Barrister's blog

A Distrustful Society and the Importance of "Social Trust".

At this time of the year, we look forward to fulfilling times spent with family, friends and community. However, is it also a time to reflect on values and things of importance we may have lost?

In today's CCTimes, there's a reprint of an article from the AP entitled "In God we Trust? Maybe, but not each Other". In summary the article cites recent polls that suggest that only one third of Americans say most people can be trusted. It discusses the fact that Americans are suspicious of each other in everyday encounters. The piece also stresses the importance of "social trust"; a society where people are willing to work with others for the common good. Where distrust encourages corruption, "social trust" creates opportunity and promotes economic growth.

We certainly have reason to be distrustful. On a national level, we have an astoundingly dysfunctional government; we are confronted daily with unspeakable acts of violence; a worthy attempt to provide healthcare to all Americans is derailed by incompetence, and on it goes. On a local and state level, we can also see daily examples of acts that are deserving of contempt.

Yet; there is good news everywhere and here on Cape Cod. The concept of "social trust" is seen in so many ways. We are blessed with so many non profit organizations on the Cape in human services and the arts that give so much back to their communities and the region. People like my friend Dan McCullough and so many others that assist the homeless; our many food pantries; organizations like Lower Cape Outreach and the Harwich Ecumenical Council; the Cape Cod Young Professionals (CCYP) who are trying to make the Cape a more inviting place to live and work for young people (see their Shape the Cape survey); the work of the Community Development Partnership; our local banks that give so much back to the non profit community. In Wellfleet, we are truly blessed to have so many organizations that give so much to the community. There are so many not mentioned, including the countless individuals that give of their time or contribute to these organizations, but they all have one thing in common in that they contribute to the creation of a community where selflessness and trust are paramount; or put another way, where "social trust" is created.

So; while we can certainly lament the fact that two thirds of Americans may not trust, we can also work in our own small ways to give back and create the bond of "social trust". Not only at this time of the year, but all the time. 

Have a wonderful holiday!

Bruce

Welcoming our New Lawyers

I'm very pleased to announce that Attorney Matthew Jones and Attorney Anthony Mazzeo have joined our firm.

Matt is an experienced litigator and previously practiced in Texas and Pennsylvania. Matt and his family now reside in Orleans.

Anthony's family has roots in Osterville and he is thrilled to be back home after working in Boston upon graduation from law school. You may well know Anthony from his days toiling at the family business, Palio Pizza in Hyannis.

I am proud to have these two fine lawyers working with me and our staff to service our clients.

Bruce

Justice Earl Warren and the Sports Page, Mantle/Ortiz, Volunteerism and Misc. Weekend Thoughts

1) As one views  recent events involving the Sox and state and local government, the famous quote of great Justice Earl Warren comes to mind. "I always turn to the sports page first. The sports page records people's accomplishments; the front page nothing but man's failures".

2) The inexplicable actions of the state Ethics Commission in the Dan Wolf matter will have far reaching implications. Even if regulatory changes are made, the future of a good man and qualfied candidate have been altered. In fact, a regulatory body has unilaterally deprived the populace of the chance to make their own decisions regarding the Wolf candidacy.

3) In eight years, I have had the opportunity and pleasure to lead or assist a variety of non profit organizations. During that time, I have learned how important it is for citizens with something to offer to assist such organizations as well as participate in local government. I congratulate and thank all those local champions who give time and effort to public service.

4) I grew up in the Bronx, but have been a Sox fan since 76. When I was a kid, I used to sneak under the turnstiles at Yankee Stadium to marvel at "The MicK". In fact, one of my cats is named Mickey. However, not since the Mick has one hitter instilled as much fear in a pitching staff as David Ortiz. It was a thrill to watch. What a series!

5) A shame about what is happening at the CCTimes. Of course, the world of media is changing. However, for me, I still savor newsprint in the morning and the Times gets smaller and smaller with less content. I still miss the Cape Cod Voice a great deal. Seth Rolbein and crew had a hell of a paper going and the reporting was fantastic.

Have a great weekend! Bruce

 

Dan Wolf, Charles Dickens and Government Affairs

In fact, Mr. Bumble's wife was supposedly domineering. However, when told in court that his wife acted under his direction, he stated "If the law supposes that...the law is a ass- a idiot". If you're Dan Wolf today, you might be thinking the same thing about government, both on the state and federal level.

If you were Dan, reading Saturday morning newspapers, you have much to ponder. On the one hand, you have our State Ethics Commission. Does anyone realize that the EC has, unilaterally, created a cloud of uncertainty and deprived the voting public of the opportunity to vote for a qualified candidate in the governors race? First, in August, after Mr. Wolf serves over 3 years in office, the EC issues a decision, the timeliness of which is still suspect. Then, in September, in a public hearing, they acknowledge that the decision, clearly issued carelessly and in haste, should be reconsidered and a new regulation proposed. However, over 2 weeks later, no new regulation. Of course, they also are well aware that time is working against Mr. Wolf. EC staff could have produced this product in days, if not hours. Yes; it is Mr. Wolf's decision to suspend his statewide campaign pending the resolution of this uncertainty. However, he is also well aware that fundraising is made much more difficult while this cloud lingers. The Stay of the decision so he can serve in the State Senate is not enough. The issue should be resolved with the same speed in which the initial decision issued.

When I had the pleasure of working as a Senate staffer in the late 70's and early 80's, particularly during budget sessions, we could produce legislation in hours. Our bosses told us what to do and we went to work; often throughout the night. Is this issue not important enough to instruct staff to sharpen their pencils and produce a new proposed regulation so the voters, not the EC, can decide whether or not Mr. Wolf is a worthy candidate? Really shameful for a whole host of reasons. I can't wait for the EC to take a look at Mr. Baker's equity firm's website and investigate  all the companies in which they have a financial interest to see if there is a conflict. They're going to have to hire more staff. Like Mr. Baker, there are many qualified announced candidates in the governor's race. But, like Dan Winslow ( a marvelous jurist and legislator) , Common Cause and others they should all show  their stripes and step forward and demand that this matter be resolved promptly. 

Of course, we then have the federal government. A relatively small cadre of zealots has the ability to shut down the government and hold Americans hostage while they continue to get paid for their heinous behavior. Ahhh...for the days of Ronald Reagan and Tip O'Neill! At a recent Lewis Black performance at WHAT, Black commented that in those days, Reagan and Tip would argue, get drunk, shake hands and then get something accomplished. When I worked in the Senate, the Democrats, Republicans and their staffs would sit at a budget conference table, argue, compomise and agree upon a budget. In those days, if you wanted a fire truck for a community in your district, you knew you had to compromise. However, the public's business got done. Great Republican "moderate" Senators back then; Jack Aylmer from the Cape, Bill Saltonstall for the North Shore, Jack Parker from Taunton, Jack Fitzpatrick from Stockbridge (Red Lion owner) and David Locke from Wellesley (brilliant man and  orator and a bit more conservative). Oops. I apologize for digressing. Thinking about government actually accomplishing something made me a bit giddy.

So; on the one hand we have the state EC that acted in haste and now appears unconcerned and works at a snail's pace, perhaps ever altering the electoral path of a qualified candidate. On the other hand, we have a federal government that most Americans now view with warranted hostility.

Charles Dickens would have had a field day with this current state of affairs.

 

Bruce

Why I Take Cases and "A Lawyer With a Briefcase..."

Yesterday, after reading a CCTimes article regarding a case I just filed involving alleged civil rights violations in Sandwich, a friend asked me how I decide whether or not to take on a case. He asked whether or not the fee I might earn was a determinative factor.

When discussing his family's consigliere and lawyer, Tom Hagen (Robert Duvall in the movie), Vito Corleone said "A lawyer with a briefcase can steal more than a hundred men with guns". While this comment certainly has negative connotations, I have always viewed this quote quite differently. From my perspective, it also implies that that same lawyer with a briefcase can also be a strong agent for good and for needed change.

The two cases in my 30 year career about which I am most proud are cases I worked on for years, took to trial and was never paid. One case was one I tried in 2001 in Worcester. It involved a hemophiliac that died from HIV infected factor concentrate that had been administered to him as a child in the early 1980's during the AIDS crisis. Over 10,000 hemophiliacs died in the same fashion, almost all of them infected as children. I'm not certain, but I believe that my case was the only case tried to jury in which it was alleged that physicians were negligent for administering clotting concentrate even after they knew it could be infected with the HIV virus. My expert witnesses in the case were the same doctors whose story was chronicled in the Pulitzer Prize winning book, "And the Band Played On". I worked on this case for 6 years and came to love Billy Modestino's parents, Bill and Brenda. They were courageous parents that felt this story had to be told. We knew from the outset that the case was the longest of longshots. The jury found one physician negligent, but also found that they could not determine which lot of concentrate caused the death. This is called negligence/no causation, the most feared result for a plaintiff's trial lawyer. So; we won but we lost. However, this important story was told. As Bill told my wife after closing arguments, we had given his son dignity. 

The other case was one tried in Barnstable in 2011. It involved a marvelous mother and wife, Mary Callahan, who died from a self inflicted gunshot wound after being on SSRI antidepressants. My Harvard expert felt strongly that the Cape psychiatrist that treated Mary negligently administered those antidepressants by not carefully monitoring the patient and not adequately treating a dangerous combination of depression, anxiety and suicide. I have long felt, and continue to feel, that the negligent administration and use of antidepressants in this country, particularly to children, is a serious problem. This issue alone has been the subject of many books and movies and I have handled a number of these cases, including one involving the death by hanging of a 15 year old girl. The result in the Barnstable case...the jury found the doctor negligent, but could not conclude that the negligence caused the death. Same result as the hemophilia case ten years earlier. Ironically, one defense lawyer in Boston was one of the lawyers involved in both cases.

What did both cases have in common? A case that I believed in, a family that I believed in, a story that needed to be told and the opportunity to make a statement and perhaps promote awareness and change. Trial lawyers can do this. In both cases, no fee was earned after years of work. Did I ever consider whether or not I would be paid? No; in fact if you do, you'll merely drive yourself crazy.

Now; don't get me wrong. Law firms are businesses, no different than any other business. I have employees to pay, three offices to pay for, and my wife Nancy (who runs my offices) and I have to earn a living. And, we don't want to end up like the lawyer in "A Civil Action" in bankruptcy court. So, we also diligently handle the day to day cases that every other lawyer handles; the personal injury cases, the domestic cases, the business disputes and negotiations, the start of businesses requiring counsel, the non profits needing help. These cases are as important to our clients as the two cases discussed above. But, just like some of the elder abuse and fraud cases that we handle today, I have also been blessed to be able to take on some of the high risk cases in which a lawyer can make a  difference in some small corner of the world, or have a lasting impact in the lives of a family and give them closure. That is truly an honor and a privilege. That is why I love being a trial lawyer.

So; I view Tom Hagen's briefcase as  that change agent and an opportunity to do good. Vito Corleone could not have said it better. I hope this answers my friends question.

Bruce

 

 

"Kung Fu Panda" and A Lawyers Responsibility

Have you ever gone to a lawyer and had the lawyer tell you that he or she needed to conduct a preliminary investigation of your claim before taking the case? There's a very good reason why this should and does occur.

There are multiple procedural and ethical rules guiding a lawyers behavior, but Rule 3.1 of the Supreme Judicial Court Rules of professional conduct provides that a lawyer shall not bring a claim or raise a defense that does not have a good faith basis or is not frivolous. Other rules provide that an attorneys signature on a pleading constitutes a representation that a statement is made in good faith.

Well; here comes the Panda. As reported this week in Massachusetts Lawyers Weekly, turns out that a highly regarded Massachusetts Intellectual Property lawfirm filed a case on behalf of it's client against DreamWorks Animation. Seems they claimed that DreamWorks had stolen his work by using a character he created in the popular film. Two and a half years later, the case was summarily dismissed by the federal court judge. This was after an estimated $5million in legal fees and other expenses had been racked up by both sides as reported by MLW.

Turns out that DreamWorks defense firm performed a backround investigation of the Plaintiff and discovered that he had a criminal record that included at least four assault convictions, and convictions for malicious destruction of property and cruelty to animals! The defense firm also proved that the plaintiff had traced his purported work from a "Lion King" coloring book. Apparently, during the course of the litigation, the plaintiff lawfirm accused the defense firm of unprofessional conduct, particularly for conducting the investigation!

Of course, many questions are raised by the case, including the issue of the fee agreement between the plaintiff and his lawfirm and whether or not the firm behaved the way it did because of the risk associated with the case; why it took 2.5 years to litigate the case; issues of lawyer civility and of course, the responsibility of counsel to investigate the legitimacy of his or her case.

So; the Panda won and the plaintiffs' lawyers lost; big time! When your lawyer tells you he wants to investigate your claims, now you know why.

Bruce

Bierhans Appointed Massachusetts Academy of Trial Attorneys (MATA) Regional Governor for Cape and Islands

I'm very pleased to announce that I have been appointed the Regional Governor for the Cape and Islands by the Massachusetts Academy of Trial Attorneys (MATA).

MATA is the primary bar association for plaintiff's attorneys in Massachusetts and it's mission is to provide education for the public and attorneys, and to promote the administration of justice and respect for the rule of law.

I had served as an at large Governor in the late 80's and early nineties when I was in Boston and am honored to be able to now serve the Cape and Islands.

MATA's website is www.massacademy.com

 

Bruce

Dan Wolf, Ethics, Politics and Timing

DISCLOSURE: I do not agree with Dan Wolf on every issue. But; I have known Dan for many years. He is an individual of unquestionable integrity and talent. He has raised a marvelous family. He has founded and grown an incredibly successful business. He would be successful at anything he set his sights on, including the Massachusetts Executive branch.

I believe I can speak from a base of knowledge when discussing Massachusetts government and politics. I worked as an aide in the Massachusetts Senate from 1976-1982 while attending night law school at Suffolk law from 78-82. In my first 4 years, I worked as a legislative aide for Jack Aylmer, the Republican Senator from the Cape and Islands. During those years I also worked as a staff liason for the Republican Senators  to the Senate Ways and Means Committee. Great republican Senators in those days; Jack, Jack Fitzpatrick, John Parker, Bill Saltonstall and David Locke. From 1980-82, I wrote legislation for the Senate Housing and Urban Development Committee while working for Joe Timilty from Boston. Tom Menino was an office mate.  Suffice it to say, in those 6 years, I got a hell of an education in all things political statewide.

For many reasons, the decision of the state Ethics Commission is distressing. First; why now, after Dan has served in the state Senate for over three years? In addition, it appears clear that the committee failed to distinguish between a negotiated "contract" that would provide Dan with an arguable conflict, and the reality that this is more of a license with Massport that is applied uniformly and not subject to negotiation. Finally, the ruling is harsh beyond comprehension. How can you ask a man that has served his district with honor for over 3 years and also spent 25 years building a business to decide within 30 days to step down from his seat or relinquish his interest in the company? Makes no reasonable sense.

I congratulate the Boston Globe editorial board today for actually applying the law to the facts in this case. The voters of the Commonwealth should be able to see this talented individual run his campaign. As an aside, I can't wait to see the Ethics Commission apply the same standards and scrutiny to the business interests of other potential  candidates. 

I do believe that the Commission is attempting to do the right thing. But, they got it wrong here and their timing is highly suspect. I'm hopeful the decision will be reversed and let the campaign begin.

 

Bruce

You Never Know.....

Like clockwork, after every high profile verdict in the news comes down, friends and clients generally ask what I thought about the verdict.

First, I usually tell them that I am too busy preparing for or trying my own cases  to have watched the trial events enough to responsibly comment. The rare exception was when I briefly commentated on the Worthington murder trial as I was defending the trash company in the civil wrongful death case. Invariably, I usually end my comment by telling people that "you never know what's going to happen in a courtroom and certainly never know what a jury is going to do".

Every trial lawyer that actually try's cases (rather than just telling people that they do) and tells the truth will tell you that they have won cases they thought they were going to lose and lost cases they thought they were going to win. In May, I tried a complex business case in Dedham on the defense in which the Plaintiff's hotshot Boston lawyer was so sure he was going to win he never made an offer to settle the case. The jury came back for my client on all counts in an hour and 15 minutes. Who knew?

Every good lawyer tells clients both in criminal and civil cases that courtrooms are no different than casinos. It's always a game of chance. A misstep by a witness can change the outcome of a case. A juror with a bias that was undiscovered during jury selection can change the course of deliberations. A judge may unintentionally communicate his or her opinion of a case or a witness. Judges are people too with their own strongly held opinions. A jury may favor one lawyer over another and let this cloud their assessment of the evidence. I could go on about all the factors that affect jury verdicts, but I think you get the point.

So, was the Martin verdict racially motivated? Honestly, I don't know, but I do hope that the verdict encourages productive discourse. But, I will tell you one thing. You never know.....

Bruce

"Utility Monster" at WHAT: An Important Voice Heard

Many many years ago when I was a teen actor in The Fisherman's Players on the outer cape (1968-1971 to be exact), Kevin Kelly of the Boston Globe wrote that our theater gave people "something to think about".

The WHAT mission has always been to produce edgy, innovative theater, and they have been doing it for years. However, our opening production of this season, "Utility Monster" is very special for many reasons. Nationwide, many are familiar with the story of Marina Keegan, a young author and playwright who has just graduated from Yale, and had been hired by the New Yorker. Marina was killed a year ago on her way to her family's Wellfleet home.

Through the efforts of our artistic director, Dan Lombardo, and the Keegan family, with additional assistance from Yale, we are able to bring this marvelous play, authored by Marina, to the Julie Harris stage. This work says many things, but gives voice to Marina's passion with doing something for others that would make a difference; create a personal legacy.

You'll also thrill at the marvelous cast, which includes two young local talents (and HJT alum), Lilly Flores and Ryan Rudewicz.

We are so proud to provide a forum for this marvelous work, and thank the Keegan's and everyone who has helped make this happen. I hope everyone that can will come to see this important play. It will make a difference in your lives. For details, visit our website at www.what.org.

Bruce

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