Drunk People Get Coverage Too

One of the great things about the Volokh Conspiracy’s move to Reason is their feature of Short Circuit, a weekly roundup of notable federal court decisions. Today’s topic of interest is affectionately titled “People Do Dumb Shit When Drunk.”

A twenty two year old man and his friends got loaded and decided to play a game of “chicken” in a Michigan field. The end result saw our booze-soaked subject in the hospital with six figures in medical bills.

This is normally where health insurance would kick in and at least defray some of the cost. With nearly two grand in bills, you’d think Beau Heimer at least met his deductible. Unfortunately, his insurer, Companion Life, told Heimer to pound sand because his injuries were the result of “illegal use of alcohol,” a situation not covered in his plan.

Heimer exhausted all administrative remedies before suing Companion Life in Federal Court. This would not go well for Companion Life.

Courts don’t give parties drafting contracts much leeway in lawsuits. The general rule is to look at the plain meaning of the words in question to see if they give any guidance. If further clarification is needed, courts construe contract language against the drafter.

As you can imagine, the Sixth Circuit roasted Companion Life. “Illegal use of alcohol” did not mean what Companion Life wanted it to mean.

In everyday English, an “illegal use of alcohol” thus means an illegal act of consuming alcohol—such as drinking while under 21, on public streets, or in an unlicensed restaurant…Read this way, Heimer’s conduct was not an “illegal use of alcohol”: Heimer was over the legal age to drink, and Companion Life has not pointed to any law that prohibited Heimer from consuming alcohol.
Heimer did something illegal, but it wasn’t drinking. The court couldn’t find a definition of “illegal use of alcohol” that fit “let’s get drunk and play chicken.” Absent language specifically excluding coverage for injuries sustained while under the influence, Companion Life had to pay Heimer’s bills.

The worst one can say about our reading is that it does not give effect to the insurance company’s understandable desire not to pay for injuries sustained during a drunken ride on a motorbike. But if the insurance company wanted to exclude this type of injury, it should have used specific language to that effect, as many other insurance companies have done. (emphasis mine)

In other words, if you want to exclude bad behavior while drunk from your insurance plan, say so in plain, specific language.

Companion Life’s last stand failed when the Sixth Circuit construed the language of Heimer’s plan against the insurer. No ambiguities in the plan’s language meant it was time to pony up for Heimer’s bills.

The dissenting judge even admitted Companion Life’s drafting was sloppy and needed work. While there was some ability to read the plan in favor of Companion Life, the language in Heimer’s plan didn’t allow for Companion to exclude coverage.

Companion Life surely did not intend its policy to cover injuries arising from drunken participation in a reckless game of chicken. Reading “illegal use of alcohol” so narrowly leaves one seeing double. But ultimately, in this case, the insurer must bear the consequences of its sloppy drafting.

Bad writing and deference to Heimer’s policy meant Companion Life ran on the wrong side of the law. Perhaps in the future they’ll figure out a way to exclude people doing dumb shit when drunk. For now, the Sixth Circuit gives us solid notice that “context matters,” especially when trying to skirt paying for medical bills.

The Few Standing For Justice Against The Outrage Mob

New York Senator Kirsten Gillibrand loved the support for recalling Judge Aaron Persky, the Voldemort of Social Justice who spared Brock Allen Turner the “severe impact” of prison.

This is incredible: In California, the activists behind @RecallPersky gathered 100,000 signatures to recall the judge who sentenced Brock Turner to just six months in jail after he was convicted of sexually assaulting an unconscious woman outside a frat party.

Shon Hopwood called bullshit on Gillibrand’s virtue signaling and endorsement of the “Recall Persky” mob.

Yes, pitchfork justice for judges who impose one sentence shorter than the small segment of the public thinks. The @RecallPersky effort will only lead to more punitiveness, which will disproportionately fall on minorities and the poor. Bravo!

It wasn’t just Shon ready to stand against the tide of those calling for Judge Persky’s head. Ninety one law professors did something few in academia are willing to do: take a principled stand and argue for the law.

We the undersigned are part of a broad diversity of law professors from California universities…[writing] in strong opposition to the campaign to recall Judge Aaron Persky of the Santa Clara County Superior Court…[This] recall campaign…threatens the fundamental principles of judicial independence and fairness that we all embed in the education of our students.

“Wait,” you may ask, “the recall mechanism is part of the law. It’s something California has on the books. Why is this such a threat to judicial independence and fairness?” Settle in for some “lawsplaining.

The mechanism of recall was designed for and must be limited to cases where judges are corrupt or incompetent or exhibit bias that leads to systematic injustice in their courtrooms. None of these criteria applies to Judge Persky. We appreciate that some people (indeed including some of the signers of this letter) might have chosen a different result, but the core values of judicial independence and integrity require the judge to make a decision based on the record (including, in this case, the recommendation of a skilled professional, a probation officer) —not on public outcry about a controversial case. (emphasis mine)

The ninety-one signatories agree on a key principle: mob opinion has no place on judicial independence and integrity. While openly admitting they might have ruled differently, each signer of the statement against Judge Persky’s recall stands firm in their opinion a judge must be allowed to make the rulings, no matter how unpopular. At the end of the day, it’s the person in the black robe who decides a defendant’s fate, social media be damned.

If close to a hundred academics can’t persuade those calling for Judge Persky’s head, perhaps the Santa Clara County Bar Association’s view holds stronger weight. They condemned the efforts to recall Judge Persky back in June of 2016.

 Judges have a duty to apply the law to the facts and evidence before them, regardless of public opinion or political pressure.  In that role, judges provide an important check against other political forces.  If judges had to fear direct, personal repercussions as a result of their decisions in individual cases, the rule of law would suffer. 

Those still calling for Persky’s neck might be keen to find out California’s Commission on Judicial Performance, the body tasked with handling problematic judges, fielded thousands of complaints over Brock Turner’s sentence and still found Judge Persky clear of any wrongdoing.

It is not the role of the commission to discipline judges for judicial decisions unless bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty is established by clear and convincing evidence…The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline. (emphasis mine)

A triumvirate of those versed in the law examined the Brock Turner verdict, concluded it was proper, and that Judge Persky’s only offense was showing maybe a little more empathy than most would’ve preferred. Why take the time now to stare the mob led by Michelle Dauber in the eye and proclaim “enough?”

Because as much as Dauber wants to believe otherwise, the recall isn’t just about Brock Turner and will affect far more defendants than the Stanford Swimmer.

In particular, lawyers who represent indigent defendants in our system rightly view the recall as a danger to, not promotion of, progressive values. This is because, historically and empirically, recall actions push judges towards sharply ratcheting up sentences, especially against the poor and people of color, out of fear of media campaigns run by well-funded interest groups.

In other words, should the Recall Persky campaign succeed, other jurists will take notice and shaft the less privileged accused of crimes out of fear they’ll be next. Better to issue harsher sentences than find your name smeared across the internet.

This is a pivotal moment, when the few who stand for what the law should be stare the mob of social justice in the eye and refuse to blink. Though some may find a defense of Judge Persky unpalatable, they realize if judicial independence is compromised here it sets a dangerous precedent hard to overturn.

As Ken White would say, this fight is for “the ones who never saw much mercy to begin with.”

Free Speech: Go Vols!

A new year means new free speech protections on Tennessee college campuses. As of today, the “Campus Free Speech Protection Act” is law in the Volunteer State. That’s great news for any parent sending their kid to college.

This new law, signed last year by Governor Haslam, addresses many concerns those of us outside academia watched unfold over the last few years. Passing with overwhelming support, institutions of higher learning will send kids back to class with a new set of rules.

Here’s a look at a few of the goodies in SB 723:

*Schools must adopt policies consistent with the University Of Chicago’s Statement on Principles of Free Speech and Free Expression.

*All open, outdoor spaces of universities are to be considered “public forums” for free speech and expression.

*Goodbye and good riddance to “free speech zones.” Colleges may no longer designate an area in which students may freely express their views.

*No school gets to deny student groups activity fees because the school might disagree with the group’s viewpoint.

*Goodbye to the imposition of “security fees” for speakers invited to campus. The same goes to the tactic of “disinviting” a speaker a college may disagree with or find upsetting.

*Teachers are protected for speaking in class, unless the speech is “not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction.”

*With regards to the issue of “student-on-student harassment,” schools must adopt policies consistent with the decision in Davis v. Monroe County Board of Education. 

This is a massive win for free speech in the Volunteer State. It’s a step forward in reaffirming a bedrock principle of our country: the right to say, be, and do as you please. No longer will outrage culture or offense be considered when someone speaks on a Tennessee campus.

I’ve often joked when I see something pop up about an incident in Tennessee that “my people don’t always get it right.” This time my people didn’t just get it right, they knocked one out of the park. A strong commitment to free speech is important in higher education, and Tennessee just took a big set towards making sure students are educated instead of indoctrinated.

What is the Age of the American Asshole?

It’s 2018, and time for a new era. Gone is the time of the Voodoo Child. Now it’s time for the Age of the American Asshole.

The American Asshole is an easy to understand creature, but one who needs some explanation.

2017 was a year of divisiveness for the entire world. The American Left shed its veneer of propriety and revealed the true ugliness and hate it holds for modern society. “Intersectionality” became the new fashion trend, as people revealed the various ways “systemic oppression” made their arguments better than most. And people couldn’t stand to see someone think differently or even a simple counter argument.

I first started thinking about the Age of the American Asshole when I began reading some of Kurt Schlichter’s work. Normally I’m a pro people guy, but when I began exposing a few of my contrarian beliefs the Leftists in my social circles turned on me like rabid jackals.

So hate for the other side seemed like a natural consequence of the times.

Then Charlottesville happened, and I questioned whether hatred of the other side was a necessary requisite for the times. Was it better to show love for your fellow humans or was the culture war in full swing? Did I need to show compassion, or was there zero tolerance for intellectual dishonesty and groupthink?

Eventually the answer became clear. I would need to strike a balance between the two, and the evolution was the Age of the American Asshole.

I host a show on Southern Fried Radio called the Sit Down with Chris Seaton. Each week we talk about news stories, big ideas, and fun topics. There are many occasions when we have guests in studio to talk with us.

From this point forward, the rules going in will be simple. If you come to my yard, your best bet is to do so with an open mind, a willingness to listen to the other side, and present your arguments with the best intellectual honesty possible.

Inside the studio and outside in the real world, if you approach me in that fashion we will have a civil discussion. We may disagree, but that’s the nature of reasonable minds. Regardless, we will both come away from the discussion without the hatred that seeped through much of 2017.

Play identity politics, attempt for a bid at the Oppression Olympics, or start a discussion about how “privileged” I am and you’re going to see what a proud, unapologetic American Asshole looks like.

Happy 2018.



Statement of Principles for the AotAA

Miss me yet?

That’s right, folks, I’m not going anywhere. Despite my antics on Medium and the ability to post on Simple Justice, consider this the start of the Fourth Wave of Blawging. I’m going to go where no lawyer has gone before and make this a method of delivering new ideas to the masses.

Now people have accused me of all sorts of thought crimes. I’ve been labeled far right. Alt Right, and worse. So in the spirit of CRTV’s Gavin McInness, I’m going to list my ten point principles on why I see conservatism as the new counterculture. In this list you will find things you agree with and things you don’t care for.

I don’t give a fuck either way.

1. I AM  A FREE SPEECH ABSOLUTIST. The right to say, act, and believe as you wish is a cornerstone of American life, regardless of what the gender studies majors at Oberlin tell you.  If you censor those you “hate,” you censor free speech as a whole.

2. IDENTITY POLITICS FOR ALL, OR IDENTITY POLITICS FOR NONE. This comes from my favorite militant atheist, David Smalley of “Dogma Debates.” Get rid of your “patents of oppression” where you show how oppressed you are is an indicator of your argument. Present your damn point and let it stand.

3. VENERATE THE PATRIARCHY. You know what gets shafted most in society? Dads. The people who hold a family together. Feminists hold the “patriarchy” as evil when it’s shown families with dads are more successful and raise better kids. Let’s make dads more welcome in the public.

4. THE WEST IS BEST. No, I’m not subscribing to Proud Boys dogma. I’m simply asserting Western Civilization brought us the best advancements life had to offer. There’s a reason people want to come to America and never go back.

5. STOP APOLOGIZING FOR BEING A STRAIGHT WHITE GUY. This idea of cisheteronormative guilt is amazing and foreign to me. No one should be ashamed of who they are.

6. LIFE IS NOT ABOUT YOU. Get over yourself. Life isn’t about your struggles. You are a cog in a machine. Govern yourself accordingly.

7. REJECT HEDONISM: EMBRACE THE SUCK.  Our society is hedonistic by nature. We would rather have comfort and leisure than pain. If you experience pain, learn to love it. Like the Marines say, “embrace the suck.” Only after the pain will you know true freedom.

8. LEARN TO ADAPT. You will grow over time. You will change your views. This is expected. Don’t let an asshat troll you with an old twit saying you were different. Just admit you’re evolved and move on.

9. ACCEPT EVOLUTION AS PART OF GROWING UP. You are a new person if you’re an adult. You are responsible for making your views a reality and defending them. Show some spine.

10. FAMILY FIRST. You know what makes people successful? Having families and keeping them. No substitute will do. This is the big one.

So ten principles to live life on.  I call it “Conservatism is the new Counterculture.”  I hope you get something out of this. Otherwise the Age of the American Asshole is starting soon.

Orleans Parish DA: Jailing Rape Victims is Okay

Orleans Parish District Attorney Leon Cannizzaro either doesn’t understand the gravity of his recent statements or doesn’t care. He’s on the record saying jailing rape victims to ensure their testimony is okay.

Orleans District Attorney Leon Cannizzaro says in some rare cases, it’s necessary to put a victim or witness in jail to get a dangerous criminal or sex offender off the streets.

“If I have to put a victim of a crime in jail, for eight days, in order to…keep the rapist off of the street, for a period of years and to prevent him from raping or harming someone else, I’m going to do that,” Cannizzaro said.

These statements come on the heels of a judicial watchdog group called “Courtwatch NOLA” taking issue with the DA’s office using “material witness warrants” to compel victim testimony. These are arrest warrants for witnesses or victims that send someone the District Attorney feels vital to the case to jail. Do not pass go, do not collect $200. If your testimony is important, you’re headed to the pokey.

Why would a DA’s office jail someone vital to the case? Wouldn’t a more compassionate form of ensuring their return to court be just as effective, and maybe a better look for a region and an office that already has terrible PR in the eyes of the community? In Cannizzaro’s eyes, it’s all a small price to pay in the pursuit of justice.

The DA maintains it’s a small price in the pursuit of justice.

“Steps have been taken to arrest that person, to indict him, to bring him to court and [the witness says], ‘I don’t want to get involved,’ in my opinion that is wrong,” Cannizzaro said.

That small price to keep your witness means one more person goes into the jail, with their alleged rapist. One more person gets to do the squat and cough in front of a booking officer to ensure no contraband makes its way into the jail. If that person is lucky, they won’t get a cavity search violating them a second time, this time state sanctioned. They’ll get the same jail issued jumpsuit and crocs as their rapist.

That’s DA Cannizzaro’s idea of a “small price.” It’s more about keeping the really violent offender off the streets for a long time than making sure victims and witnesses aren’t treated with compassion. A little inconvenience for them now means the bad guys are off the streets, and a little inconvenience never hurt anyone, right?

“Is it more important for this witness to be inconvenienced for a very short period of time or is it better for the community to get the violent offender off the streets and keep him off the streets,” Cannizzaro added.

Of course, this is Orleans Parish, where there’s a bit of a problem determining just when those alleged violent offenders will actually get a day in court. That problem actually saw a guy charged with rape get released from jail before ever getting tried for the offense. Cannizzaro threw a fit over that too, but let’s not get past the point of this post.

Three hundred and forty eight miles from Orleans Parrish is Harris County, Texas. Last year, during a sexual assault case, “Jenny,” a victim suffering from bipolar disorder, broke down on the stand during testimony and said she couldn’t continue. District Attorney Devon Anderson wasn’t too thrilled with the idea of her rape victim not returning to court. So she sent “Jenny” to jail. Let Devon tell you all about it.

Unfortunately for Devon Anderson, she’s no longer Harris County’s District Attorney. When it came to choosing between “Jenny” or Devon, the public chose the former and voted Devon Anderson out of office. The current Harris County DA, Kim Ogg, conducted sweeping changes of the District Attorney’s office and even testified in favor of “Jenny’s Law,” a piece of legislation giving victims and witnesses their own attorney and a full hearing before a judge signs an attachment warrant.

Leon Cannizzaro didn’t look to the fate of Devon Anderson when making his current statements to the press. That could very well be the end of his prosecutorial career, given the public’s interest in seeing victims and witnesses treated with compassion instead of dealing with an inconvenience.

Those who do not remember the past are condemned to repeat it. And in Orleans Parish, Leon Cannizzaro’s failure to remember the past of Harris County may condemn his future as a District Attorney.

Time to bust out the popcorn. Happy Friday.


Snap Shot: The Aaron Hernandez Verdict

With apologies to my friend, mentor, and all around esteemed colleague Scott Greenfield for the last gaffe in snagging his “But For Video” gimmick. The “Snap Shot” will be my “Short Take” on an issue. 

Aaron Hernandez, a former Tight End for the New England Patriots, was recently found not guilty of a double murder by a jury of his peers. His detractors on social media were quick to point out that he’s already serving life plus cancer for another murder, and that he’s not coming back to the NFL. Gleefully celebrating in a healthy dose of righteous indignation, someone made the mistake of asking me what I thought of Hernandez’s win in court.

Here’s the answer. I’m happy Aaron Hernandez got the coveted NG.

Not because I think he’s going to get into the Patriots’ good graces again anytime soon. Having married into a Patriots fan family, I’ve got experience knowing how forgiving Pats fans are for indiscretions. I also don’t see Hernandez getting into the NFL’s good graces either. A return to football would be the comeback story of a lifetime for a guy like Aaron Hernandez.

I’m happy because the Hernandez verdict represents a rarity in our criminal justice system. The state threw everything they had at Aaron Hernandez and a jury of his peers said “sorry, we’re not buying it.” That’s a rarity in our society, one so quick to condemn and label someone a criminal.

“Innocent until proven guilty” is just an empty platitude in a society based on feelings. 

Here the state didn’t have enough evidence to prove beyond a reasonable doubt Aaron Hernandez was part of a double murder. The jury, usually ready to hang a defendant at first sight, said “no” in this case. That’s a win for Hernandez and his defense team, even if he still has life in prison now that the trial is finished.

People who don’t work in the system daily don’t understand the majority of what we do is deal with failure, shrug, and move on. Far too often the State or the Feds have enough before we go to trial to secure a prison stay for our clients. So when situations like Aaron Hernandez’s come along we all celebrate, because we know victories like this are rarer than a Super Bowl ring.

But For Video: Parents Doing Stupid Things Edition

An acquaintance posted this video on social media today, asking parents for comment. Go ahead and watch it, then answer the following question:

Do the parents deserve punishment for this video? 

It’s perfectly natural for your first, visceral reaction to condemn the parents and feel horribly for the kids. On first viewing it’s hard to make it past the youngest child openly bawling, professing his innocence.

But what to do about it? Do you call for government intervention? Is your first instinct to call for the Department of Children’s Services? Many people, well intentioned parents included, saw the video and demanded the family’s local DCS hotlines get flooded until something happened.

This reaction leads me two two fundamental assumptions about those who call for DCS intervention over a stupid video:

  1. If you’re calling for DCS intervention, you’re most likely not a parent.
  2. If you’re calling for DCS intervention, you’ve most likely never interacted with DCS.

If you’re serious about the Department, Child Protective Services, or the family’s local equivalent getting involved after viewing that video, this is what you’re asking for that family:

You’re asking for a bunch of social workers, most likely flanked by police, to tell the kids to put their clothes and a few comfort items in a trash bag while the parents loudly protest their removal and tell the kids they love them. You’re asking for the kids to ride in the back of a car to a foster home together, if they’re lucky. Most likely they’ll get split up into several foster homes. Worse yet, there’s a good potential for the children as a unit to head to a group home where they will be assaulted by staff, neglected, or mistreated in some fashion.

These kids will next see their parents after Mom and Dad appear in court, flanked by attorneys that are most likely court-appointed. They will have to relive their “prank” video as evidence presented by the State that probable cause exists for the children to remain outside their home. Mom and Dad will have to submit to and pay for drug testing. Most likely, they’ll both get urine tested and hair follicle tested.

Attorneys will call the children as witnesses. The kids will have to relive the entire experience again, and this time get cross-examined over any inconsistencies in their testimony. If the family is lucky, the juvenile judge or magistrate judge will find by clear and convincing evidence the parents didn’t neglect the children or commit child abuse with their prank video.

If the judge or magistrate finds otherwise, the parents will be placed on a “permanency plan” designed by well meaning social workers to put them back on the “right” path. Steps may include weekly drug testing, maintaining a stable source of legal income, and completion of an anger management course. All of which will be paid for by the parents.

It’s going to be really hard for the parents if either of them works with or around kids, too. There’s a good shot they’ll get “indicated” for potential child abuse and placed on a registry of people who were actually found guilty by a judge of committing child abuse long before they reach trial over this video. That means when either parent goes to work, they might be out of a job. Getting off a registry like that takes substantial time, energy, and luck. And money.
Back to the permanency plan. If the Department’s workers don’t find within a year the parents have “substantially complied” with the permanency plan, there’s a good chance the Department will file to have the parents’ rights terminated. This is critical mass. At this point the State throws everything at the parents to prove them completely unfit to parent, and will pressure them into signing “surrender” documents that allow the kids to find their biological parents once they become adults.

If a judge finds by clear and convincing evidence the parents’ rights should be terminated, the family is severed forever. The kids will then be put up for adoption.

Now that you’ve read the entire hypothetical of what happens when you involve DCS, CPS, or any similar government agency, go back and reevaluate your answer to the original question.

Do the parents deserve punishment for this video? 

Not comfortable answering that? Let me rephrase the question.

Does this family deserve to be forever torn apart for this video?

The parents did something stupid and put it on the Internet. The world is already calling them vile and mean spirited. They will probably suffer social consequences for their actions. They’ve suffered enough. Destroying the entire family by calling in DCS doesn’t help.


Citizen Cromwell’s Day In Court

There’s times when you get a case, or look a the case, and wonder what the hell a person was thinking when they did something. And then there’s the “Sovereign Citizen,” which at this point I’m inclined to believe is code for “batshit insane.”

Consider the case of Lee Howard Cromwell, an alleged* member of this movement. He’s currently charged with several offenses, including numerous filings of false liens against government officials. That’s a familiar tactic of sovereign citizens. Cromwell is a special case, though. He’s charged with killing several people by driving his truck through a Fourth of July fireworks crowd.

There’s a question to Cromwell’s mental capacity. According to his twenty-seven page manifesto, he doesn’t need a driver license to operate a motor vehicle on roads. Instead, he carries a four page “constructive notice” citing certain Supreme Court cases that allegedly mean he doesn’t have to have a driver license since public transportation on roadways is a “common right.”

Cromwell also doesn’t think judges are legitimate, since they are not “licensed,” and receive compensation from the IRS. Attorneys licensed through their State Bar associations are not legitimate, either, since the State Bar is the one place where you can get a license to practice law.

Keep with me on this one. It gets better.

Lee Cromwell also thinks statutes aren’t laws. According to his sublime interpretation of the U.C.C., statutes aren’t law unless there’s a clear legislative intent to “abrogate the common law.” Therefore, because statutes are merely “corporate policies,” they aren’t laws, and they don’t apply.

Oh and Article III of the United States Constitution is under attack by treasonous people who call themselves “lawyers.” Since lawyers merely enforce corporate policy through the State Bar association, the Constitution is in jeopardy.

The one problem with all of Lee Cromwell’s “constructive notices,” failure to recognize courts, law enforcement, and lawyers as legitimate, and his resounding condemnation of the law, is his failure to justify any of  these positions in a manner that makes sense to a rational human being. Furthermore, his citations aren’t to any source of relevance.

Cromwell’s numerous “statutes” and “definitions” are pulled from things lawyers call secondary sources or reference material. He uses American Jurisprudence  (“AmJur,”) which is an encyclopedia of the law as referenced through case material. It is not law. Cromwell’s understanding of the U.C.C. and its relevance to modern law comes from a treatise called Anderson on the U.C.C., Text, Cases, and Commentaries. 

That volume contains no binding legal authority either. It is a person’s opinion on the Uniform Commercial Code, a set of laws dealing with commercial transactions. It has nothing to do whatsoever with the twelve counts of aggravated assault, reckless endangerment, vehicular homicide, murder, and criminally negligent homicide he’s facing.

We’re getting to even better stuff.

The conclusion to Lee Cromwell’s “Conditional Acceptance of your Security Instrument Offer**”  makes numerous demands of “substantial evidence” regarding the night in question, prove that he is a “citizen of” Anderson County, provide evidence as to who the named parties are in his case, and why he’s being held in jail instead of Anderson County simply filling out a Form 1099-A and recompensing the injured or survivors of those dead with money from a government agency he doesn’t recognize.

If the named individuals can’t meet Cromwell’s demands within fifteen days of receiving his “Conditional Acceptance,” all the named parties have to pay him five million dollars. And he gets to file liens against any of the named parties at any point in which he so chooses.

Now that you’ve been served your appetizer and main course of [ableist slur], here’s the ever so rich dessert.

Cromwell invoked his Fifth Amendment right against self incrimination during a deposition at the Anderson County Courthouse on April 12. In fact, that’s all he would say during the course of his deposition besides give his name, age, and address. Every single question got the same response: “I invoke my Fifth Amendment right against self-incrimination.”

This guy, who doesn’t believe the law applies to anyone, who thinks lawyers are practicing through a corporation committing treason against Article III of the United States Constitution, and who somehow managed to construct a completely new standard and burden of proof, backed slowly away from his demand of five million dollars and did what his lawyer told him to do: shut the hell up.

Normally I don’t touch crazy cases like this with a ten foot pole. There’s several lessons to be learned from Lee Cromwell and his “sovereign citizen” status. Let’s wrap up today’s material.

  1. You can call yourself a “sovereign citizen.” You are free to read the laws of this country in any fashion you so choose. When you run afoul of the actual laws, the people who went to school, trained in the profession, and work hard to keep your ass out of the fire are going to apply and use the law for you, whether or not you agree with how they do it.
  2. Cromwell did the right thing at his deposition. He paid attention to his attorney and shut up. Cromwell might have gritted his teeth through every bit of the deposition, but he shut up the entire time. Keeping your trap shut is as good a strategy as you can take in court, even if you’re a “sovereign citizen.”
  3. It’s not a good idea to question the legitimacy of the Court, Law Enforcement, or attorneys in a rambling demand letter pushing Trust and Maritime Law. Or to send it to Loretta Lynch.

I’m done. Happy Friday.

On Keeping Referrals Personal

Yesterday I had a nice chat with another attorney on the practice of client referral. Some of the material we discussed might be beneficial to lawyers starting their careers, so I thought I would share a few takeaways from our discussion. If you’re a non-lawyer, some of this might benefit you too, but this post is mostly for people in the legal profession.

There are times when someone like me has to admit they simply can’t help a client coming into the office. I work in limited fields, and if the matter is something requiring extremely specialized information I have to tell the person sitting across the table from me “I’m sorry, but I can’t help you with this. Let me see if I can find someone who can help you.” This is where I pull out my list of lawyers in town I trust and begin a referral process.

Never refer a potential new client to someone who can’t get the job done. 

Sure, there’s a never ending supply of bankruptcy lawyers, personal injury attorneys, and child support lawyers. That’s the nature of this business. The difference is that I won’t send someone to another attorney unless I know that lawyer is competent, professional, and will get the job done for the client.

If I know someone in that field, I’ve got a copy of their business card saved in Evernote. I keep separate notebooks grouped by practice area in Evernote (personal injury, bankruptcy, etc.) and copies of those business cards scanned for each. I will then write down the attorney’s information for the potential new client and then tell them I’ll be making a call on their behalf to let the lawyer know that person is coming.

If I don’t know someone who can help them, I’ll simply apologize, let them know I’m not the person for their job, and refund their consultation fee.

On the occasion I might be able to give someone some business, I call that attorney, let him or her know to expect a certain person, a brief discussion of the type of case, and let them know that person will be coming or calling by saying “Chris said to call you.”

Check in to see if the lawyer got the business. 

Once I make the connection, I set a reminder about seven days’ out from the date I make the referral to see if the prospective new client came to the other attorney and sought counsel. Usually I’ll get one of two responses: “Oh yeah, thanks. We did business” or “No, unfortunately we didn’t do business.”

“Doing business” is shorthand around here for “Yes, the client came in and signed the contract and paid the fee.” If the lawyer did business with the client, I’m happy for them.  If the client no-showed, or they somehow didn’t come to terms, I’ll usually toss out a “bummer” and offer to buy said lawyer a beer the next time we catch up.

Make sure to say “Thank You” for a referral. 

I’m of a mind that if a colleague refers me business and it ends up with money to feed my family, there’s a thank you coming to that colleague. It means they thought of me when they couldn’t help somebody, and it means they think I’m good enough for the job. That’s as good time to express some gratitude.

I don’t send money or participate in “kicking back” any of my fee to that lawyer. Some states may have rules against that. Personally it’s not my style. What I do is keep detailed notes on the interests of my colleagues and then make sure they get a very personal gift along with a nice, handwritten “thank you” note.

Here’s an example: I have a colleague who does crisis level domestic relations work. The kind that makes me cringe. He’s really good with high-maintenance clients. I’m not. He likes a certain type of Shiraz. If he sends me business, and the client and I do business, this guy’s getting a bottle of that Shiraz delivered to his office with a “thank you” note.

I have a thing for rare playing cards. When I refer out people to other attorneys, I always find it nice when I open the mailbox and find a deck or two of Madison Rounders, for example, with a thank you note.

Keeping the “thank you” personal is a way of showing you actually care about your colleagues enough to pay attention to their interests. It goes a long way, especially if you work in smaller communities. After all, the clients will come and go, but you’ll be working with the same lawyers for a good chunk of your career.

What to do if everything goes south? 

There are times when you will refer a client to someone, just knowing in your heart of hearts it’s a perfect fit. You know that client will work well with the attorney, and you know it will be a match made in heaven. You know the client will pay.

Then everything goes nuts. The client doesn’t pay. The two have a falling out. What do you do at this point?

This is a good time to review the three stages of an effective apology.

  1. “I’m sorry.”
  2. “It was my fault.”
  3. “What can I do to make it right?”

Most people forget parts 2 and 3. Let’s take a page from history to see how to remedy this situation.

Back in the infancy stages of my practice, a well meaning lawyer referred a guy we’ll call “Trucker Dan” to me for a child support case. “Trucker Dan” was behind on his child support payments. Dan was so far behind on his child support payments the local cops were ready to arrest him unless he paid in full what he owed his baby mama.

I met with Trucker Dan, we signed a contract, and I asked for payment. He told me he didn’t have the money that day, but he’d pay me the next day. After his hearing was finished, and I pulled his ass out of the fire.

I naively accepted this proposal. And pulled Trucker Dan’s ass out of the fire.

The next day I went to my mailbox and found an envelope with Trucker Dan’s name and address on it. It was a thick envelope. I went inside the office and opened it, thinking Trucker Dan decided to pay his bill in cash.

Turns out Trucker Dan never intended to pay me. The envelope was stuffed with coupons from fast food restaurants and truck stops in the total value of the price I’d quoted him, along with a note that said “I never had the money to pay you to begin with, and I’ve lost my house so I can’t pay you. I hope this makes up for it, and I’m really sorry.”

After loudly cursing a few times and taking a few deep breaths, I then called the lawyer who referred Trucker Dan my way. Said lawyer got parts 1, 2, and 3 right. When asking how to make this right, I said “Your guy paid me in coupons for food. I want dinner at (x) restaurant.”

“You got it.” my colleague replied. “Just go there tonight.”

So I made plans for dinner at that restaurant that night. I ordered a steak. I had a beer. When the time came to pay for the check, the wait staff said “Sorry sir, but we can’t accept your payment. It’s been taken care of.”

I tipped the waiter and left. The next day the referring lawyer got a thank you note for standing by their word.

There you have it. Hopefully this helps people who’ve not had the same life experiences as I ease their way into practice with a better relationship amongst colleagues. Referrals are great sources of business, but if you don’t handle it right you’re the one who comes out looking bad.