My Kol Nidre Talk

I’m currently in my second year of a two year term as president of my synagogue, Congregation Shomrei Torah.  It is customary for the synagogue president to give the sermon or “drash” on Kol Nidre, the evening service that begins Yom Kippur, what is often called the holiest day in the Jewish year.  It has been my honor to give this talk for the past two years.  I hope that I have been able to share some words that have been meaningful to people.  

Tonight, I’m going to talk about why what happens in synagogues saves lives.

You may have a noticed, we recently had a rather large thunderstorm named Irma come ripping through the State of Florida.  I don’t enjoy life much without air conditioning or internet, so I accepted an invitation from my in-laws to join them and my wife, Barbara, at their home in Cleveland, Ohio.  I loaded up my car with our two dogs, a cat, my favorite guitar, 3 laptop computers, a box of Blue Apron meals and I headed north.  I evacuated through Bainbridge, Georgia where I made the turn west towards Montgomery, Alabama and interstate 65.  At the point where I made the turn in Bainbridge I saw the most amazing thing.  This large group people was on the side of the road with tables, grills, and cookers in what looked like a big party.  Along side the road I saw signs inviting evacuees like me to stop and have a free meal.  Looking at this, I was really in awe because Bainbridge was clearly in the path of the storm, and yet here were these people giving out free cooked meals to strangers.  How awesome is that?  As I drove along, I thought about this, and wondered why we don’t see this kind of generosity and kindness when things are going well.  Why does it take impending disaster or crisis for us to be our most altruistic selves?  Why do we give away free food to refugees during times of crisis, but debate things like food stamps and school lunches during times of plenty?

Why does it take impending disaster or crisis for us to be our most altruistic selves?

This summer I read the book “Tribe”, by combat reporter Sebastian Junger, in which he tells the story of Great Britain before and during WWII.  When it became evident to the British government that war with Germany was inevitable and that the Germans were certain to bomb the British cities, there was great concern how the population would react. Never before had a civilian population been bombed.  The government feared that once the German bombs started falling, all social order would collapse, there would be mass hysteria and psychosis,  factories would stop producing goods, and the war would be lost due to public disorder.

The interesting thing is that’s not what happened. British society didn’t fall apart. In fact, the opposite occurred.  When the bombs started falling, crime plummeted, anarchy didn’t occur. In fact, conduct in the bomb shelters was so good the police never had to be called to restore order.  The more the bombs feel the more productivity in factories increased. Most surprisingly, Psychiatrists noted that patients with long-term mental disorders suddenly improved.  Suicide rates, dramatically decreased.

These phenomena generated the interest of social scientists who continue to study it and have been observed many times since during other times of crisis.  Sociologist Emile Durkheim found in his research that when European countries went to war, suicide rates dropped and that psychiatric wards emptied. The same effect also applies to natural disasters.  Researchers found that despite news reports, crime rates in New Orleans actually decreased post-Katrina and that much of the looting was nothing more than people looking for food.  In the six months following the 9/11 attacks the suicide rate in NYC dropped by 20% and the murder rate by 40%.  As a nation, we saw no rampage shootings in the two years following 9/11.

Psychologist Charles Fritz studied the impact of disasters and the resulting improvements in mental health and he theorized that while modern society has greatly disrupted the traditional social bonds of human experience, disasters thrust us back into a more natural way of being by erasing class barriers, income barriers, and even the barriers of race and replacing them with a community of sufferers that allows individuals to experience an immensely reassuring connection to others.

One earthquake survivor gave a less scientific explanation when he said that the earthquake achieved what the law promises, but doesn’t deliver – the equality of all people.

he said that the earthquake achieved what the law promises, but doesn’t deliver – the equality of all people

What about the effects of peace, stability, and affluence? As Jews living in modern America we are enjoying one of the most prosperous and peaceful times in all of Jewish history.  As Americans, we live in what is the wealthiest society that’s ever existed in human history.  Things should be good, right?

Well, let’s look at the data.  In the United States deaths for from overdose, suicide and alcohol related causes, commonly known as the diseases of despair, have increased dramatically since1998.  For white women that number is a shocking 381% increase.  These numbers are the highest in the industrialized world and are in stark contrast to every other industrialized country where such deaths are decreasing.

The portrait of teens emerging from the data is only of a lonely disconnected generation where social life is conducted online rather than in person.

When we look at the data for our children we see some very interesting and disturbing trends.  On a positive note, psychology professor Jean Tweage, in a September 2017 article in Atlantic magazine reports that the data shows that American adolescents today are physically safer than any prior generation, are less likely to experiment with alcohol or drugs, are less sexually active, are less likely to smoke, and that teenage pregnancy rates are at historical lows. She also says that we have a generation on the verge of a mental health crisis.   She reports that rates of teenage depression have sky rocketed in recent years. Three times as many 12-14 year old girls committed suicide in 2015 as did in 2007. The portrait of teens emerging from the data is only of a lonely disconnected generation where social life is conducted online rather than in person.  Interestingly, the data stretching back to the 1930’s shows the lives of adolescents began changing in 2007 and the rate of change became exponential in 2012. What do you think happened in those years? (The iPhone was introduced in 2007, and in 2012 we reached a threshold where 50% of people had smart phones).

Modern society has perfected the art of making people feel not necessary

So, what’s the deal with us where our mental health improves in times of war and mass disasters, and deteriorates when things are good? Returning to Sebastian Junger, he postulates that “Humans don’t mind hardship, in fact they thrive on it; what they mind is not feeling necessary.  Modern society has perfected the art of making people feel not necessary.”  This same idea is found in the writing of Rabbi Harold Kushner who said: “One of the basic needs of every human being is the need to be loved, to have our wishes and feelings taken seriously, to be validated as people who matter.”

As Jews, we are a tribal people living in an age of globalism.  Globalism brings many great things into our lives, but it comes at a cost, and that cost is emotional benefits of tribal connection and the loss of struggle.  In other words, alienation.

What does all this mean for us as a Jewish community and why I am talking about this on Kol Nidre?  It’s because this is where synagogues become important and save lives.  When people find connection and community in our synagogue we help immunize them from the diseases of despair that have become epidemic in America today.

To be counted in a minyan one isn’t required to be scholarly, observant, wealthy, or good-looking

In a global world, we provide the tribal component that is missing is so many of our lives. Judaism is often referred to as a tribal religion and we see elements of this scattered throughout our rituals.  For example, when we say Kaddish or read Torah, we are commanded to have 10 adult Jews present.  To be counted in a minyan one isn’t required to be scholarly, observant, wealthy, or good-looking.  Just being a Jew is enough, nothing else is required.  Tomorrow when we recite the Al Het and confess our sins, we do this as a community, not as individuals.  We share the burden of our sin together and together we seek a pathway to redemption. I also see this concept of tribalism present in the Torah. We’re all familiar with the many lines contained in the Torah that remind us to “love our neighbor as our self”.

Congregation Shomrei is a place that is rooted in tribal connection.  When we come to this synagogue, we combat alienation and despair.  We share more than just ancient ritual, we share a tribal connection.  We do this when we come to services or events and we put away our cell phones and we share the stories of our lives, when we stand on the Bimah as I am right now and we share our Torah or our ritual skills, when we feed each other with amazing Onegs, Kiddush lunches, and Shabbat diners, when we welcome children and new parents with baby namings and bris’s, then we watch those children grow up in our religion school, we see them become Bar or Bat Mitzvahs under the watchful eye of our volunteer Bar/Bat Mitzvah tutors, when we go out into the world together when we feed the homeless at the Kerney Center, when we watch each other grow older, when we support each other in times of sickness, With our Hevre Kadisha we even care for each other after death.  This year we expanded our tribal connections when made the important choice to extend membership to non-Jewish spouses because we realized that those who share their lives with our members are an indispensable part of our community. All of these things, help us to be a part of something that is greater than ourselves. The things that happen in these walls give our lives meaning and I invite you to be a part of this experience we call synagogue life.  For a small rural lay-led synagogue run completely on volunteer labor, this Congregation is amazing and there is great beauty in our community.

Don’t separate yourself from the community

I’m told that it is customary for the synagogue president to ask you for money on Kol Nidre.  There is always a need for money in any synagogue.  To those of you how are able and have shared your financial wealth with us, I thank you. We couldn’t do it without your support, but what I hope that I have communicated to you tonight is how your support of Congregation Shomrei Torah translates into something that is much larger than mere dollars.  This really is about life in both a literal and a metaphorical sense.  For those of you who struggle financially, I want you to know you are not alone and that you matter every bit as much the big donors.  If all you have to share is your time or your stories, that’s fine.  We always need volunteers and there is always room for one more at our table.

I am going close with the words of Hillel from Piriki Avot who said: “Don’t separate yourself from the community” to which I would add, this is not just for your sake, but for mine and everyone else who is part of the Shomrei Torah Community. Our lives are at stake and you make the difference.  At Shomrei Torah we are all necessary.

Message To A Niece On Her 18th Birthday

To my wonderful niece on the occasion of your 18th Birthday:

How special it is to share a birthday with you and to reflect on how you’ve grown into the fine young adult woman who you are.  You are truly a gift in all our lives.  I regret that we cannot celebrate this occasion together.  As you mark the occasion of reaching legal adulthood, I think back on my 18th birthday so many years ago and I remember standing on the precipice of adulthood and not being sure what that meant or what lay head of me.  If I could go back, I would offer advice to that young man, but I can’t do that, so instead, I will share those thoughts with you on this special day.

Know that your life will be what you make of it.  It will never be perfect and all your dreams won’t come true.  It’s important to not be a prisoner of perfection.  Take notice of what blessings do come your way.  Happiness doesn’t come from achieving all our dreams, but in gratitude for the few that will come true and for the people with whom we get to share our lives.

Don’t be afraid.  You’re far stronger than you know.  You were built to survive and are well equipped for this life. You will sometimes fail, but failure won’t destroy you unless you let it. The lessons that have come from my failures have often been the very foundation of my future successes.  Go out into the world and explore for the simple joy of being alive. You will learn things that no classroom can deliver.  Your life is a story that only you can write.

Guard your time carefully. You only have so many days in this life. You may live to 100, but remember, not everyone gets to grow old.  Make time for the people you love.  Our parents and grandparents are mortal and time passes quickly.  Likewise, in business and love, follow the old adage to “fail quickly” and not waste time on careers and relationships that aren’t working.  Time will pass more quickly than you expect.

You will become the people with whom you surround yourself.  Seek out those who bring out the very best in you.  Be loyal to your friends and treat their friendship for the gift that it is.  Likewise, remember that your friendship has value and isn’t to be squandered on people who don’t see that.  Remember that not everyone who is nice to you is a friend, nor is everyone who argues with you, or opposes you, an enemy.  Do your best to find a mentor and then do your best to make them as proud of you as possible.  When it’s your time, mentor someone else and do your best to lift as many people as you can with you.

Forgive even when it isn’t deserved. Do this for yourself so that you can live your life as free from resentment and anger as possible. There is truth in the cliché that resentment is like drinking poison and expecting the other person to die.   Understand that forgiveness doesn’t mean you have trust an untrustworthy person or that you have to let a harmful person back into your life.  It merely means that you recognize the other people have flaws and make mistakes, and it’s about them, not you.  Don’t ever forget we all need redemption sometimes.

Lastly, live a life of balance.  Enjoy great food, but don’t be a glutton.  Be charitable, but also look out for your own interests.  Be honest, but tell every bride that she’s beautiful and every new mother that she has a beautiful baby.

With all my love,

You very proud Uncle David

Clemency Denied and a Pardon Granted: Equal Justice in America?

Florida Sends More Children To Adult Prison Than All Other States Combined

When I was a law student I worked on a clemency petition for a child who was sent to an adult prison in Florida for 9 years for her first offense.  At 12 years old, she entered prison as the youngest inmate in the Florida Department of Corrections. It is worth noting that Florida sends more children to adult prison than all other states in the country combined.  As I worked on her clemency petition I learned that in the weeks leading up to her committing the crime, robbery of her grandmother’s home, she had been examined by two psychologists who both recommended that she be given immediate in-patient care.  I also found out that the source of her distress was that she was being abandoned by her mother who had run off with a man she had met, dumping the young girl on a grandmother who didn’t want her and who communicated this to her by getting rid of the twin bed the child was sleeping on, forcing the child to sleep on the floor.  The state of Florida wasn’t there to help this child.  A prosecutor later told me there was no money for the mental health treatment she needed. Instead, the state provided her with a much more expensive 9-year prison sentence as an adult.

I argued the clemency petition before Governor Jeb Bush at the Florida State Capitol

I argued her clemency petition at the state capitol before then Governor Jeb Bush and his cabinet.  I told Jeb Bush about her history of abuse and abandonment.  How her Mother had left the country and had never once visited her in prison.  I told him about how she had earned a GED in prison and showed him her nearly flawless behavior record.  I shared with him her statement of regret.  I asked him to let her out of the prison where she had been for the past 5 years and showed him the plan for treatment and recovery that we had put in place.  As I spoke, Governor  Jeb Bush played with the pencils on his desk and rocked back and forth in his giant power chair. He didn’t seem to take much interest.  I don’t remember him asking me any questions.  When I had finished he politely thanked me for my presentation and nearly a year later sent a notice that he denied her request for clemency.

“Truthfully, I’d be happy to see many more pardons and acts of clemency coming from the President and our Governors.”

One tyrant taking care of another

As I read the newspaper reports of Donald Trump’s granting a pardon to an unrepentant former Sheriff Joe Arpaio, I think back to asking for clemency for that young woman.  Truthfully, I’d be happy to see many more pardons and acts of clemency coming from the President and our Governors.  A shift towards a more compassionate criminal justice system in our nation is long-overdue, but that’s not what this is.  Instead, it’s a move away from a more compassionate system. It’s nothing more than one tyrant protecting another.  Trump didn’t pardon Arpaio  because Arpaio made a regretted mistake or because Arpaio has shown himself to be a man deserving of mercy.  Arpaio, a man who swore an oath to uphold the law, willfully defied that law and elevated himself to the role of judge, jury, and executioner when he defied an order from a federal Judge.  Trump pardoned Arpaio as a way of weakening Judicial authority and letting everyone know that, for those who are on Trump’s team, the Courts and the laws of our nation are not a factor.

“It’s nothing more than one tyrant protecting another.”

I wish that I could say that this is an anomaly in our legal system, but it’s not.  Too many times I’ve seen the well-connected and privileged protected by the system while people like the young girl whose clemency was denied by Jeb Bush are eaten alive by the system.  It really depresses me sometimes to work in a system that so often seems unfair.  I recall the words of a cynical law professor who said that the legal system exists to maintain the class structure in all but the most extreme cases.  I fear that soon, even extreme cases of injustice will no longer find a remedy in our legal system.

A True Friend

When we were in high school, my friend, Danny, went home from school one day to find that his mother had moved. The rental house they lived in was empty, she was gone, and he was on his own. No child welfare worker came to his rescue, and no neighbors took him in.  What little he had of a childhood ended that day when he was sixteen years old.  He never returned to school and I didn’t see him again for about year until I ran into him working as a bus boy in a 24-hour diner located on the west side of Pensacola, Florida.  He told me that for a time he lived in the woods while he sorted things out and found a job.  He’s been working ever since.  Every day, he’s gone off to difficult unpleasant jobs that don’t offer a future that’s any better than the present and a paycheck that most of us couldn’t live on.

Danny isn’t simply an acquaintance. He has proven himself to be a loyal friend for so long and on so many occasions that our not being friends isn’t an option.  We’ve shared apartments, protected each other’s backs during more than one street fight, explored the streets of New Orleans together, shared adventures that will never be retold, and shared the experience of growing from boys into men, and then into middle-age.  He’s seen my very best and my very worst, knows many of my secrets, and he’s never once wavered. Saying Danny isn’t my friend would be like saying my left arm is no longer part of my body. He is my true friend.

To be poor and white is to be defective in the eyes of many

This is why I was stunned and felt betrayed when Danny told me that he voted for Donald Trump.  We don’t normally talk politics and I’d always assumed we were on the same page.  Everything I know about Danny and his life tells me that Donald Trump doesn’t reflect his values or his interests.  I asked myself how he couldn’t see that Trump offered nothing but greater hardship in his life?

Danny explained that his vote wasn’t for Trump as much as it was against more of the same. He felt injured by the Affordable Care Act because he wasn’t able to purchase health insurance, so he lost his income tax refund as a penalty.  He doesn’t closely follow politics so he wasn’t unaware that part of the difficulty he experienced trying to get health insurance was due to Governor Rick Scott’s rejection of federal assistance for people like him.  All Danny knew was he was losing his annual windfall because of something that felt out of his hands.  His employers weren’t providing insurance, and his attempts to buy health insurance were futile.  Being self-employed, I can relate. My wife has spent countless hours on the phone with our insurance agent making sure our coverage continues.

That Danny doesn’t identify with people in the progressive movement shouldn’t surprise anyone.  Working-class white men like Danny are easy targets for progressive arrogance.  To be white, male, uneducated, and poor is to be an exception to the idea of white male privilege and such people are written off lazy, morally corrupt, or engaged in some form of substance abuse.  Unworthy of either compassion or assistance, people like Danny are easily maligned, ignored, or overlooked by progressives who, at the end of the day, care more about their causes than they do the people they’re supposedly trying to save. I suspect that Danny knows this. He may be poor and he may lack formal education, but he’s not stupid, and he reads people very well.

Even if progressives took a moment to talk with Danny, I can’t imagine they’d see him as I do.  Danny speaks in what is often pejorative and politically incorrect language that instantly offends progressive sensibilities. His is the speech of people who work in warehouses, the back ends of restaurants, slaughter houses, and all the other places where backbreaking dirty work gets done. The sometimes-brash offensiveness of his language isn’t hostility or aggression as much as it’s a remaining vestige of personal power for those who live in a world where other people hold most of the power. There are times during our conversations when he gets emotional and the F-bombs start to fall during every sentence, punctuating his language and stories with a brashness that refuses to capitulate to the judgment of the world.  So many of my progressive friends explode with righteous indignation at the very first sign of anything they deem to be tinged with racism, sexism, or any of the other many “isms” claimed as their causes.  What is missed by this self-righteousness that vilifies poor working-class white men like Danny is the understanding that this is the language of the oppressed, not the language of oppression.  It’s like judging a book by its cover.  The outside might be rough and sometimes unattractive, but what’s inside the pages is pure gold.  Danny isn’t a racist, a homophobe, or any kind of hateful person.  He lives in a neighborhood and works in a workplace that are much more integrated than mine are.  His friends and neighbors come from all groups, but I don’t think he’s aware of this.  When he speaks of people, he speaks of their character, of their acts of kindness, and their ethics.  I know from experience that he doesn’t consider race, gender, or sexual orientation for a moment when he sees someone in need.  If he’s able, he helps with a full and complete heart.

The Forgotten America where people like my friend, Danny, live.

The last time I stayed over, which was a few years ago, Danny didn’t have internet or even email. The only piece of technology he had was a second-hand X-Box video game he had hooked up to his television.  Maybe it’s the lack of technology that keeps him from spending his days obsessing over 24 hour news or participating in non-productive Facebook political discussions where we seek out people who reaffirm our ideas and arguments. Based upon our conversations, I sense that Danny spends his time on concerns that are much more immediate.  Will he get overtime this week at work, or will the boss cut his hours?  How is he going to raise $1,500 to pay for the colonoscopy that his Doctor wants him to have that isn’t covered by the low value health insurance policy he’s now getting through his employer? Can he go down the street to the new company that just opened up and get a job that pays 50 cents more per hour?  With problems like these, you would think that he would fully embrace progressive ideas like better wages and better healthcare, but how much does the left really talk about such things, much less actually take action on the issues that impact Danny’s world?  Progressive activists are sure to lose his attention when they begin their tirades about renouncing privilege, avoiding cultural appropriation, and embracing intersectionality – concepts that I hardly understand after more than 7 years of higher education, concepts that all seem to heap the blame for every historical and current injustice in the world upon white males, and which seem irrelevant and ridiculous when you’re stuck on the bottom looking up.

Maybe someday those of us on the left will get over ourselves and stop reducing people to stereotypes.  Imagine the coalitions and relationships that could happen if we simply gave people the benefit of the doubt and offered them a place at the table regardless of whatever warts they might bring with them. Who might join our causes if we let go of moral and intellectual arrogance and replaced it with a sense of true kinship with our communities?  How many other Dannys are out there, sitting ignored on the side-lines?

Archie Bunker – Where Are You? America Needs You….

We need Archie Bunker to save America. Even though he was a fictional character of an uneducated, narrow-minded, right-wing, homophobic racist bigot, he spoke to us all during the turmoil of the Vietnam War, the Sexual Revolution, and Watergate, and we all loved him, or we at least loved hating him.  Growing up in the 1970’s, I remember that iconic theme song as each week my family would watch Archie clash with his hippie son-in-law, Michael, (a.k.a: “Meathead”), his feminist daughter, Gloria, his long-suffering wife, Edith, and a parade of relatives and neighbors. Through their conflicts they struggled with the social and political upheaval of the time.

At a time when many were losing faith in the institutions of American life, and many feared our nation wouldn’t survive, Archie was there every week being his loud and obnoxious self.  Despite his divisive ideas and arguments, he brought us together and carried us through in a way that no other character of the time did.  It didn’t matter if you were a liberal hippie or a Nixon Republican, you could watch Archie Bunker, and somehow it wasn’t so bad.

Archie and Edith’s chairs are now part of the collection of the Museum of American History in Washington DC

When I see the reruns of All in the Family today, I’m amazed at the complexity of the writing. The interplay between Archie and the Meathead, both of them strong-willed, self-righteous, and attempting to shout the other down, all the while missing how similar they really are, was the most radical television of its era.   I loved the irony of the Meathead trying to change Archie, often judging him, while also accepting the free room and board that allowed him to obtain the education that he so often wielded against Archie.

Perhaps it was the competing, and often opposing, characteristics within the character of Archie Bunker that endeared him to so many of us.  Despite his ignorance and prejudice, there were also facets of him that were kind, compassionate, and selfless, and his desire to be a good person could not be ignored by the viewer.  His racial and ethnic prejudices, which were a running theme of the show, weren’t simple.  He wasn’t a cross-burning Klan style bigot, his was a prejudice that was fueled by tradition more than hatred, and maintained by a fear of change. He didn’t ask for forgiveness or understanding, but there were boundaries to his prejudices that humanized him.

Archie Bunker was a complex character of good and bad, innocent and guilty.

Archie Bunker did more than just give America an opportunity to spend 30 minutes each week laughing at itself, he gave us an image of ourselves that was far from perfect, yet was worthy of redemption, and would occasionally find its best self.  He let us see each other beyond the single dimensions created by the labels that we often attach to each other.  He showed us that we’re all capable of growing, of being kind to the stranger, and that we can love each other without agreeing or “fixing” each other.

As I look at America today and the angry divisions that I fear are going to tear us apart, I wonder what happened to Archie Bunker?  Can the left and right still laugh at themselves and their own hypocrisies? Do we still have the ability to look past the labels, the differences of opinion, and see something good in each other?  How would Archie, Edith, Gloria, and Michael (a.k.a: “Meathead”) navigate the issues of our time?  Where would Archie fall on the political spectrum today?  He was a dedicated union member, which is now inconsistent with the conservative politics with which he identified a generation ago. What would Archie Bunker be like with today’s never-ending stream of fear-inducing headlines? Would Michael and Gloria have outgrown their youthful idealism?  Would the passionate arguments between Meathead and Archie end with claims of “fake news”?

I don’t know the answers to these questions, but I sure do wish Archie was still around to get us through the present day.  All In The Family was a safe place in which to look at ourselves and laugh through the discomfort of the image that the show reflected. While we don’t admit it, I think there is a little bit of Archie and the Meathead in all of us, and it’s good for us to be reminded of that.  Sadly, the 1970’s sitcom is long-gone in this era of reality television, Facebook postings, and YouTube videos. Walter Cronkite and the evening news have been replaced by Rush Limbaugh, Rachel Maddow, and a million blogs offering up dubious, yet self-validating content 24 hours a day.  We now have the power to create our own reality that reinforces our beliefs and image of ourselves – no matter how incorrect, shallow, or one dimensional that “reality” may be.  Maybe instead of unfriending each other and posting every news article that says, “I’m right and you’re wrong” we need “All In the Family” rerun parties where we stream those long-ago filmed episodes of life at 704 Hauser Street?  Maybe the magic will still be there, we’ll all share a laugh at ourselves, all be humbled just enough, and be able to find enough love and goodness in each other to carry on together.

 

American Law – A System of Justice or Oppression?

Is justice being erased in the United States?

The American legal system is in grave danger of becoming a system of oppression used by the powerful against the weak.  When our courts are no longer accessible by the average person, when there is no mechanism for payment of lawyers who enforce the rights of those without economic or political power, when funds to legal services programs are cut or abolished, when laws are written that increase the procedural burdens and burdens of proof required when the average person challenges the wealthy and powerful, when the right to trial by jury is consistently nullified by boilerplate contract language, when judges are increasingly selected for their ideology and political alliance rather than their jurisprudence and temperament, when the legislature and corporate-drawn contracts of adhesion take away the right of the average person to use our courts, when the legislature passes laws prohibiting working-class people from bringing their often modest claims as a class-action lawsuits in our courts and forces them into expensive individual arbitrations, when the legislative and executive branches of our government seek oversight of our courts and underfund our courts to a degree that renders them incapable of performing their function in our democracy, you no longer have a system of justice, but a system of oppression wherein the law is used as a weapon against the weak.

Sadly, I see all of these things happening at ever-accelerating rate, based upon a fictional claim that the system is broken and over-run with frivolous claims by greedy consumers and their lawyers.  If one looks at how our civil ccourts are actually utilized, the falsehood of these claims becomes readily apparent.  Consider that, for the week of March 3 – 12, 2017, there were 126 civil cases filed in the Leon County Florida Civil Courts. Here is the breakdown of those cases by type:

Case type                                                              Number Filed
Auto Accident                                                                  6
Debt Collection                                                               60
Residential Foreclosure                                                10
Premises Negligence                                                      1
Medical Malpractice                                                       1
Discrimination                                                                4
Products Liability                                                           1
Inmate lawsuit                                                                6
Residential Eviction                                                      20
Misc Other                                                                       9

Of the cases filed last week listed above, 48 were filed in small claims court, which is supposed to be “the people’s court” due to relaxed pleading standards deigned to allow a less formal process than Courts that deal with higher dollar or more complex cases.  Sadly, small claims courts are increasingly the place where the wealthy and powerful bring cases filed by their lawyers against poor people who in the vast majority of cases have no access to lawyers.  Of those 48 small claims cases filed last week in my local courts, 40 of those lawsuits were not claims brought by individuals, but were filed by companies who purchase defaulted debt, usually credit card debt, and were suing individuals and families.  Most interesting, of those 40 cases, 20 were filed by a single company, Midland Funding, a company who has never once been willing to go to trial in any of the cases where I’ve appeared on behalf of a consumer who they were suing.  Unfortunately, most consumers are not able to secure representation by a lawyer and so they either settle or the court enters a default judgment when the consumer fails to show up for court.

Politicians, supported by corporate donations, are quick to raise a cry of alarm that we are experiencing an epidemic of lawsuits. They say tort lawsuits are out of control, but is this claim in any way reflected in the numbers we find above?  Do we really need to limit medical malpractice lawsuits when they constitute less than one percent of all the lawsuits filed? Why do debt collection lawsuits, evictions, and foreclosures constitute 75 percent of our civil cases? Where is the epidemic really? Where is reform really needed?

I fear that justice is about to become much more elusive in our legal system. There are a number of new laws being considered at both the federal and state levels that will only increase the one-sided nature of our legal system.  Most alarming to me is the current federal legislation entitled “Fairness in Class Action Litigation Act” that is purposefully designed to kill class action lawsuits. The American Bar Association and a large number of consumer rights groups have issued statements opposing the law. Consumer claims are often unfeasible when brought individually due to the small amounts of damages that often represent huge profits for the dishonest business when spread over thousands of customers.  I understand that some people either don’t understand or are philosophically opposed to class action lawsuits, but no other mechanism is as important or as potent for maintaining integrity in our marketplace as the class action lawsuit.    Class action lawsuits are going to be even more important in an era of reduced government oversight as we see the disappearance of important consumer protection laws such as Dodd-Frank, and the restraint, if not outright elimination, of administrative watchdogs such as the Consumer Financial Protection Bureau, Environmental Protection Agency, Food and Drug Administration, and the Federal Trade Commission.

Another misguided bill is the “Lawsuit Abuse Reduction Act” which is aimed at lawyers representing individuals and families, and would require federal judges to impose sanctions in the form of costs and attorney fees against lawyers who file lawsuits that are deemed “frivolous” by the court.  Such a law would have a chilling effect upon the development of new legal theories or reinterpretation of the law.  It’s also notable that this law would not impose any risk for the lawyers on the other side who raise frivolous defenses.

Lastly, and I admit self-interest here, we are quickly reaching a point where lawyers like me who seek to protect the rights of individuals and families are going to be unable to continue our work. Ending class-actions, capping attorney fees, forced arbitration, complex and onerous pre-suit notice requirements, under-funded courts that charge excessive filing fees, making consumer lawyers vulnerable to one-sided sanctions, and the repeal of consumer protection laws will effectively put me, and many of my colleagues, out of business.  I know there are some who will celebrate getting rid of lawyers with a cheer of “kill all the lawyers”, ignorant of the roots of that statement and what an America without lawyers representing individuals and families will look like.  As for me, it’s a frightening future, one devoid of real opportunities for justice, where the masses live their lives subject to the whims and will of their corporate overlords.  We will no longer have a justice system; our legal system will be nothing more than a system that maintains the current power relationships in our society.  It will be a system of oppression.

Reality Distortion Field

They say that when Apple was developing the Macintosh computer, the engineers took the term “Reality Distortion Field” (RDF), from Star Trek, and used it to describe the ability of Steve Jobs to convince himself and others to believe almost anything and deny reality.  It was said that Jobs would routinely succeed in using charm, charisma, bravado, marketing, appeasement and persistence to overcome his team member’s denial or belief in the truth. They also said that Jobs would use the RDF to routinely adopt other people’s ideas that he would claim as his own after having rejected the very same idea when suggested by a team member a week earlier. Jobs’s reality distortion field wasn’t limited to his professional life. For example, Jobs appalled many around him when he persistently denied reality by refusing to recognize his own daughter, Lisa, despite a paternity test that showed more than a 96% change that he was the father.

The effect of RDF on the Macintosh design team was both positive and negative.  Jobs’ refusal to accept reality allowed him to get the team to push through barriers and accomplish things they thought were impossible. The Macintosh team created an amazing cutting-edge machine, and despite the insanity of the experience, most say it was one of their proudest accomplishments.  On the other hand, the Macintosh team missed development deadlines by more than a year, which gave IBM time to establish itself and Microsoft as the dominant players in the business personal computer market.  Apple has never really recovered this market loss.  This is one of the reasons that to this day people debate whether Macintosh was a commercial failure or success.  The human cost to Apple and Jobs was huge. Jobs’ behavior drove off many talented engineers and employees who quit and went to work for Apple’s competition.  Ultimately, due to his behavior, Jobs ended up out of the company that he co-founded.  Granted, he would return to help rescue the company a decade later, but it is said that he returned more mature and seasoned, and was more subdued in his leadership.

I think about this tendency to deny reality when I read the news accounts that have been coming out of the Trump White House.  I’m left wondering how similar was Steve Jobs during that time to Donald Trump today?  I read in the news that Donald Trump is now accusing President Obama of bugging his campaign office, but isn’t offering any evidence.  There was the whole fiasco regarding the crowd size at his inauguration in which his staff told reporters that they were putting forth “alternative facts”. There was the media statement last week that he believes the recent increase in anti-Semitic incidents is being done by Democrats to harm him, again with no evidence to support the statement.  There is the denial of human-induced climate change despite the overwhelming scientific evidence supporting it. Indeed, it’s been one episode of reality distortion after another since he took office just over a month ago. The question is where does this take us? Will Trump break through barriers to create a new future for America that wasn’t previously thought possible? I’m skeptical because I don’t see the passion to create in Trump that existed in Jobs.  On the other hand, will he alienate our allies and his supporters, produce little, and ultimately leave us with an expensive and deleterious outcome?

Of course, it’s not just inventors and populist politicians who are subject to reality distortion.  I think people do it all the time, albeit to much lesser degrees.  As a lawyer I spend a lot time trying to sort fact from fiction, and it’s amazing how often honest people manage to distort reality in order to avoid an unpleasant or inconvenient truth.  The important difference between most people and people such as Trump and Jobs is that when confronted with evidence to the contrary, most people accept reality.

 

You Shall Not Oppress The Stranger: My Call for Respect and Dignity for Transgendered People

I don’t know what it’s like to be a transgendered person.  I’ve always felt that my body and gender are one and the same and simply who I am.  That’s not true for everyone, which I think some people view as suspect since they’ve never experienced a disconnect between their body and gender.

I’m certainly no expert on this subject.  When the terms cis-male came up in a recent conversation I had to ask one of my friends what that meant (a cis-male is a non-transgendered male). However, I have encountered a few transgendered people and I’ve gotten some glimpses into their lives that have shaped my thoughts.

My first memory of encountering a transgendered person was almost 20 years ago when I was working nights as an Emergency Room volunteer at Tallahassee Memorial Hospital.  A biological male dressed in women’s clothing was brought in after having been physically attacked when leaving a bar.  The beating was vicious.  The police brought him in, but it was clear to me that they had no interest in finding the people who attacked this person. I remember one of the nurses making a derogatory statement about how he should have expected the beating. I remember that when the man was discharged, nobody offered him fresh clothes and nobody came to pick him up and carry him home.  He was left to walk out through the waiting room with his bandaged face and wearing the blood stained and torn dress he’d been wearing when attacked.

A short time later, a woman who was transitioning to being male came to work at the computer center where I worked during the evenings while I was in school. The way I understood the story, he was a state employee who worked as a computer programmer.  None of the state agencies wanted him and our director had offered him a position.  He wasn’t allowed to work in the cube farm with the other programmers, but was kept isolated in a small windowless former storage room.

My next encounter with a transgendered person was when I represented a young effeminate black teenager who had been expelled from the Leon County school system after getting into a conflict with his school principal over his wearing skirts to school. The young man was in foster care, living in a group home, because his mother wouldn’t stop beating him with a belt in order to stop him from being such a sissy.

When people discuss the rights and protections of transgendered people, I think of the transgendered people I’ve known, the difficulties they’ve faced, and the harms they’ve suffered.  As a result, I am absolutely certain in the moral righteousness of providing whatever legal protections are necessary to allow transgendered people to live their lives with dignity and without fear of harm or persecution.  The bathroom issue gets no traction with me.  To limit someone’s bathroom choice based upon their birth gender, rather than the gender in which they live their life, is not rooted in protection for anyone, but in a denial of the reality of transgender issues and the hardships transgendered people face.  Simply put, it’s rooted in ignorance and xenophobia.

Throughout history people have attacked those who live outside the mainstream. Those who are different are so often used as the scapegoats upon which society focuses its fears and prejudices.  Transgendered people are the proverbial strangers in the mainstream where most of us exist, which makes it sadly ironic that so many who seek to oppress and reject them claim to be religious people. Repeatedly, the Bible tells its readers not to oppress the stranger, but to protect the stranger.  Not oppressing the stranger is the most repeated Biblical commandment. It is the central message of Western religious thought. Refusing someone the right to use the bathroom consistent with their identity is oppression, even more so when one is talking about school children.  Sadly, those who hold power in the United States today have missed this fundamental lesson of religious and historical morality and are using their power to incite hatred and abuse upon the most vulnerable members of our society.