Hobby Lobby, or Can I have my cake and eat it too?

This past week two cases were argued before the U.S. Supreme Court arising out of the mandate under the Affordable Care Act that requires that employer-provided health insurance cover contraception. The more widely-known and reported case is that involving Hobby Lobby, the chain of arts-and-crafts stores. It seems that Hobby Lobby is owned by the Green family, who are apparently ardent evangelical Christians. They claim to object to several forms of contraception which they contend are abortifacients (i.e. that the form of contraception is not a prophylactic but actually induces an abortion). For the moment, let's put aside the rather dubious science behind such claims and take it at it's face value. Hobby Lobby and its supporters have characterized their position as one about "religious liberty" and that requiring them to provide health insurance which covers, in their view, abortion, violates their religious beliefs. Ah, but whose beliefs are we talking about? Therein lies the rub, and why this case is not really about religious liberty but rather about wanting the tyrannical State to protect you when it suits you and let you do whatever you damn well please when it doesn't.

Hobby Lobby is a corporation. What is a corporation? Well, a corporation is a legal entity recognized by law. Why do people form corporations? Well, a really big reason is to insulate themselves from individual liability for the debts of the corporation. If you are a vendor of Hobby Lobby and they don't pay you for your materials, you can sue Hobby Lobby but you can't sue the Green family. If your neighborhood Hobby Lobby leaves a mess on the floor and you slip and fall and break your leg, again, you can sue Hobby Lobby, but not the Green family. Now, there is a way you actually could sue the Green family in those instances, and that is if the Green family ran their corporation as an extension of themselves personally--the classic way that happens is by commingling corporate and individual funds. In that case, you might be permitted to "pierce the corporate veil" as lawyers and judges like to say, and get to the individuals. The underlying premise is that if the individuals have disregarded the corporate entity and simply carried on their business as if it were their individual affairs, then they should be individually liable. I'm making an assumption here, but my guess is that the Greens have run their corporation properly and that, if you slip and fall in a Hobby Lobby next week and try to sue the Greens individually, their lawyers would very, very quickly file a motion to dismiss that lawsuit, which motion would be very, very quickly granted. They might even file what is known as a Rule 11 motion for a frivolous action and have you and/or your lawyers sanctioned for even bringing such a lawsuit.

So, from a legal standpoint, when you are dealing with Hobby Lobby, you are dealing with the corporation, not the people who own it. But the Greens seem to want that State-created protection when they may be on the hook for debts and lawsuits, but also want the State to give them a pass on the contraceptive mandate because it offends their individual religious beliefs. But, but, the mandate does not apply to the Greens individually, it applies to Hobby Lobby. Hm, problematic. it would seem. No, not if you can disguise what you are trying to accomplish with nice buzzwords like "religious liberty". Let's be clear, the ACA does not require the Green family to pay for ANYTHING. It requires the corporation they own to do so. It's not a church, it's a corporation. It is a creature of the State. If they want to run the corporation according to "Christian values", bully for them. But that does not change the fact that Hobby Lobby is a corporation and not the alter ego of the Green family. This ain't about religion folks, as usual it's about money.

Darkness on the Edge of Town

I'm about to start a trial. As those folks who are friends of mine on Facebook know, I often play music by The Clash when I'm about to start, or am in, a trial.

There is a place you have to go when there is as much on the line as there is in a serious felony criminal trial. It can be a dark and lonely place. No matter the support from family, friends, or anyone else, you're out there on the ledge by yourself. A lot of times even your client is adversarial. No one in that courtroom wants you to win. So you adjust your mindset. For me, it entails channeling anger and arrogance--convincing myself that I am the best at what I do, that the prosecution is foolish to try and match me. Some trial lawyers I know have an almost Zen approach. They are able to achieve calm amidst the storm. That doesn't work for me.

But there's a price that comes with that mindset, especially for those close to me. I'm by nature arrogant and self-assured--have been since I was a kid. I'm not good at being warm and understanding. That's hard enough for the people who care about me during the lulls. When I'm in trial, those characteristics take over almost entirely, and I am no fun to be around. At some level, I know that. But I am powerless to stop it. No, that's bullshit. Of course I could stop it. I choose not to, and simply hope that those I love will understand. It's a lot to ask. And there's an internal toll to be paid too. You go into the dark too often, sometimes it's hard to come back. As I get older, it gets tougher to recover. It's why I've taken to working out harder in the last year or two than I have since my early twenties. There's a saying among those of us who do murder and mayhem cases that every lawyer has a number stamped in their brain. That number is the number of trials you have in you. No one knows in advance what that number is. But when you reach that number, it's time to get out. The trick is recognizing when that number hits.

But enough of the "woe is me". As I've said before, I do this because, at heart, I love it. I chose it, and I wouldn't do anything else. Time to strap on the guns and see what happens. As the Boss says:

"Tonight I'll be on that hill 'cause I can't stop
I'll be on that hill with everything I got
Lives on the line where dreams are found and lost
I'll be there on time and I'll pay the cost
For wanting things that can only be found
In the darkness on the edge of town"

Can't Anybody Here Play This Game?

First, the title (for you non-baseball fans). The expansion 1962 New York Mets were perhaps the worst baseball team of all time. They were managed by baseball legend Casey Stengel. Stengel, upon witnessing his team's sheer ineptitude, was said to have exclaimed "Can't anybody here play this game?". As it turns out, Casey never said it. When Jimmy Breslin was writing about the team, he made up the "quote" and attributed it to the manager. But the cry of "Can't anybody here play this game?" still sounds when witnessing a team playing poorly.

I chose this title because this post is about how badly people argue. Now, big surprise to those who know me, I LOVE to argue. Hell, I like it so much I do it for a living. But the basics of arguing (or debate, if there's too much hostile connotation to the word "argue" for you--more on that in a minute) are not that complicated: take a position, support it with evidence, listen to the counter-argument, respond. Lather, rinse, repeat. The problem is that the vast majority of people skip the middle parts: they lack evidence and they don't listen to the counter. When you note someone's lack of evidence, you often get the response "well, I'm entitled to my opinion". Yes indeed, you are. But if it lacks evidence or is poorly thought-out, others are entitled (I would contend required) to point out that such opinion is without merit. That is where listening to the response, considering it ("have I failed to support my position with evidence", "is my evidence from an authoritative and reliable source") and responding comes in. Simply expressing your opinion again, without dealing with the points raised by the other side, dissolves quickly and casts no light.

How do you know what you think and what you believe? Is it what you were taught as a child? Is it what you were taught in school? Whatever it is, if you don't test it, think ABOUT what you think and WHY you think it, I would suggest that you are not your own person. Public debate and discourse has devolved, for the  most part, into people shouting what I refer to as "articles of faith" at each other. These are positions that people hold, but when pressed for evidence as to why those positions are correct, i.e. when pushed to argue/debate those positions, are incapable of doing so. If you never change your opinion on something, if you are incapable of conceding that those whose position is different than yours sometimes have a point, if you are sure you have the answers, I would suggest you 're doing it wrong. This is not simply a matter of education. There are people out there who went to very fine schools who are absolutely terrible at this process. It is more a mindset of not being satisfied and being open to the process. I'm not always able to accomplish it. But I try.

About the title---and other stuff

People have asked me in the past about blogging (no, really, they have!). I've decided to give it a go, and if it only serves to give me a reason to think some things through for myself and no one else reads it, I believe it will still be worth it.

First things first, I would assume that if you are reading this you know who I am, but on the off-chance you've accidentally stumbled upon this, and the even more off-chance you care, I am a criminal defense lawyer based in Charlotte, NC. I specialize in serious felony and homicide defense. Yes, that means I work around murder and mayhem and those that are involved in it. I have handled numerous capital cases (i.e. where the State was looking to kill my client) and, thankfully, have never had a client sentenced to death. I work for the most part with indigent clients (i.e poor people) and am paid in a large number of the most serious cases by the State of North Carolina.

The title of this blog comes from a question that all criminal defense lawyers hear at some point in their lives, and to which I was subjected (along with several insults and ill-wishes upon me and my family) today on, of all places, Facebook. An individual convicted of a homicide in PA involving a toddler is apparently up for parole, and a person who was outraged by this characterized the individual's defense attorney as a "slimeball". I foolishly inquired as to why the attorney was a "slimeball", and was quickly informed that it was because he had done his job and represented his client as best he could. I then, even more foolishly, responded that this was also my line of work, and if that made me a "slimeball", oh well. It was then that a nice person whom I've never met asked me the question of my sleeping habits, suggested that perhaps bad things should happen to members of my family (boy, would that teach me) and informed me that I made them ill. They also informed me that my "fat wallet" was not worth being a "slimeball". The "fat wallet" comment was especially hilarious since, as I said, I represent mostly indigent clients and get paid an hourly rate lower than any plumber or other repairman who comes to your house.

So, how do I sleep at night? Usually just fine, thanks. I really and truly believe what we were taught about the Bill of Rights and stuff...you know, that everyone is presumed innocent, that no one should go to jail unless the State can prove their guilt beyond a reasonable doubt, that everyone (yeah, everyone) is entitled to a lawyer (preferably one who knows what the hell they're doing) and a vigorous defense, and, ESPECIALLY, that if you make sure that the system gives the worst of the worst a fair trial then the system as a whole works better for everyone. I've met a lot of people along the way. Some who have done really terrible things. But I'll tell you a secret. I can count on one hand the number of folks I've represented who were just flat-out bad people. Most got to where they were through combinations of factors. Part of my job is to try and get judges and juries to see that. Sometimes I can. Often I can't.

That's how this little venture got its name. I'll post about stuff that comes up in my cases and other legal matters going on around the country. As a forewarning, I can get a little blunt and am not afraid to curse if the spirit moves me. If you want to comment, have at it....for those that know me, you already know I like to argue.