Lawyer Mama

Don't Ask, Don't Tell Ruled Unconstitutional: Big Surprise

I wrote this post for BlogHer a couple of weeks ago, but my overworked/slacker self didn't post it here until now!

The Department of Defense has not handled Don't Ask, Don't Tell well.

In case you've been living under a rock, DADT is the official military policy on gays and lesbians in the military. Under federal law, gays are prohibited from openly disclosing their sexual orientation while serving in the U.S. armed forces. Make no mistake. Gays are definitely serving in the military right now. They just have to lie to everyone about a fundamental part of their lives to do it.

That's wrong. Even top brass in the military agree that DADT is wrong.

The House and Senate were poised to legislatively end DADT this year, but Secretary Gates asked them to give the Department of Defense time to study the issue. Now, I'm a huge fan of research, but I don't see why a mammoth study is necessary to do the right thing. I understand that issues will arise, but I don't necessarily think that they'll be quite as complicated as the DoD thinks.

As part of the DADT study, the DoD surveyed service members about their feelings. Yes, their feelings! It's almost as if the DoD seems to think that repealing DADT will result in gay pride parades on bases across the U.S. and soldiers sashaying across the battlefield. That gives the term “battle buddy” a whole new meaning, doesn't it? But seriously, it's not like military uniform regulations will be changed to allow pink feather boas and sparkly tiaras with BDUs. Nor will love pats on the rears of fellow service members or shower love play suddenly become OK. In actuality, nothing much about military culture is likely to change.

In an effort to make sure everyone has a chance to air their views, the DoD also surveyed military spouses about DADT and gays in the military. You read that right. They surveyed the spouses! Never before has the military consulted spouses about DoD policy in this manner and the questions were ridiculous, nearly equating being homosexual with having typhoid or leprosy. I'm just waiting for the survey of our pets' feelings on Sgt. Gus and his partner Bob being allowed to bring their poodle to the base dog park.

Read the rest of this post on BlogHer.com.

Ask Lawyer Mama: Freedom of Speech

In the past I have frequently declared that I do not discuss the law on Lawyer Mama.

But.

This is my blog and I can change the rules if I want to!  Seriously though, I have been fielding a lot of legal questions on Facebook lately.  I've gotten everything from how the new health care bill will affect Tricare (it won't, despite what the fear mongers say) to Constitutional questions about the Supremacy Clause and the First Amendment.  So, I'm going to start answering them here.

The reasons I stayed away from legal analysis on Lawyer Mama just don't seem as important as they once did.  Perhaps because I'm no longer practicing in a law firm, but on my own terms.  Perhaps it's because I've neglected the blogosphere to such an extent that not many people actually read my blog anymore.  Although I still seem to have an awful lot of readers from Bangladesh and St. Louis.  Go figure.  Anyway, I'm going to write about the law.  Hell hath frozen over.

I'll try to keep this free from legalese, which also means I'm going to condense much of the factual and legal background and eliminate the use of endless citations. Normally, almost everything I write in a legal brief is followed by a citation of law or authority.  This is not a legal brief.

Ask Lawyer Mama: Freedom of Speech

The Question:

On Facebook, my milfam friend Carrie asks:

So the Marine's father who sued Fred Phelps has been ordered to pay Phelps' court costs. Now maybe you know but does the constitution protect people to protest ANYWHERE they want, or just their right to protest?

Background:

Fred Phelps is that fabulous guy from the Westboro Baptist Church who claims to be a "Christian" and travels the country with Hallmark Hall of Fame placards with such lovely quotes as "God Hates Fags," "You're Going to Hell," "Thank God for Dead Soldiers," and my personal favorite, "Semper fi fags."  Classy guy, I know.

Mr. Phelps and his misguided followers decided to protest, along with their lovely signs, at the funeral of Lance Corporal Matthew Snyder, who was killed in action in Iraq in 2006.  His family was understandably displeased.  Al Snyder, Matthew's father, sued Westboro Baptist Church, Mr. Phelps and several members of his family/church (the "Defendants") in federal court in Maryland.  He argued that the members of the Westoboro church invaded his privacy and caused intentional infliction of emotional distress.  Mr. Snyder won almost $11 million at trial.  (This was later reduced to $5 million by the district court.)

Phelps appealed and the Fourth Circuit Court of Appeals reversed the decision of the trial court in September of 2009.  No, Phelps was not represented by the ACLU, but they did file an amicus (friend of the court) brief in support of Phelps, et al.

The case is in the news more recently because Phelps, et al. petitioned the court for costs and the 4th Circuit ordered Mr. Snyder to pay Phelps about $16,000 to cover the costs of the ongoing litigation. 

The Fourth Circuit summed up the two sides quite nicely in their opinion:

Defendants’ rationale was quite simple. They traveled to Matthew Snyder’s funeral in order to publicize their message of God’s hatred of America for its tolerance of homosexuality. In Plaintiff’s eyes, Defendants turned the funeral for his son into a "media circus for their benefit."

The Defendants complied with local ordinances and police directions regarding staying a certain distance from the church.  Mr. Snyder did not see the signs until he later saw a news broadcast with footage of the Phelps family at the Church.

Congress shall make no law...abridging the freedom of speech.

Let's start with something we should all recognize from the Bill of Rights, the First Amendment to the Constitution.  It states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(The First Amendment also applies at the state and local level through the Fourteenth Amendment, in case you were wondering.)  Not all speech is protected by the First Amendment.  It's a balancing act.  Speech that causes physical harm isn't OK.  You also won't be protected by the First Amendment if you decide to say something about an individual that is factually wrong.  (You can't erect a sign in front of your house that says your neighbor is a pedophile unless he actually is.)  However, just because speech is hateful or offensive does not mean that it can be suppressed.  The government can place reasonable "time, place and manner" restrictions on speech but the restrictions have to be narrowly tailored and balance the interests, and rights, of everyone involved.

Here, Mr. Snyder's tort awards could only be upheld if the award was consistent with the Defendants' First Amendment guarantees. See Food Lion v. Capital Cities/ABC, Inc., 194 F.3d 505, 522 (4th Cir. 1999).  Speech, even if hateful and offensive, can still be protected speech if it isn't physically harmful or disruptive and it doesn't involve false statements about an individual.

(This is a gross oversimplification of the law here, but I'm trying to spare you the minutiae of the law regarding general speech versus speech clearly directed at an individual. Let's just say there was some debate over whether the signs carried by Phelps et al. were general statements of opinion, such as "God hates America," or specific factual statements aimed at the Phelps family such as "You're going to hell.")

The Fourth Circuit reversed the district court on two issues:

1. The Fourth Circuit explained that the district court erred in permitting some instructions to the jury that allowed the jury to determine something that is an issue of law, mainly whether or not the Defendants' "speech" (signs, etc...) were entitled to Constitutional protection.  The scope of protection afforded under the First Amendment is a legal question, not a factual one.  Juries only decide issues of fact; courts determine issues of law.
2. The signs carried by the Defendants were entitled to Constitutional protection because they "[did] not assert provable facts about an individual, and they clearly contain[ed] imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants [were] concerned."

In other words, because Phelps' signs weren't like the front yard sign about your neighbor's pedophilia, something that can be proved or disproved, they were considered "hyperbolic rhetoric" protected by the First Amendment.

The Fourth Circuit closed with a quote from Judge Hall that I'll share with you:

Judges defending the Constitution "must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people."

(citing Kopf v. Skyrm, 993 F.2d 374, 380 (4th Cir. 1993).). The First Amendment may protect some pretty nasty people and some horribly hateful words, but we have to hold our noses and uphold the Constitution.

It's Not Over

Now, lest you think that this is the end of the matter on this subject, let me assure you it's not. 

Snyder has appealed the Fourth Circuit's decision to the Supreme Court and the Court has agreed to hear it.  This generally means the law is not clear, the Circuit Courts of Appeal are not in agreement, or the Supreme Court just thinks it's time to clarify the state of the law. Here, there is no clear split in the case law of the federal circuit courts, but we have to remember that it only takes 4 of the 9 justices to grant a Writ of Certiorari (the petition to the Supreme Court to hear a case).

It could be that the Court wants to clarify the issue I alluded to regarding factual or general speech directed at individuals.  Courts have also tended to allow more restrictions on speech at funerals because the funeral goers are pretty much a "captive audience." The Supreme Court might be ready to expand protections for those who are a "captive audience."  I seriously doubt it though.  Expanding those protections would also expand protections for people arriving at abortion clinics during a protest.  Somehow I can't see the Roberts Court telling abortion protesters they have to back off.

My Two Cents

What about Carrie's question?  Does the Constitution allow people to protest wherever they want?

The answer is no, it doesn't.  Remember, the government can place "reasonable time, place and manner" restrictions on speech.  Many states have passed laws regarding protests at funerals and Congress has placed some restrictions on protests at funerals on federal property.  

In fact, Maryland, where Matthew Snyder's funeral was held, has a restriction on protests at funerals in place.  The Maryland law provides one of the most generous buffer zones in the country, requiring that protesters stay 1000 feet away from the funeral.  Phelps and his followers were complying with local ordinances and state police when they protested at Matthew Snyder's funeral. 

So, as hateful as Mr. Phelps and the members of the Westboro Baptist Church are, they do have the right to peaceably assemble and spread their message of hate.  Like the skinheads and the KKK before them, Phelps is engaging in an activity protected by the First Amendment.

We don't have to like it.  In fact, I must add that I wouldn't be at all disappointed if Mr. Phelps was struck by a meteor falling from the sky.  Or if he encountered 3 huge Marines in a dark alley while holding his "Semper fi fags" sign.  (But then I've never pretended to be a Christian, which is more than Mr. Phelps can say.) But the Bill of Rights that allows me to stand outside my Congressman's office with a sign telling him what I think about health care reform, also applies to people like Fred Phelps at public funerals.

We can only hope Phelps understands the significance of the Constitutional protections he invokes to promote his hateful speech; the Constitution that Lance Corporal Snyder and his comrades in arms have sworn to protect and defend with their lives. 

If there is a God, Mr. Phelps, she is watching you.

And now for the Lawyer Mama Disclaimer: If you think I'm offering you legal advice or that this has established an attorney-client relationship, you're an idiot and you shouldn't be reading my blog. If so, slap yourself in the forehead. Right now! Oh, and I'd like to sell you a bridge in Brooklyn.

Photo courtesy of the Source 4 Politics blog.

Another View of the Criminal Justice System

 When most people think of the law, they think of cops and robbers, the TV show Law & Order and maybe a dedicated district attorney putting criminals away in a 1 hour storyline.  The good guys are always vindicated and the bad guys always go to jail.

Not me.  I'm a lawyer, and a civil litigator at that.  When I was in law school and people asked me what kind of law I wanted to go into I swore up and down I would *never* do criminal law on either side of the aisle.  I said I didn't want that kind of responsibility.

In my first incarnation of an attorney, I was a civil litigator specializing in contract law.  A partner at my first firm once told me that the great thing about it was "It's just money, and it's not ours."  So I've managed to stay pretty far away from the criminal side of my profession and I liked it that way just fine.

Fast forward to 4 days ago when two thugs broke into my house.  While I was in it.

I was upstairs working in my office, heard a door and went down to investigate, thinking T had come home early.  I went down our second staircase and surprised two young white guys hauling a laundry basket down our main stair case.  In the split second it took me to decide that they were not there to do my laundry for me, I slammed my hand down on the alarm system and sent the burglars fleeing out the back door they had smashed in.

The police came very quickly; I gave fabulously accurate descriptions in an attempt to shatter all those things we know about how unreliable eye witness testimony is; the K9 dog came and tracked them out to the highway; forensics came and got nothing, except for some very slimy prints that I think contained PB&J at about waist height.

And then I fell the fuck apart.

I couldn't track down T and had to send my dear friend Lauren over to his office to fetch him.  We all camped at Lauren's that night, played with Lauren the next day, I went to work with T on Thursday and camped out in a vacant office, and then T stayed home with me on Friday.  I haven't been alone in my house yet.

Our back door has been fixed, and fixed very well.  That mofo is STRONG now.  But still, with those random scruffy, thuggy KIDS out there, my home no longer feels safe and cozy.  The privacy I used to adore in our backyard is now the reason "they" were able to break into my house, despite a well traveled street and a home full of elderly people staring out at it every day from across the street!

I was starting to wonder how long I could occupy the office in T's building before they start charging me rent.  Then my detective called today.  He asked me if I thought I could recognize the assholes who broke into my house again.  (Of course, he didn't actually call them assholes.)  I said yes, so he's putting together a photo line-up for me to look at in the next day or so.

I'm trying not to read too much into this, but I'm secretly hoping this means they caught them breaking into another house and would like to add on another charge and close my case.

To keep from getting terribly nervous, I've decided to treat it as a legal exercise.  I learned all about legal line-ups during crim pro.  Let's put it to the test.  And let's see if I *can* remember what they look like.  I gave a pretty accurate description at the time and, of course, I have those pictures in my mind that won't go away.  But maybe, just maybe, if I see them again in two dimensional form, they'll stop being so three dimensional in my dreams.  And then maybe I can delete my brand new post category, fear.

Negotiating With a Toddler

At the age of 2, Hollis only said a couple of things: mine, no, and Daddy.  Yeah, no Mommy for that kid.  Not until he was like 2 1/2.  Traitor.

I'm not sure when things changed so dramatically, but now at the age of 3 1/2, the kid won't shut up.  He has an answer for everything.  If he asks us a question and doesn't like our answer, he will insist that we are wrong.  Even if I'm telling him something like "Mommy is a girl and Daddy is a boy."  I'll get back from Hollis something like, "No, Mommy.  Daddy isn't a boy.  I'm a boy.  Daddy is big and I'm littler than he is so Daddy is not a boy."  I thought we were supposed to be all knowing until he hit his pre-teen years.  What happened?

Honestly, I'm thinking of sending Hollis to the middle east to broker a peace agreement or maybe using him during my next mediation.  The kid is relentless.

Here's a recent conversation between Hollis and T over whether or not Hollis could have some more candy from a birthday goody bag.

Hollis: "Daddy, can I have these now?"  (Holding aloft a small package of Sweet Tarts.)
T: "No, Hollis.  We're going to have dinner when we get home."
Hollis: "But I want them."
T: "I know you do, but they'll spoil your dinner."
Hollis: "But they're good."
T: "Yes, I know they're tasty, but you need to eat dinner."
Hollis: "But they are dinner."
T: ?????  (Stunned silence) "Huh? They're candy, Hollis."
Hollis: "No, they aren't. See the package says dinner."  Pointing to the words "Sweet Tart" on the package H says, "that spells DINNNNNNNERRRRR."

Let's see.  We have: (1) a passionate love of the sound of his own voice; (2) an opinion about everything;  (3) the inability to admit an error; and (4) blatant disregard for the facts in pursuit of his own agenda. 

I think I've given birth to a future lawyer.

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I have a review up on Law(yer Mama) Review for a new photo subscription service called Kinzin.  It's wonderful for keeping the grandparents up to date!

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For now, Lawyer Mama Dabbles is going to stay on Blogger.  I need to recover from the trauma of this move before I try moving all my photos!  I'll keep posting there, but I've also set up an album on this blog with some of my favorite photos from Lawyer Mama Dabbles and my Flickr account.  I actually like it because you can view the photos much larger than you can on the blog.

Sexism: This is What Hillary Clinton is up Against

Sometimes I live in a little bubble. A comfortable little bubble with no overt racism, sexism, or even social conservatism. I'm surrounded by people who think like me. I read blogs of mostly people who think like me politically. (With a few awesomely wonderful exceptions. You know who you are!) I may make forays into the non-like minded blogging world, but it's usually just to keep abreast of what anti-Liberal propaganda is floating around out there.

I like to think there is a little more air in my bubble than, say, George W. Bush's. But sometimes I wonder if I'm just as out of touch with reality. In this case, a woman's reality.

My parents taught me, like so many other girls of my generation, that I could do anything or be anything. My gender was never an issue.

As a little girl, I played soccer on a team full of boys. I played tee ball and baseball on a team full of boys. I joined a swim team, with girls and boys. I climbed trees; I played flag football; I mowed the lawn. I took advanced math classes; I started out college majoring in Computer Science; I took the hard science classes; I went to law school.

It never mattered that I was a girl and then, a woman.

There were a couple of incidents here and there, but I chalked them up as isolated happenings and not a symptom of the larger world. I clearly recall an argument I had in my college black studies class with a fellow class mate and Male Chauvinist Pig. In our class, our discussions generally started out with race and then moved to our sheltered little college world. Or, we started out talking about our lives and then moved onto race. It was an effective teaching tool and I looked forward to our twice weekly discussions.

On this particular occasion I can't recall how the argument started, but I remember the MCP raising his hand and stating that, of course, a man was far more important to the stability and health of a relationship than a woman was because of the male earning power. He went on to say that a woman wasn't without value but that if he or his future wife wanted someone to stay home with their children, it would be her. Because, of course, Mr. MCP would be making more money.

That was like waiving a red flag in front of a bull.

I raised my hand and retorted that his argument was based on antiquated gender stereotypes, that in my future career I would undoubtedly make more money than my husband (sorry, T.) and that if one of us stayed home it would be him. Did that make *me* more important in our marriage? Then I told the class that if Mr. MCP didn't change his attitude, his importance to a marriage would become a moot point because no one would marry such a blatant misogynist.

I got a standing ovation.

So I assumed that encounters I had with future MCP's were similar and that the rest of the world was cheering me on.

Then I entered the professional world.

Before I headed off to law school, I worked for an insurance company I've mentioned here in the past. I began to notice that most of the lowest level employees were women: the claims processors, the administrative assistants, the clerks. Men who started out in the lower ranking jobs moved up more quickly, with the same experience and education. The vast majority of the upper level supervisors were men.

About this time I also started to deal with something that had happened to me in college and began actually paying attention to the world around me. What I saw was frightening. Girls and women were starving themselves to meet some strange physical ideal. I had friends and co-workers who twisted themselves up inside and completely changed their lives, interests and personalities to make their men happy.

I had begun doing volunteer work in college and, as I became more and more involved with the Violence Against Women program, I began to see what was happening outside of my little bubble. While clearly not everyone was suffering as much as the women I counseled, I saw how our society was hurting all women.

Women had lower salaries, lower expectations and more difficulties in the professional and non-professional world. We live in a "girl poisoning" culture. Sexism is rampant and deeply ingrained into our culture. It may be overt, such as sexual harassment, or it may be as subtle as the magazine covers in the grocery store.

It's there.

Now that I am a lawyer, I work in an area of the law that is dominated by men. I specialize in construction litigation. I have to admit that I enjoy being underestimated by opposing counsel or opposing experts. I've always assumed that it's not because I'm a woman, but because I'm a 5'2" cute woman. I also love that there is never much of a line for the ladies' restroom at the conferences I attend.

I've gone back to pretending that gender doesn't matter because it hasn't overtly affected me.

One of the professional organizations that I belong to is the National Association of Women in Construction (NAWIC). It's purpose is to promote women in the construction field and to break down barriers and eliminate stereotypes. I've been proud to be a member of a professional organization with such an important goal.

Then I received our NAWIC magazine for the month.

In case you can't read it, that headline says "What's hot in Residential Construction." That is Extreme Makeover: Home Edition's Paige Hemmis on the cover in a hardhat, shorts, pink tool belt, a light pink tank top, and hot pink sports bra.

This is what Ms. Hemmis generally wears on her show. I'm sure it is comfortable and, let's face it, the show is on TV for entertainment. I'm sure ABC thinks that Ms. Hemmis is far more entertaining in that get up than in usual construction attire. Although I hope to GOD that none of my clients allow someone dressed like that onto a construction site. Jeans and steel toed boots are safer and more appropriate.

It doesn't annoy me to have Ms. Hemmis on the cover. After all, she is an accomplished woman. She was a certified EMT. She has college degrees in theology and psychology. She is a self-taught carpenter and co-founded Rent to Own Investments, a company that renovates houses and helps develop rent-to-own arrangements for people who can't afford down payments. In her spare time, she races cars.

This is one woman who has it all.

The interview with Ms. Hemmis was nice, as were the additional photos inside the magazine. However, the NAWIC IMAGE editor chose to put the most provocative photo of all on the cover, along with the headline What's hot in Residential Construction. What does that cover say to you?

It doesn't say, "I'm a confident, intelligent, ambitious, ans successful woman in construction." It says, "I'm a pin-up girl who happens to work in construction. Don't I look sexy in my tool belt?" At least that's what it says to me and every other woman in my firm who has seen the cover. In fact, our NAWIC chapter wrote a letter of protest to the editor.

I don't blame Ms. Hemmis. I don't even necessarily blame the magazine editor, who claims that she didn't view the cover in this manner at all. Instead I blame all of us. I blame society. It is second nature to all of us to use sexy instead of competent as a marketing tool. Those of us who accept it are just as guilty. An accomplished woman like Ms. Hemmis is viewed as hot rather than intelligent and capable. And this is from an organization dedicated to eliminating stereotypes and breaking down gender barriers.

With sexism so firmly entrenched in our society, I ask all of you: Does Hillary even stand a chance?

Maybe I'll go back to my bubble now.

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The D.C. Metro Moms are discussing Parenting Guilt today. Pop on over to read all of our posts about guilt and the chance to win Devra Renner and Aviva Pflock's book, Mommy Guilt.

Do Caretakers Receive Disparate Treatment?

I'm guest blogging over at Pundit Mom's today. Come on over and read my post about being a parent and a professional:

Do Caretakers Receive Disparate Treatment?

This Isn't About the Law

When I started this blog I didn't really expect anyone other than my mom, and occasionally my husband, to read it. But I love this little community I've stumbled upon. I've developed real relationships with many of you - at least in my head - and at least one real live friend.

When I started this blog, it was also with the intent to remain anonymous aside from a few friends and family. That went by the wayside when a co-worker and friend blabbed about my blog to some other co-workers. (L - chill, you know I'm just poking at you.) Then, in a fit of insanity, I wrote a guest post for a rather popular blog on WashingtonPost.com under my real name, and they linked it to my blog.

Hell, many of you know my real name and where I work because I tend to reply to comments from my work email address. Actually, the only reason my real name does not appear on this blog is fear of The Google. I really don't want a prospective client to type my name into Google and have this be the first link. If someone is dedicated enough to find my blog with my real name and Google, it will take them a while to get there and they will be forced to slog through many of my professional publications to get there. If someone finds my blog after all that work, I'm perfectly OK with that.

But still, there is one line I will not cross. (Well, actually there are a few, but this is not a post about sex. Sorry to disappoint.)

I do not discuss the law.

It may come as a disappointment to people who click on a link to my blog expecting a "legal blog" but, despite my blog name, I will never focus on the law. Don't get me wrong, I would love to show off my legal brain here. The law is one thing I feel very confident discussing. But my little area of the law would either bore you to death or send you screaming from my URL, deleting your Favorites link on your way out the door. I've mentioned my area of expertise here before but, because of The Google, I'm not going to repeat it. Let's just say that it involves a lot of paper, some drawings, and people fighting over what those papers and drawings mean.

I've been tempted to offer my legal analysis of some important and very public cases lately. Particularly when the latest abortion case came down from the Supremes. I even wrote a rather lengthy post dissecting it and discussing past precedent.

It's still sitting in my post list in draft form.

Why the paranoia, you ask?

Well, first of all there are some pretty detailed ethical rules for lawyers regarding advertising and what constitutes an advertisement, and the rules vary in every state in the U.S. I'd rather just steer clear of that stuff entirely and not worry about it. But my primary reason for the legal ban is that I don't want to get into legal pissing matches on the Internet.

Seriously, that's it. I do that at work every single day. I don't want to do that here. And if I write about abortion, or civil rights, or even employment rights, someone is going to try to draw me into a pissing match. And I have a really hard time backing down from a fight.

I was reminded of why I don't write about the law here after my post about Altoids and pregnancy hormones. I just mentioned that I was going to be on Kristin's Blog Talk Radio show and someone started taking pot shots at me. Someone who knew nothing about me, my practice, or even my real name, and, I would hazard a guess, didn't listen to Kristin's show.

I wasn't quite sure why someone writing about me bothered me so much. It wasn't the disagreement with my opinion; I could give two shits about that. It wasn't even necessarily the questioning of my legal ethics, because, come. on. Ridiculous implications are still just ridiculous implications.

No, what bothered me was the reminder that there are so many strangers reading this blog.

Now, I know that everyone who comments here regularly was once a "stranger." I would never password protect my blog because I love finding new blogs. I've discovered so many wonderful insightful bloggers out there because someone happened to stop by my blog and leave a comment, or just appeared in my Blog Log over there in the side bar.

I also know that I have friends, co-workers and family stopping by and they don't usually comment. I have my fair share of people who arrive here through bizarre Google searches about spanking and Snow White. I'm also sure that there are people who read my blog and don't comment because they either don't have blogs, or they just don't comment anywhere. That doesn't bother me. No, what gives me pause is the idea that someone would come here, read my blog, not participate, and then go blog about me, and not necessarily in a "You go, girl" kind of way. Blogging negatively about another blogger? That would just never occur to me.

So maybe someone can tell me what motivates people to do that? Because it's really making me think twice about how I want to use this blog and what I want to say here.

I'm not going to stop blogging because of a troll or two. But I would hate to get to the point where I have to change my voice here to keep my sanity.



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Of course, now that I have proclaimed my steadfast rule that Lawyer Mama Shall Never Blogeth About The Law, I will now briefly suspend that rule. Because I am the queen here and I can do what I want.

During the first 20 minutes or so of Kristin's show, there were some technical problems. Consequently, my brilliant (and I use the term brilliant loosely) legal analysis and some hilarious comments from the Queen of Shake Shake are missing from the podcast. So here's the 30 second run down of the good news and the bad news for those who may accidentally run afoul of the law in New Jersey:

1. The New Jersey shoplifting statute requires a person to act purposely, with intent to deprive a retailer of property.
2. However, being caught with said property by a law enforcement officer establishes intent.

So if a ducky accidentally falls into a stroller, there is no purposeful act and no intent and, therefore, no "shoplifting." But if someone pushing the stroller is tackled by a security officer, and a search of the stroller reveals said ducky, the person pushing the stroller is screwed. Unless there is a helpful surveillance camera film or something.

That's it. That's what all the fuss was about.

Now, I'm off to turn myself into my state bar for encouraging all of you to commit crimes.
{/sarcasm}

And seriously, if you think I'm offering you legal advice or that this has established an attorney-client relationship, you're an idiot and you shouldn't be reading my blog. If so, slap yourself in the forehead. Right now! Oh, and I'd like to sell you a bridge in Brooklyn.

Cartoon courtesy of "Microdoc News" (out of business) by way of Google Blogoscoped.

Can I Get You Some Coffee, Sir?

I was born in 1972. I grew up believing that I could do anything I wanted. My gender was never an issue. The idea that some people would think less of my abilities because I am female was foreign to me. Thankfully, my parents kept me fairly well insulated from people with throwback attitudes. I never encountered the "fear of math and science" that so many girls experience and frankly I was always taken seriously at school because of that. My mother has a degree in math and my father, degrees in physics and computer science. Maybe that had something to do with my educational self-confidence. I don't know. But I do know that, until I reached high school, no one ever even attempted to make me feel unworthy of my intellect or my dreams because of my gender. Yesterday, I had a 1950's flashback that reminded me why I was so lucky to be so insulated during my formative years.

The Partner with whom I work closely, took me to a trade association luncheon. I've been at my current firm for almost two years now and I have been slowly getting to know the local players in my little specialty area of the law. Rubber chicken lunches aren't my favorite way of networking, but I was looking forward to attending with Partner and meeting a few new people. It was a good lunch. I met some people in the industry, made some small talk, listened to an interesting speaker, and generally avoided saying anything stupid. That's a good lunch. The real fun came afterwards. As we were making our way through the crowd, Partner introduced me to several industry players. Everyone seemed pleased to meet me and, while no one ever looks forward to needing to consult their lawyers, I am sure that I will be working with some of them in the future. Then Partner introduced me to an Older Gentleman who placed himself in our path. Partner made some flattering comment about how I generally "keep him out of trouble." Polite chuckling ensued and then Older Gentleman proclaimed that he could use someone like that because he could never "remember how to work that pesky teleconference feature on his phone."

Blink. Blink.

Alrighty then.

Partner proceeded to explain that I kept him out of trouble with regards to all things legal. I could tell from the look on Partner's face that he understood that a request to me to figure out his phone would result in my possibly inserting said phone into an extremely uncomfortable area of his anatomy. We quickly beat a path to the door. On my drive back to the office I had to call my husband and rant. I explained what had happened and asked if I was overreacting. T seemed confused for a moment and then he got it. He asked incredulously, "You mean the old geezer thought you were Partner's secretary?!?" Yep. You got it, honey. He saw a youngish looking woman with this lawyer he knows at a trade association meeting, and he assumed I was the guy's secretary. Or legal assistant, if you prefer that term.

Now I realize that I'm a little over-fixated on this small incident, but stuff like this rarely happens to me and it pisses me off. While I do look young, people usually assume I'm a braniac within 2 minutes of meeting me. I've been told it's just the way that I talk and the vocabulary I use. Yes, I work in a male dominated field, I'll give the guy that. But I have never been mistaken for a secretary, especially in a professional setting. Hell, I've walked into rooms full of older men, and nothing but older white men, for meetings and court hearings for years and no one has ever assumed I was there to take the lunch orders. For a moment I was willing to give "the old geezer" a pass because of his age but then I realized that, while he may be 65-70, he's still working in the year 2007. If you are going to be in business in the 21st Century, you need to park your antiquated notions about gender roles at the door. Or this little lawyer might shove a teleconference-capable phone up your butt.

Thanks, Mom & Dad.


Folks, I'm not saying that there's anything wrong with being a secretary or that secretaries are somehow intellectually inferior to the god-like lawyers. I'm just a little pissed off right now, so bear with me. The context in which this incident happened should have told any but the most dedicated neanderthal that I was a lawyer.

I Enjoy a Good Spanking

Now that got your attention, didn't it?

I've been having a lively debate with friends about spanking. It all started with the news that an assemblywoman in California has proposed a law (scroll to the bottom) that would outlaw spanking a child under 4, making it a misdemeanor and levying a fine. I think that the intent behind the bill - decreasing violence in our society - is laudable, but come on! In most cases, there is truly a difference between a swat on the butt and a beating.

I don't spank and I decided early on that I never would. T, on the other hand, was always for it. (Get your mind out of the gutter!) T was spanked and recalls that it usually only happened when he really deserved it. Now, however, he looks at H&H and tells me he could never spank either of them. Plus, if we spanked our 2 year old, any temporary disciplinary benefit would be far outweighed by the long term results. He would turn around and start spanking Little H, the kids at daycare, and the cats. Probably with something heavy. I know without a doubt that the "we do not hit" lesson would go in one Big H ear and out the other as a result. This is where so many opinions diverge. Some people insist that spanking is the only way their child will listen and that a 2 year old can somehow figure out the difference between toddler hitting and parental discipline. I'm not sure that I buy that. Maybe Hollis is emotionally and developmentally far behind his peers, but I doubt it. I know the only lesson he would learn from a swat from Mommy or Daddy is that it's OK for him to swat too.

Whatever your views on spanking are, I think most of us can agree that a spank does not equal child abuse. If California really wants the community to take violence seriously, then start by funding social services so that social workers aren't doing drive by visits for slave wages. Give parents, rich and poor, the parenting tools and help they need when they're overwhelmed. Enforce the laws already on the books and then back them up with the money to support law enforcement and prosecution. Criminalizing spanking isn't the way to do it. Plus, can you imagine enforcing this law? How? Unless someone actually witnesses a spank or it leaves a serious mark (which would be child abuse anyway), how do we prove an illegal spank has occurred? I distinctly recall my quite clever and manipulative little brother threatening to call social services on my parents as a tool to get out of punishments. If my 6 year old brother could figure out how to push my parents' buttons like that, I can't even imagine what sort of ammunition the proposed law in California might give tots on the West Coast!

Let me know what you think. Is a swat on the butt a valuable parental disciplinary tool, a heinous form of violence, or something in between?

On an almost completely unrelated topic, while looking for details on the proposed California law I discovered that my malpractice insurance does not cover spanking a client. Good to know. I've been tempted in the past.

Conflict of Conscience

I generally try to avoid blogging about my job, other than in the most general terms. I don't want to run the risk of insulting people with whom I work and negotiate on a daily basis. But something tragic happened to the family of a lawyer with whom I work recently and it's really made me think.

On November 11, 2006, Elisabeth Kelly King Reilly, was shot during a robbery at an upscale shopping center in Virginia Beach. According to witnesses, she had handed over her belongings to the robber and both Kelly and her robber had turned to leave when the robber turned and shot Kelly in the back. Kelly died at the hospital later that evening. She was 25 years old and a newlywed - she had been married for only four months.

People in the area are in an uproar. Because of the tragic nature of the crime, because of the circumstances, and because it might have been avoided. You see, the suspect, 19 year old Christopher Hagans, had quite a criminal history and was out on bail when Kelly was murdered. The judge did not have Christopher Hagan's criminal history before him when he released him on bail. Of course lots of finger pointing is now happening, with prosecutors claiming they don't have the man hours or the money to do a background check before every hearing. I'm sure the issue will be debated in the area for years to come, but that's not really what I'm writing about. You see, Christopher Hagans, who has been arrested and charged in Kelly's murder, is almost certain to face the death penalty if convicted. The fact is that a death sentence in Virginia really is a death sentence - Virginia executes more people than any other state except Texas.

I've hinted about my conflicted feelings about the death penalty before, but I guess I'll explain a bit more now. Until my mid-20's I really had no strong feelings about the death penalty. If asked for my view, I would have told you I didn't really have one. But when I entered law school I was forced to actually think rationally about the death penalty and examine my personal views. I educated myself on the issue and my conclusion was that the death penalty was applied irrationally, irregularly, and along racial lines. What's more, you don't have to be a "liberal" to realize that it costs a lot of money to have prisoners on death row with years of automatic appeals. And I have to admit that there is something a touch barbaric about keeping a man in a cage for 20 years before finally hauling him off and executing him for a crime committed years before. Now there's no need to flame me if you disagree with my views. I know all of the arguments for and against the death penalty. Trust me, there's no need to educate me on the matter. What it comes down to, for me, is whether the risk of executing even one innocent person is worth the price, both in terms of money, revenge, and "justice." I don't think it is. Now that I have children, however, my thoughts on the death penalty have become more conflicted. Let me just say that if anyone hurt one of my children, I. would. kill. them. Or at least I would want to. How do I rationalize this feeling? I have no idea. I haven't even tried. I've never really been forced into a situation where my principles would be challenged and I hope to god I never am.

Unfortunately, a partner in my firm is now in this unthinkable situation. Kelly Reilly was his cousin. And my co-worker, we'll call him Lawyer X, is an ardent critic of the death penalty. In fact, Lawyer X frequently represents prisoners in their death row appeals pro bono. Lawyer X has also been quite outspoken about his feelings in the media, locally and nationally. Lawyer X has had clients executed and he has witnessed them first hand. I honestly don't know how he does it. Setting aside the crimes for which Lawyer X's clients have been convicted, I don't know how he puts himself personally and professionally in such a losing position. I know that I could not handle the emotional pain and the responsibility of literally holding someone's life in my hands. Lawyer X is not a criminal defense attorney, but he has convictions and he has trained himself to use his exceptional legal abilities to support those convictions. I admire that.

But in a cruel twist of fate, Lawyer X and his family are about to go through a death penalty case from the other side of the aisle. And I am afraid to ask him about it. I'm afraid to ask him if his personal convictions have changed now that a dear family member has been cruelly murdered. In another world, a parallel world where Kelly Reilly is still alive, Lawyer X might have represented Christopher Hagans. So what does Lawyer X do now? I have no idea, and I suspect that neither does he.