2 Things About The Supreme Court Hobby Lobby Decision

I. The Corporate Veil issue

Normally, a corporation is an independent entity, separate and distinct from its owners. This has been recognized for (literally) centuries as the point of creating a corporation. [By the way, corporations are a fairly recent form of business, dating back only to the middle of the 17th Century and are solely and completely the creation of the State.] Normally, if the corporation fails and/or goes bankrupt its debtors cannot collect from the owners they are protected by the “corporate veil” over the business. That’s the whole point of the corporate form of doing business.

But, and there is a big BUT here, it is possible on some occasions to pierce the “corporate veil.” I won’t go into all the different ways it can be done, but the key principle is that the “corporation” is seen as just another arm of the owners, that the owners did not maintain a proper distinction between corporate interests (usually financial but not always) and their personal interests.

Now, after Hobby Lobby, there is a fissure in the corporate veil. Closely held corporations and others attempting to take advantage of Hobby Lobby would do well to consider whether they are leaving themselves open to having their corporate veil pierced and becoming personally liable for all the debts of the corporation.

I predict serious litigation over this issue because it has not been addressed yet.

II. The religious issue

I don’t want to diminish anybody’s personal faith. But one thing about the Hobby Lobby take on religion bothers me. If I understand the beliefs of the Hobby Lobby owners, they are saying that not only are they personally forbidden from taking any steps or actions that might sin or lead to sin, they are forbidden to take any steps, even remote ones like buying insurance, which could lead other people to sin. This applies even more explicitly in Wheaton College, where the Supreme Court just granted the college an injunction last Thursday. (Wheaton College has announced that it cannot sign the government form affirming its religious beliefs so that a 3rd party insurer can step forward. The gravamen of Wheaton’s objection is that signing the form enables others to take actions Wheaton believes are sinful and therefore is equivalent to Wheaton sinning.)

Ummm. I think I have a problem with this. You see, I believe that I am the sole caretaker of myself. I neither want to permit others to determine what “sin” is for me and do not accept others’ definition of “sin.” Thus, I do not permit Orthodox Jews to tell me when I can or cannot drive. They believe it is a sin for them to drive on the Sabbath but they cannot stop me. If they see me walking to my car carrying my car keys, obviously intent on driving on the Sabbath, and try to stop me (so that they do not enable my sin) by, say, taking away my car keys I am entitled to, and will, resist. The “butterfly effect” of sin ought not be extended and empowered by the law—it can never end.

Now, let’s extend the Hobby Lobby and Wheaton College logic to something beyond health care. I sincerely believe that unmarried men and unmarried women should never be alone together in the same room. It is a sin and could lead to mortal sin, i.e., touching and moral corruption (sex). So, in the corporation I own and control, I do not permit my employees of the opposite sex to take their breaks in the same lunch room or to use any joint facility. I even insist that they enter through different doors so there is no accidental touching. In furtherance of my religious beliefs, I create separate but equal facilities for both sexes and strictly enforce their separation.

Is this discrimination? If so, do I get an exemption from the law because of my heartfelt belief which I am implementing through my corporation? What gives me, the owner of the corporation, to control my employees to the extent that I dictate who they may not sit with, not eat with, not socialize with? Where are the employees’ rights? Why do my religious rights as employer trump my employees’ rights? Remember, this is a corporationbusiness, not my private home or a church.

By the way, although I am not a religious man, I understand that most religions believe that humans have free will and the right of an individual to make mistakes. How does that right square with the “butterfly effect” of my obligation not to enable you to sin?

I predict that there will be more litigation over this issue too.

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I’ve Got A Birthday Coming Up

Or maybe it is an anniversary. I’m not sure. Whatever it is though, it’s special to me. No, it is not my birthday as most think of it. It’s the day after my birthday when, after 3 years of talking, begging and pleading, my parents allowed me to start studying Judo and Karate. Will wonders never cease? In 1964 nice Jewish boys did not study fighting – at least not if you didn’t live in Israel. (I can’t speak for that experience.) But it was different for me. I needed to study judo and karate – needed it with a passion that can only be appreciated now, 50 years later. That’s right: 50 years I’ve been studying, training, reading, thinking about the martial arts, what they mean, how to do better at them.

Fifty years! That’s over nineteen thousand days. Over that time I’ve probably worked out, studied, strained and pushed myself on over 8,000 days. Maybe even 9,000 days. I don’t think it’s been 10,000 days yet. And my workouts averaged at least 2 hours. There were years when I would work out 6 days a week, 3-4 hours a day. I truly have no idea how much time I’ve spent in the dojo or watching tape or reading and studying the martial arts. But it must be 15,000 – 20,000 hours. Maybe more.

So on this date, at this time, I thought I should mention just a few of the people who inspired me, trained me and encouraged me:

  • Sensei Yamagushi, my first sensei, in Mexico City, who taught me Judo and Shotokan karate;
  • Tatsumo Makeda who taught me Ishen -ryu karate;
  • Mr. Roberts, my GrandMaster, who taught me for almost 30 years, Mu Duk Kwon Tang Su Do and Myu Sim Ryu weapons;
  • the 3 hermanos Goldfarb in Mexico City who taught me never to back down,
  • Trooper and
  • Sherman.

There are also you others (you know who you are), whose names are left unsaid but not forgotten who also taught by example and inspiration.

It’s funny how when you are 16 you don’t realize what you are getting yourself into. Funny how, when you are 66, you look back at the journey and marvel, not at what you’ve done but at how much more there is to do. And then I wonder whether there will be time to do it. I hope so.

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I’m Not A Miracle Worker

No lawyer is. We can help. We can sometimes solve problems. But none of us can do the impossible.

    1. I can’t make the case go faster just because you want me to.

    2. You rented your investment condo/house to a deadbeat. I can’t collect money from a turnip.

    3. The Defendant will take the full amount of time you allowed him to come up with the settlement money. Your current need has nothing to do with what you promised her/him in writing and no matter how many times you call or email me nothing will change.

    4. I cannot control what others do. That includes your ex-partner. This means that if you don’t have a written agreement, I cannot force them to

    a. Sell you their share of the company for the price you want;
    b. Let you control the company; or
    c. pay you the salary you think you should get.

    To try and solve these problems we have to go to court and you have to pay me to do that.

    5. It is not my fault that you wouldn’t listen to me during the deposition when I told you on the break that you were talking too much. If you pretty much screwed up your case on your own please do not blame me.

    6. It is not my fault that your first lawyer didn’t get you everything you wanted.

    7. It is not my fault that some other lawyer told you wrong and you don’t like that what I am telling you is the law.

    8. It is not my fault that they “do it differently” from .

    9. It’s not my fault that you lied to your attorney, and your lies came out during a witness’s deposition, and at the 11th hour before trial/arbitration, and so you got nothing, and probably lost some things in the process, and could have saved yourself the expense of having to pay your attorney if you’d only told the truth from the get go.

    10. It’s not my fault that you failed to file a tax return for 10 years and finally got caught. I’m just trying to fix the problem and if it takes longer than you wish or costs too much please remember who got you into this fix.

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There Is A Joke I Tell Sometimes

A man decides to cross North America in a hot air balloon. However, not planning real well and going way too high, he soon becomes lost.  He lets some hot air out of the balloon, which slowly descended below the clouds, but he still cannot tell where he is. Far below, he sees a woman on the ground. The man lowered the balloon, to ask the woman his location.

Hot Air Balloon

Hot Air Balloon (Photo credit: Eric Lim Photography)

When he was low enough, the man called down to the woman, “Hey, can you tell me where I am?”

The woman on the ground yelled back, “You are in a balloon, about 100 feet up in the air.”

The man called down to the woman, “You must be a lawyer.”

She answered “Yes, but how can you tell?”

The man answered, “Because the advice you gave me is 100% accurate, and totally useless.”

“Well,” the woman replied, “you do not know where you are, or where you are going. You got into your predicament through a lack of planning, and could have avoided it by asking for help before you acted. You expect me to provide an instant remedy. And the fact is you are in the exact same position you were in before we met, but now it is somehow my fault.”

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Games Lawyers Play

Today’s game is called:  rush the witness.  Fact:  the other side wants to take your client’s deposition before turning over the documents it is obligated to turn over in normal discovery.  What can you, the lawyer do?  After all, the other side is entitled to take your client’s deposition and can do that whenever it wishes to schedule it.  Even before turning over documents responsive to your discovery requests.  There are 2 possible answers:

  1. Rush to court for a protective order arguing that your client cannot properly respond to deposition questions without first seeing and reviewing the documents and asking the court to postpone the deposition until after the documents have been turned over to you.
  2. Prepping the witness to clearly state that s/he is only guessing and that her/his memory is not certain.  Then say that there are documents which might refresh her/his memory and that the answers might change after reviewing the documents.  If you do this, the other side must either postpone the deposition until after you have received and reviewed the documents or turn the documents over right then for you and your client to review.  (And any answers after the quick review might still change upon further consideration.)

Now, at trial, the other side has a major problem if trial testimony is significantly different from deposition testimony. Why?  Because, when asked why the testimony is different the answer is “You, Mr. Lawyer, did not give me the documents to review (or time to review the documents properly).  Now I have properly reviewed them so I don’t have to guess or make approximations and can testify exactly to what happened.”  Oops!  The jury will love you, the client, and think the lawyer was trying to pull a fast one on you and on them.  Juries hate that.  Heh Heh heh

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Don’t Write On The Originals!

Sometimes potential clients will come to me with documents already prepared.  Many times they will have yellow highlights, written notes, comments, thoughts, cross-referencing to other documents and other “blemishes.”  Is this a good idea?  While some attorneys might disagree with me, I both love it and hate it.  What?  Why do I say that?

I hate it when clients write on the originals.  Then they are of limited use as exhibits at trial etc.  I need the original without your thoughts and opinions which are meant for your lawyer.  So please DON’T WRITE ON THE ORIGINALS.

DO write on copies.  I love it when you write on copies because then I have your thoughts and opinions and can tell what is important to you.  It also lets me see how analytical you are, how reasonable you will be, and how clearly you think and write.  That helps me understand if we would be a good team for your litigation.

BOTTOM LINE:  MAKE COPIES AND WRITE ON THE COPIES.  BUT PROTECT THE ORIGINALS LIKE THE PRECIOUS THINGS THEY ARE.

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Doing My Best

I care about every case and every client.  They come to me for help.  I try my damndest for them.  But sometimes I lose.  God I hate that.  It hurts to lose.  But there are some clients (a very few) where I watch the impact on them and it hurts even more.  I don’t know why.  I’ll move on.  I’ll have more cases and more wins and losses. But they won’t. And it hurts me to see that.

There’s a reason I don’t do criminal law any more or divorces.  It just hurts too much when I lose those cases.It’s one thing to tell client that they need to pay money, even a lot of money; but it’s another thing to tell them they’re losing their child or going to have to go to prison or jail.

Litigation is a lot like playing cornerback in football—a bad short-term memory (so the losses don’t keep you from doing your best next time out) and a good long-term memory so I am always learning.  There’s a reason they call it the “practice” of law:  you can always do better.  So I just always do my best.  No excuses, no exceptions.

People ask me sometimes what my win-loss record is.  To be frank, I really don’t know.  Part of the problem is figuring out what a “win” really is.  A good settlement?  A win in court where the client doesn’t get all they want?  I have the same problem figuring out what a “loss” is.  Sometimes what I call a “win” the client calls a “loss” and vice versa.

Litigation is not for the brittle.

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Consultations

Yes, Kaufman Law does do consultations before being hired.  In fact, we require these consultations to be sure that a) your legal problem is a problem that we are interested in and competent to handle and b) that we can work together as a team to resolve your legal problem.  Generally these consultations are 60-90 minutes long but sometimes are longer.  But, these consultations are not free.  Instead, there is a fixed fee charged for the consultation, one which is significantly less than Kaufman’s hourly rate.  If you decide not to go forward with Kaufman Law, that is all you will have to pay.  If you do decide to hire Kaufman Law, you will receive a credit on your first invoice equal to the consultation charge, rendering the consultation “free.”

One thing more to note:  when you make an appointment we will ask you for your credit card.  If you do not appear for your appointment and do not cancel it, you will be charged the full consultation fee.  If you cancel the appointment more than 48 hours in advance, there will be no charge at all.  If you cancel with more than 24, but less than 48, hours notice, you will be charged half the consultation fee.  Any cancellation with less than 24 hours notice will be treated as if you failed to cancel and you will be charged the full consultation fee.  We regret having to do this but recently there have been many inquiries and appointments made with the potential client simply not appearing.  This behavior costs Kaufman Law and its clients because preparing for a meeting with a potential new client takes time-time which could be better used taking care of our existing clients.

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What is Pro Bono Work/Why Won’t An Attorney Take My Case For Free?

A potential client was very upset and offended today when I told him I would not handle his case “pro bono.”  While I felt bad about the predicament the client was in, the case was not one where pro bono service was appropriate.

http://elderlawissues.blogspot.com/2014/03/what-is-pro-bono-workwhy-wont-attorney.html

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Do I Tell A Client S/he Has “No Case”?

Rarely.  Usually the client has been wronged but it would be very costly to litigate the case and the recoverable damages are low relative to the cost of the litigation.  So Ms Client, if you hear a lawyer tell you that you have “no case” ask questions.  Like:

  •  Are you telling me it would cost too much to pursue?  Why are you saying that?
  • Are you telling me that it’s a bad fit for your office?  Why?
  • Might other lawyers be interested in this case?  Do you now any of them?
  • Are you telling me that there are problems of proof in the case?

I do sometimes do commercial litigation on a contingency fee. But, also, I do tell potential clients that I’d be happy to take their case if they paid an hourly fee, but that the damages are not high enough, or liability is too speculative, or the defendant is insufficiently credit-worthy for me to take it on a contingency.

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