Fact Versus Fiction Versus Belief

I first started practicing law as a Public defender and continued a litigation practice for an additional 21 years.  I was convinced that the factual evidence, if presented in a logical way with my limited powers of persuasion, would convince a fairly selected jury to see things my way.  Recent events and my reading of a very interesting book, The Influential Mind by Tali Sharot, have brought me to a startling revelation.  When people are presented with factual evidence that goes against their deeply held beliefs, factual evidence does not sway them.  Instead they invent more reasons their prior position was actually correct. Sharot asserts that the smarter the person is, the greater their ability to rationalize and reinterpret discordant information and the greater the polarizing boomerang effect is likely to be.  What a blow to my litigator’s ego, but more importantly could this be a clue to our currently divided country.

I grew up in a household in which one side of the family held themselves out as Republican and the other side Rooseveltian Democrats.  Dinners were always filled with lively but civil discussions.  I never did adopt one brand or the other. As a result, I never had deeply held partisan political beliefs. I tried to adopt a common-sense approach that was unencumbered by partisan loyalty.   I think I detect that my situation is not commonly shared.  People today seem to have a great need to identify with a tribe, group, club, religious affiliation, or political party more than an open mind to consider a common-sense based solution.  This branding or group identity as a facility for deeply held beliefs seems to fit Sharot’s characterization to a tee.

How often do you hear that we are currently living in a “POST TRUTH ERA?”  For some, it of course assumes that there was ever a TRUTH ERA.  It may be more accurate to say that past political administrations have been more truthful that others, but to say they had the franchise on truth is a stretch. Any diehard Republican or Democrat will indicate that when their party held the White House it was the best of times.  How we measure the best of times seems now, as Sharot would say, “…the opportunity [to] rationalize and reinterpret discordant information to fit the preconceived notion.”

I take truth telling and listening to be a matter of character. Truth is the bedrock upon which the rule of law is based.  As a lawyer, whether a litigator or counsellor of the law, the truth must be the basis upon which we provide legal services. The truth may sometimes be difficult to either tell or receive but the legal profession must be the guardians of the rule of law.  I am very concerned that we are no longer a nation that respects the rule of law and the legal profession is not looked up as the guardian of the rule of law. We, as lawyers and/or as individuals of character, need to change that perception.

I wrote recently of the perception that the US Supreme Court was not a divided as we are led to believe is the case nationwide. The role of guardian of the rule of law for the legal profession starts at the top.   Recent leaks from the inner sanctum of the Supreme Court may prove me wrong that the Court is divided not along judicial lines but rather political lines.  Recently our Senate majority leader, who once said that he was dedicating himself to making sure the President Obama only served one term, recently said that the most important thing that the current President has done is appoint Justice Gorsuch to the Supreme Court. Politics has once again entered the Supreme Court.  The results of this term should be interesting. Stay tuned for further musings….

Is The Supreme Court Truly Supreme?

As a lawyer, I am most intrigued by the judicial branch of government.  The Supreme Court gets most of the headlines within legal news. But as my late great mentor Rollie Rogers (Colorado’s first Public Defender) said, "There is more (in) justice to be found (in) the lower courts down to the municipal level than there will ever be at the Supreme Court."
And while I believe this may have merit, it is to the Supreme Court that I turn my focus.

With the latest Supreme Court Justice coming from Colorado, and rumors of retirements abounding, I thought I would do a bit of analysis. I have gotten close to arguing before the Supreme Court but was denied, as are the vast majority of cases. It has been said that the hot button issues post Justice Scalia’s death were delayed.  The Court’s recent announcement of cases for the 2017 term makes up for the reticence.  The Court has already announced that it will hear cases on the following:  Trump’s travel ban, gay rights v. religious freedom, gerrymandering, internet/cellphone privacy, corporate violations of human rights and worker groups to address workplace issues.  Abortion, voting rights, and health care are also expected to make the docket.

The statistical analysis to understand ideological make up of the 2016-17 Court is not yet done and may skew due to the absence of a justice.  I am using stats for 2016 with some averaging in my analysis.  Most of these statistics come from a source called the SCOTUSblog Stat Pak.

Before launching into statistics, I thought some insight into my thinking would be helpful.  To my knowledge, the US Constitution does not refer to conservative/liberal, republican/democratic thinking, The Justices of the Supreme Court, the final arbiter of matters constitutional, should be interpreting the constitution not with conservative or liberal ideology, but rather with a disciplined legal analysis that recognizes constitutional principles in the context in which the cases arise.  The Founders knew not from airplanes, automobiles, pipelines, electricity, or the Internet, nor a country of more than 300 million people. Abraham Maslow might comment, "That is a lot of lab rats in the maze."  For those modern issues the Founder’s intent is inapposite.

For the last several years, approximately 8,000 cases per year are filed with the Supreme Court.  Oral argument was granted in approximately 80 cases.  In average, an additional 100 cases were decided without plenary review. On average for the past 5 terms, 49% of the cases were unanimously decided.  8% of the cases were decided 8 to 1, 12% of the cases were decided 7 to 2 and 11% of the cases were decided 6 to 3.  So 80% of the cases were decided by significant majorities.

19% of the cases were decided by a 5 to 4 vote. Those cases covered areas including 3 criminal law cases and one gerrymandering case.

For those of us here in the 10^th Circuit,  the Court accepted 3 cases, 1 was affirmed and 2 were reversed.

I am left with the conclusion that the Supreme Court may not be as divided as Congress or the country. Would another Justice appointed by our current President make a difference? Given the breakdown just presented, I suggest not.  If the Court rules on the 7 cases I mentioned in the first paragraph, we might project only 2 of those cases will be decided by a 5 to 4 vote.  I suppose those owners whose ox had been gored will be upset, but my thinking is that those justices may have a better vision for the country than either the Congress or the President.  Those two branches of government seemed to be more concerned with a vision of government and their reelection than a vision of our country.

The Last 100 days

100 days has become a standard of time for a measurement of success.  The most obvious example is the first 100 days of a President’s term.  As enticing as it may be to comment on our President’s first 100 days, instead I am actually going to share with you my last 100 days, which I hope you find more interesting than my commenting on the President’s first 100 days.  There are 3 events to discuss.  All three have a common theme, two are comparable and the last comes out of left field.

The first two involve business activities that have become all too common.  Both involve my representation of small companies that either sold assets or stock.  The last is a most recent newsworthy event that did not involve my representation, at least not yet.

For my entire first year in law school, we studied contracts.  The ins and outs of contracts fascinate and titillate law professors. The good ones pass on this fascination to their students.  I must have been bitten.  A foundation principle of contract law concerns contracts of adhesion.  Contracts of adhesion are currently defined as:

“A standard form contract drafted by one party (usually a business with stronger bargaining power) and signed by the weaker party (usually a consumer in need of goods or services), who must adhere to the contract and therefore does not have the power to negotiate or modify the terms of the contract.”

In many of the cases we studied, Courts held contracts of adhesion to be invalid and released the parties from the contractual obligations.

In the two business transactions I mentioned, I represented two small software development businesses whose assets or stock was purchased by Fortune 1000 companies.  In the transaction involving the asset purchase, the asset was a single application that solved a bedeviling problem.  We were presented with a thirty page sales and assignment agreement.  In the second transaction, a small software development company was being acquired by the acquisition of all of its stock.  The piece of software that was the heart of the company was essentially the only asset acquired.  However, the client’s development team was highly sought after.  The company had no hard assets and little revenue but it sold for multiple millions.  In that transaction, we were presented with a 100+ page purchase agreement.

In each contract, there were representations and warranties that the buyers wanted the sellers to make.  My job was to make sure that the sellers were not over representing or over warranting what it was that they were selling.  In each case, my legal training told me that these were contracts of adhesion.  Could they be negotiated? Yes, but not in any meaningful way if the deals were to ever be done.  Expediency won out over prolonged detailed negotiations.

It is the last example and an enlightening conversation that really made me sit bolt upright.  By now you all know about the poor soul who was dragged off a United Airlines plane when he refused to relinquish his seat on a flight that United oversold and had four company employees paying a lesser or no fare who needed to get to the plane’s destination.  As it turns out in the fine print of an airline ticket, which I have never read, (how many of you have read your cell phone contract, your cable contract, your concert or Bronco ticket, credit card contract or the purchase agreement for all your apps?), the airline reserves the right to de-seat you for any number of reasons.  The airlines apparently reserve the right to oversell a plane because of some algorithm which indicates that some number of people cancel or never show up for a flight.  I mistakenly thought that when you buy an airline ticket and pay your money, you have entered into a contract for transport from point A to point B.  Not so! And I find this outrageous. The conversation that made me sit bolt upright was with another lawyer, a consumer law expert, and a contemporary, who told me that he had not seen the concept of contracts of adhesion applied since he left law school.   Where have I been that I missed this lesson? The doctrine of contracts of adhesion needs to make a return and we need to start paying attention to the contracts we enter into.

My last 100 days has been rewarding in many ways, more importantly it has been educational, certainly in the lesson that today’s expediency to get the deal done or to get to point B is more important than a negotiated fair and just deal.  I wonder if the President appreciates the lessons of his last 100 days.

Caveat Emptor?

One of my recent experiences of buying something on line and trying to return it, turned into a minor nightmare, so I write this column as a form of therapy.

During my first year of law school, we studied contract law.  A part of that course was spent on the concept of CAVEAT EMPTOR.  The principle that the buyer assumes the risk of quality and condition unless the buyer protects him/herself by warranty or there has been a false representation.  CAVEAT EMPTOR was an English common law principle that replaced the old Roman principle of CAVEAT VENDITOR that actually places the responsibility for defects on the seller.  Those principles worked fine when we had face-to-face transactions on Bond Street or the Appian Way.  Now, we have the buyer’s digits facing off against the seller’s digits with the hope that the computer networks can sort it all out.  CAVEAT EMPTOR always fell away when the buyer could show a false representation.  I am not sure I know what the standards for true and false are anymore.  The digital world is compatible with our highly atomized society where communication is often electronic, whether by Facebook, email or text.  We hang out in our little cubicles with our laptops replacing windows for a look out on the world.  Long gone is that face-to-face world, as harsh as that may sound.  Want to have lunch?

In our political world, politicians now communicate by rumor, leaked information and Twitter. Gone are press conferences where the press gets to go face to face with the politicians.  This may in part be the result of the news media confusing entertainment with real news, or the need to be first with a story regardless of whether it has been fact checked.  Or it may be the distortion field on which politicians play where there is no true or false (eg “I did not have sex with that woman”; I did not mock a severely disabled reporter, etc.).  It is not wrong to question where our politicians are leading us nor is it unreasonable to ask them about conflicts of interest.  Who was it that said: “Trust but verify...” ? Independent of the political sphere, it is also fair to question where society is going and is everybody on board. 

In our commercial world, we buy price competitive goods, probably manufactured off shore, branded by a name from the past, shipped by foreign carriers to multinational distributors and sold through outlets (brick and mortar or our laptops) by vendors who claim no responsibility for the quality of those goods.  I think delivery of health care is currently being thoroughly examined because it requires face-to-face interactions, paid for by a soulless third party, who along with everyone else, lost the ability to value that kind of service.  I think there are many health care professionals who are resisting the impulse to reduce their patient interaction for the sake of maximizing profit. The legal profession, always a paragon of virtue,  has taken the measurement of the hourly fee to dizzying heights, and now even sensible corporate clients are beginning to question the value, or at least the measuring stick, of those legal services. I have recently learned that there are approximately 894,000 sole proprietor owned businesses in Colorado. Surely that is a crowd that enjoys one off relationships. I remain a hands-on lawyer that glories in attorney/client relationship when I have that face-to-face opportunity.

Thanks for allowing me my therapy; I’d be happy if you would share your thoughts on any of my musings or ramblings.