How to make all lawyers look bad

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One could not miss the flurry of litigation that followed the latest U.S. elections, which appear to be continuing weeks after the result seemed certain.

One could also be amazed at the lengths some of the Trump campaign lawyers have taken in order to argue their case. Certainly, lawyers must fiercely advocate for their clients, but this advocacy must have limits. A lawyer should not contort facts, law or themselves in an unbridled zeal to get a favorable decision.

Philadelphia attorney Jerome M. Marcus contorted himself in arguing that Republican observers did not have an opportunity to oversee the vote counting.

Judge Diamond: “Are your observers in the counting room?”

Marcus: “There’s a non-zero number of people in the room.”

Non-zero. I stopped and thought about that for a while. A helpful definition from Sciencing.com states that any number, whether positive or negative, that does not equate to zero essentially represents a nonzero number. Therefore, in theory, the Trump campaign could have had a negative number of scrutineers. Theorizing further, negative people — in space, not attitude — take up less room. So they could have had even more negative scrutineers.

However, the lawyer simply avoided answering the court’s question. Judge Diamond pressed the point. 

Diamond: “I am asking you as a member of the bar of this court: are people representing the plaintiffs in the [counting] room?”

Marcus: “Yes.”

(Having the court remind you that you are member of the bar is equivalent to your mother calling you by your first, middle and last name. You are in trouble.)

Diamond: “I’m sorry, then what’s your problem?” 

Trump’s team conceded the point and the two sides agreed to increase the level of access[ER1]  for scrutineers. The Trump lawyer lost the case and most of his credibility by this time. The attempts to rephrase the factual situation reminded me of the doublethink reference in George Orwell’s novel 1984: “Doublethink means the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”

The Sticky Note hearsay evidence case provides another great example of advocacy limits. In a further attempt to prove fraud, the Trump campaign submitted an affidavit that seemed to contain questionable physical facts. I could feel the embarrassment of campaign lawyer Thor Hearne attempting to extend the law of hearsay to Michigan Court of Claims Judge Cynthia Stephens.

Judge Stephens: So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct?

Hearne: The affiant had direct firsthand knowledge of the communication with the elections inspector and the document they provided them.

Stephens: Okay, which is generally known as hearsay, right?

Hearne: I would not think that’s hearsay, Your Honor. That’s firsthand personal knowledge by the affiant of what she physically observed. And we included an exhibit which is a physical copy of the note that she was provided.

After a bit of discussion, Judge Stephens reviewed the note and seemed to channel Judge Diamond’s exasperation:

Stephens: I’m still trying to understand why this isn’t hearsay.

Hearne: Well, it’s, it, I –

Stephens: I absolutely understand what the affiant says she heard someone say to her. But the truth of the matter … that you’re going for was that there was an illegal act occurring. Because other than that I don’t know what its relevancy is.

Hearne: Right. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Connarn, and she has made that statement based on her own firsthand physical evidence and knowledge —

Stephens: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.

Hearne: Well, it’s a firsthand statement of her physical –

Stephens: It’s an out-of-court statement offered where the truth of the matter is asserted, right?

Just to confirm, the courts south of 49 do not occupy a separate legal reality. The U.S. case Subramanian v. Public Prosecutor (1956) found that hearsay evidence is any statement, either written or oral, which was made out of court, but is presented in court to prove the truth of that statement. Judge Stephens’ ruling upheld a situation that should have been obvious to a second year law student. Or anyone that streams movies dramatizing trials.

In a later written decision, Stephens went further and dismissed the evidence as “inadmissible as hearsay within hearsay.”

The Code of Professional Conduct of the Law Society of Manitoba suggests limits to such advocacy: “When acting as an advocate, a lawyer must not: knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit … ”

The court managed another admonishment with the “Come on, now,” which is reminiscent of Barack Obama’s admonition of Donald Trump: “Come on, man.”  These expressions are directed at people who contort the reality of the situation.

This type of contortion becomes a concern if the court record somehow becomes mudded with “alternate facts.” The novel 1984 provides another warning: “And if all others accepted the lie which the Party imposed — if all records told the same tale — then the lie passed into history and became truth.”

Manitoba’s code of conduct provides guidance on how lawyers should be balancing these two solitudes of client and society: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect.”

# trump #election

The Bay store is dead. Long live The Bay.

A view of the HBC department store in Winnipeg (1931) by Bridgens
Source: Hudson’s Bay Company Archives, 1987/363-W-315/102.

I remember Winnipeg’s Hudson’s Bay Company store. The way the store used to be back in the 1960’s which formed part of my own upbringing.

By 1910 Winnipeg’s new economy moved to Portage Ave and The Bay wanted to be where the future commerce was going to be.

Montreal architects Barott and Blackader designed the building as a fine example of Beaux-Art styling. The construction used materials almost entirely from Manitoba. This called for 125,000 cubic feet of Tyndall limestone from Gypsumville. Workers removed 150,000 tons of earth with 120 teams of horses, twenty trucks and two steam shovels. They pounded in 151 piles to the bedrock. This building became part of the earth, part of Manitoba and part of Winnipeg.

This massive 675,000 square foot department store occupied a prime piece of real estate. The store faced Portage Avenue along with the newly constructed Manitoba legislature just down the street.

The building used three boilers to provide hot water and steam for the turbines which generated its own electricity. It became the model of self-sufficiency. The building was the largest concrete enforced structure in Canada at the time. Looking at the Tyndall stone exterior you can see fossilized shells. A touch of irony as the store would eventually become a fossil itself.

The store opened on November 18^th, 1926 to thousands of customers with thousands of staff. With an arcade, restaurants, beauty salons, furniture, clothing and of course furs, The Bay could satisfy almost any consumer desire.

Several decades later, The Bay became part of my childhood. Our father returned from a stint with the RAF and entered the Bay management program. Our mother worked in the Bay’s personnel department. They met, fell in love, and produced two other life-time Bay customers.

The Bay sent our dad and family on a whirlwind tour of the country. I was born in Toronto, but I eventually lived in eight cities across Canada. We ended up in Winnipeg. Three times. Most people leave Winnipeg not to return, but we managed to come back on each occasion.

When we lived in Winnipeg the second time, our father became the manager of women’s fashions. He had a great office and a big leather chair. On Saturdays, I would hop the bus, and spend the day in the store. It transformed to become my playground. Being 11 years old, I was entrusted with a bus ticket to get downtown, and another to get back home in the off chance I couldn’t get home with my dad.

During this time I would run up to the Paddlewheel restaurant. Burger and fries please! And a chocolate milk! The restaurant of course resembled a traditional ship with a moving, slightly dangerous paddlewheel churning away. The ceiling painted blue for the sky and white for the clouds. You can imagine an 11 year old going on imaginary trips for all of lunchtime. The restaurant became a precursor of things to come as it closed on January 24^th 2013. For its last meal, the restaurant ran out of food. One of the few times when demand out ate supply.

The rest of the staff always knew who I was and always smiled at me. I hope it was because I was a pleasant quiet child. Not the delinquent son of a senior manager.

Winters brought in the most magical time. Christmas. The Bay showed over exuberance in the way of decorations even though they must have eaten away at the profits. The store windows were sights to behold. The best ones used animatronics for little cartoon like animals and the celebrations they must have had. Inside the store amazed young and old. Of course Santa appeared in a makeshift workshop at the North Pole. Exhilarating and terrifying all at the same time.

Even if I can’t remember the exact decorations or what I asked Santa to bring me anymore, the sense of wonder I felt still remains. I over romanticize the past, but rarely do senior adults feel that sense of wonder. When you encounter such a person, sit and listen. You can still feel the passion within.

Eventually we left for Montreal, but returned one last time to Winnipeg. Eventually dad retired. We didn’t seem to have a driving reason to go downtown any longer. The other malls were opening up. I even worked in one of the suburban Bays for a period of time in sporting goods.

The new economics slowly drained away the life-force from what used to be the flagship store for the Bay.

Over the past few years, The Bay closed off the top floors of the store. Now The Bay only occupies the main and second floor. The store used to service thousands of customers in a day. But now the aisles seem mostly empty. Customers look to their on-line gods now.

The store intends to shut its doors in February 2021.

The City of Winnipeg granted the store a historical designation in January 2019. So the exterior must remain, along with some of the outside canopy and the interior curved elevator lobby. Mostly everything else will have to be eviscerated. It seems like a favorite eccentric uncle with dementia. The exterior is still there, but everything that gave it character has been removed.

Developers may be thinking of installing atriums which would bring light to the interior of a structure well past its prime and well past its place in this new economy. Creative destruction. The tearing down of the old to allow the reallocation of freed up assets. Economists have a way with words.

Appraisers place a zero price on the building. What with the taxes and improvement costs, this is likely a generous price. But the value of the Flagship Hudson’s Bay Company building goes beyond the price. And with 151 piles, the Bay remains part of the province and the city.

I’ll sadly watch the old Bay transform, but I look forward to its rebirth. And remember.

Leading your Life: Chapter 3

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What Opportunity appears to lie for this approach of using business skills for your life?

There are numerous books on getting an MBA in various business areas already. There are also several books on developing a balance between work and life. However, there are no books that apply business skills to organize one’s own life. Developing a personal vision and mission statement are sometimes mentioned, but they are not mentioned in the way of an entire life strategic plan. A good life simply does not happen. You have to figure out what that means to yourself and how you are going to achieve it.

The primary market would be those deeply involved in business seeking additional self-help books. The title would be sufficient to bring to mind that those individuals should be giving further thought on organizing their own lives. In the traditional self-help section, there would be looking for a bit more of a systematic way to approach life. They may not have ever read a business book before, but if it were in the traditional self-help section for life skills, they would have a greater opportunity to learn about what a strategic plan was all about if the planning was about something that interested them.

A typical user would be the middle-aged business man and woman. Following the largest demographic hump, these people have been working in business all their lives and some have made tremendous sacrifices. They are now looking to work on their own lives now that they have succeeded in business. Some of them may have been great economic successes while they left the rest of their lives enter a form of emotional and physical bankruptcy.

The book would help those that have the greatest of skills but are still lost in trying to apply them to their own lives. These people may be inclined to read the occasional self-help book, but they may be lost in trying to determine what direction to go in. Having a book that aligns with their own personal interests and applies the relevant skills they already possess in order to maximize the returns to their own lives would be a logical extension.

Leading your life-Chapter 2

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Can a business model help your own life?

The question then becomes what is the connection between how a corporation runs and how an individual can run their own life. Corporations have always used objectives such as profits, return on investment and dividends paid amongst other criteria.  Can this somehow predicate the happiness of the Corporation or do we have a similar kind of dichotomy between man and business?

Does the satisfaction of these corporate criteria also refer only to contentment?  The satisfaction of these various corporate objectives does lead to the payment of dividends, wages and bonuses, which can lead to the contentment of individuals.  If indeed the Corporation’s soul is made up of the individuals that run the organization, then we could have an argument that a similar dichotomy exists between contentment and true happiness within a corporation.  This would suggest that a corporation having the values of the individual would also seek to maximize its happiness by leading a highly moral life.

If a corporation could somehow be happy in the satisfaction of its mission and vision statement, then it stands to reason that a similar achievement of a personal mission and vision statement would lead to the happiness of an individual. However, there’s a further questions of whether or not happiness of the individual is somehow separate apart from the individuation or actualization of the individual. 

It would seem that an individual would want to become fully actualized through the accumulation of skills and wisdom and perhaps wealth.  If it individual wishes to become actualized through work, this is somehow consistent with leading a highly moral life.  One should be able to lead a highly moral life and still become actualized.  Actualization may have to do more with the contentment of the individual and the resolution of various desires of that particular individual

Rusty Rudy Giulani

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Most lawyers know not to ask questions in court in which they don’t know the answer.

The next most important one is to not use a word in which you don’t know the meaning.

Rudy tripped himself up over the meaning of “opacity.”

Giuliani: “In the plaintiffs’ counties, they were denied the opportunity to have an unobstructed observation and ensure opacity. “I’m not quite sure I know what opacity means. It probably means you can see, right?”

Judge Brann: “It means you can’t.”

Giuliani: “Big words, your honor,” Giuliani said.

Once you start tripping over the details, the major premise you intended starts to collapse.

Leading your life.

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Examine an analogy between the standard corporation and the nature of men and women. The soulless corporation depends upon the values of those that run the organization to determine its own values. One would think that the values of individuals align with the Corporation’s. Perhaps the true happiness of an individual may be analogous to the happiness of the organization.

The happiness of an individual can be divided into two main criteria. The first requires finding happiness in the satisfaction of the various desires that individuals have. An individual could be happy either based on the satisfaction of these desires or the elimination of these desires. However happiness could be far more complicated. The resolution of various desires would be more clearly defined as contentment. Happiness of the individual would then be dependent upon the moral values of that individual and leading a highly moral life. This may be a bit too simplistic since leading a highly moral life is insufficient. Having good fortune is also relatively important. Sickness and poverty are severe overlying factors that can prevent or mitigate against leading a moral life and true happiness.

So we need to lay out some specific goals to keep centered.

#leadership#motivation#business

Can you lead your life like you lead your business?

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Trying to figure out life’s purpose in the midst of a pandemic can be disheartening.
One wonders if a business approach might help show you how to systematically find this out on your own.

Why a Business Model?

One might think that using a business model to one’s own life simply allows the problem to take control over a larger portion of your existence. But what if there were a way to try and apply what you have already learned to living a better life? Most people are involved in business in some fashion or another in order to earn income. Would applying those business skills somehow be of help to strategically lay out your own life to achieve your own personal vision and mission statement? Doing what you know and do best applies to most things. Certainly this would also apply to life, and using those honed business skills would make your life one of the top organizations for years to come.

I am going to focus on this for a while and let you know what we can find.

#business#leadership#leadership#inspiration

Life, Liberty and the Pursuit of Everything.

Gary Goodwin takes a humorous look at how we all struggle to add meaning to our existence.

When starting CPP, take a good critical look.

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Various newspapers and advisors talk about the benefits of waiting to take the CPP. Some people start at 60, others start at the classic 65, while a slim minority wait till 70.

And the benefits can seem alluring. If you are eligible for the maximum benefit, then at age 65 this could be $14,1010. But if you wait till 70, you get a massive 42% boost in the payments. If you think about it, that is a great return over five years.

But if you use one of the standard CPP calculators, to total up and compare the difference between age 65 and 70 over your lifespan, the difference is quite small. You are not living five years longer as you might have hoped. You are receiving five years less in the way of payments.

And of course, pensioners that were not prepared to delay their gratification and started at 65, have the benefit of spending or investing the funds. The others waiting till 70 have a bit of an opportunity cost of not having the money in hand. Money now is always better than the same amount years from now. Which accounts for the increase if you wait till 70.

Ultimately, do the critical analysis. Is foregoing a marshmallow now worth two later?

#leadership#business#retirement#investment

The Congress of Oz

A Satire

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Dorothy Democrat awoke. “What is this strange place I have suddenly landed? I don’t think we are in the state of Kindness anymore.”

There was a voice beside her. “You have landed in the congress of Oz. A strange and wondrous place where the diminutive democrats have become the greatest number in the land.”

“And who are you?”

“I am Nancy, the newly appointed good speaker of the house of congress.”

“But how did I get here?” asked Dorothy.

“There was a great and powerful wave that you rode. You looked so majestic coming here. Mind you, the wave really petered out by the time you arrived, so it was more of ripple by then. But still majestic.”

Dorothy looked around. She saw the small withered and diminishing feet of a small man running away.

“Who was that?”

“That was the wicked republican speaker of Wisconsin. It looked like your wave was going to come crashing down on him, so he decided to bug out before you got here.”

“You know so much.” A happy strawman came up to her.

“Who are you?” asked Dorothy.

“I am just a Scarecrow. I don’t have much in the way of brains.”

“That’s so sad. I will put you in charge of the democrats’ campaign.”

Another, man came up to her. “We are so glad you are here. I am so inflexible. My body is made of tin. I can’t change and just keeping doing the same thing again and again.”

“Good,” said Dorothy. We shall put you in charge of strategic planning for the campaign.”

A loud gruff man came up to her. “Listen here. I can take you on. Just because you are new here, you can’t tell us what to do.”

Dorothy figuratively smacked the imprudent man’s nose. He recoiled. “I’m sorry. I didn’t mean to be rude. I’ll be polite.”

“Good. You can be in charge of the tougher media campaign.

“Well, I didn’t ask to come here,” said Dorothy. Well, maybe I did. But we will have to work together. Who is in charge here? Who can give us directions?”

“Just follow the yellow bricks of gold road,” said the small voice inside her head. “There you will find the greatest wizard of all who can guide you further.”

Dorothy and her companions followed the road to the mighty Soaring Soros Skyscraper.

“We must see the Wizard,” said Dorothy. “Only he can guide us further.”

The Wizard’s servants admitted her rag tag group.

There was a voice behind the green curtain of money. She could not tell what he was, but he sounded authoritative and he had this green curtain of money. “What do you want?” said the voice

“We want to go back to the state Kindness.”

“I can grant your greatest wish,” said the voice.

“But, you must bring the hair of the wicked warlock of the west wing of the White House.”

“But, to do that, we would have to impeach the warlock! How would that be possible?”

“You will have to find a way.”

They left, but the warlock learned of their plans. And he sent his awful army of mindless flying senate monkeys to impede her.

The senate monkeys had their grand leader. The flying monkey king. MiMc had cast out many a poor immigrant.

The flying monkey king grabbed Dorothy and took her to the warlock.

The wicked warlock of the west wing of the White House descended from his Air Force One rotary broom flying contraption. He had mastered the science of flight, but not the cause of global warming. His hair, oblivious to the winds, stood in a death embrace with his skull.

“You ain’t got much time,” he bellowed to everyone and no one. “I know the best spells. And everything wrong with the country is your fault. Everything good about this country is only because of me.”

“But I just got here.”

“That just don’t matter. Give me back what you stole using fake news and fraudulent voters. Give me back the ruby hall of congress.”

“But I can’t. The people gave congress to the democrats.”

Her friends looked at the locked down compound guarded by the senate monkeys.

“How can we get her back?”

“We can draw him out. Begin the congressional investigation hearings. He will have no choice.

In the blink of $100 million dollars, Dorothy’s friends produced the report detailing emoluments and severe tax avoidance. Not strictly illegal, but what can you get for $100 million these days.

They got the report to Dorothy, who was locked away in the White House in a series of hopeless meetings in an attempt to create by-partisan arrangements and a way to get out of this gridlock.

The warlock angrily approached her.

“I am full of anger. Time’s up. Give me back congress. Or you will greatly suffer in many suffering greatly ways. And your little democrat states too.”

Dorothy grabbed the report and threw it at him. The report grazed the warlock’s hair, and they all ended up in federal court. Including the hair.

The court declared a breach of many federal laws that the warlock had not had a chance to amend in his favor.

“Oh no,” cried the warlock. “I am melting from memory! I am melting.”

After a moment, there appeared to be only a stain on the country’s history. Soon to be mopped up.

Dorothy grabbed the impeachment proceedings and made her way back to the Wizard and Nancy.

“The wicked warlock of the west wing of the White House is no more!”

The Wizard and Nancy were pleased and said that Dorothy could go back and take over the White House whenever she wanted.

Dorothy cried, “There’s no place like the White House. There’s no place like the White House. There’s no place like the White House.”