatch it up and I believe it would receive quite a bit of media attention.

The young lady in question has a remarkable story, one of love and loss and despair.  When her mother died, it left just her and her father.  She was the apple of Daddy’s eye and the two of them were inseparable; until Daddy remarried a shrew of a woman who had two daughters of her own.  The new blended family was anything but idyllic, and it only got worse when Daddy died, leaving my new client an orphan.

You see, Daddy owned a nice property and had plenty of money, but his estate plan left a lot to be desired.  He left everything in trust for his daughter; however he made his second wife the trustee of the trust with full discretion over its affairs, thinking that his second wife would treat his own daughter the same as she treated her own.  Instead, though, she ran rampant with the trust’s assets, using the family home (more of a castle really) as if it was her own, doting on her two daughters with lavish gifts, clothes, and music lessons (even though they had no musical abilities at all), all the while making my client’s life a living hell.  Not only did she not receive the benefits of the trust, she was forced to earn her keep around the house.  Instead of growing up with the benefits of financial security afforded by the trust, she became a glorified housekeeper, responsible for the house’s maintenance and attending to the needs of the stepmother and her two daughters.  Cooking, cleaning, and scrubbing the floors were part of her everyday life.  Wearing fancy clothes and attending extravagant parties were not part of her existence.  Oh, what her life would have been had the stepmother complied with her duties as trustee!  But no one was there to look over her shoulder and ensure that she was not breaching any of her fiduciary duties.

Until I come along, that is.  This case would be perfect for me.  It has everything; an estate plan that isn’t being performed, a trustee who is running rampant and shirking her responsibilities, two step-sisters who are receiving assets of the trust improperly…

Imagine the possibilities!  A petition requesting that the court order the stepmother to provide an accounting of the trust’s activities; that she be removed as trustee and someone else appointed; that she be personally surcharged for her constant breaches of the fiduciary duty she owed to my client; that the step-sisters be ordered to return all of the assets they improperly received from the trust; and maybe even request that the court terminate the trust and distribute all of the assets to my client immediately.  We might even have to bring a civil action to remove the stepmother and her daughters from the home.

Ahh, if only she had walked into my door.  While hindsight is 20/20, perhaps the client did better by not walking into my office.  Her fairy godmother sure did a better, and more expedient, job of rescuing her from her troubles… who can compete with that whole glass-slipper thing anyways?

But not everyone has a fairy godmother.  And these types of matters are happening constantly.  They just aren’t receiving the same media attention…