Month: March 2017

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.