Saturday, December 26, 2009

Weekend Sports Edition: Bowl Me Over

It is that time of year. Somewhere in the last 15 years, January 1st morphed into January 7th. I refer of course to the BCS Championship game, college football's equivalent of the Super Bowl, or at least an attempt to emulate it. The BCS game is a fraud. It is nothing more than a half hearted attempt to achieve the unattainable: a determination of the best team in college football through a combination of performance and computer precision. Writers, fans, and now politicians clamor for a so called playoff system that will leave no doubt about the ultimate winner's right to claim the title of best college football team of the season. To this perennial dream, I say PHOOEY! Devising a sure fire way to bring mathematical certitude to the collegiate gridiron is a chimera, a false dream brought about by the hallucinations of fans and writers who do not appreciate the beast they are trying to tame. The beauty of college football is that its traditions and structure are not suited to an elimination tournament. To do it properly would require a playoff system that started in early November and ended in January. Regional rivalries would be diluted. Conference championships would become meaningless. The debate about the best team would become even more raucous than it is now. I can hear it now. "Why should 10-1 Florida be dissed in place of 12-0 Boise State;" and vice versa. Great teams who have a very real chance of winning it all would never get a chance to compete in the playoff system.
Instead of moving forward, I think college football should take a look in the rear view mirror. There was something glorious about waking up on New Year's Day as a kid. First there was no school, which I hated anyway. Second, my parents would not wake up until 11. At 1, I watched the Cotton Bowl. It was always Texas against someone. I remember Notre Dame playing in that game many times. Rooting for ND was mandatory for me. Not doing so was to face eternal damnation or at least it seemed that way. At 2, it was the Sugar Bowl. Always a team from the South. If the Cotton Bowl was not interesting, I would get off the floor, and manually turn the channel from 10(CBS) to 7(ABC). New Year's dinner was served around 3:30. Around 4, I would turn on the Rose Bowl. I could never understand the pageantry until about 10 years later when we bought a color TV. The Rose Bowl seemed to always feature Ohio State against USC or Stanford. I remember OJ Simpson, Woody Hayes, Jim Plunkett, and Rex Kern. By 8, it was time for the Orange Bowl. It was always a Big Eight team against Penn State, or at least it seemed that way. What I remember is that each of these games was important. The outcome had some direct or indirect ramification for who could later claim title to a mythical national championship. I also remember a few years when there were two champions: an AP one and UPI one. The uncertainty is was made it all so much fun.
Now instead of one day full of four bowl games, we get New Year's Day full of meaningless games and then the meaningful game one week later. To this pathology of certitude, I offer a dissent and say Here's To Yesterday!

Friday, December 25, 2009

Sunset Boulevard And The Tragedy of Aging Women

"There;s Nothing Wrong With Being 50, So Long As You Don't Act Like You Are 25." So said Joe Gillis to Norma Desmond in Sunset Boulevard. So I ask: is there any group more discriminated against in our society than an aging woman? I think not. While we have progressed mightily in social and economic terms to tear down the barriers of prejudice in most all areas of American society, there remains that pitiful group of aging beauty queens, wrinkled faced former princesses whose implants and facelifts have long outgrown their warranties and against whom Hollywood and Madison Avenue have turned a cold shoulder and closed the door of opportunity with a proverbial "Old Ladies Need Not Apply." And for what reason are they ignored and put down? They are old and getting older by the day. A man ages gracefully, the specks of gray hair and leather like skin are held out as assets to which younger women are attracted. Age is equated with maturity, sophistication, and, most important, money. It is an unfortunate fact of life that the one attribute that a women has to snare a man, her beauty, depreciates once she turns 40 like an ice cube in the hot August sun. While Sean Connery, Clint Eastwood, and just about any male actor continues to be hired, the same cannot be said of their female counterparts. Kathleen Turner may be the modern equivalent of Norma Desmond, except she is not dumb enough to believe otherwise.
The social ostracization will continue forever. While racial prejudice could be alleviated through economic progress and integration, the problem for older woman is that they are confronted with a force far more powerful: vanity. As long as our society treasures youth as the ultimate symbol of female beauty, the aging woman whose face is dropping to her shoulders and whose bottom resembles dried up flour, life will continue to be ever more miserable.
Of course there is a solution. Unlike Norma Desmond, refuse to play the game. I really think that a plain Jane has the advantage in the long run. South Florida is overpopulated with young twentysomethings for whom physical beauty is a measure of their self worth. And I include not only strippers and models but professionals as well. You seem them everywhere. You can also simultaneously see them twenty five years later. Go to Aventura Mall or Coral Gables on a Saturday night. The aging hotties try gamely to reach back and grab a piece of yesterday despite their made up faces and plastic filled bodies. It must be tragic indeed to look at the younger women in their midst who are competing for the affection of the same men they are and knowing, like some 20 handicapper teeing it up against Tiger Woods, they don't stand a chance. But if a woman was not born with the necessary social graces or beauty to enter the race to begin with, she is in the long run better off . She will have achieved a degree of contentment by the acquisition of a skill that will grow in value as she grows old with it. Not yielding to the temptations of vanity in one's twenties and instead pursuing a less ephemeral goal in life will yield a degree of happiness and solace in one's forties and beyond that her superficial sisters will never experience. In the long run, men get old too. They may go through their fifties popping Viagra and able to feel no different than they did in their twenties but the dark horizon is not far off. That arm candy will be replaced by a colostomy bag sooner than they think and a woman half a man's age is not going to stick around for very long when the highlight of the evening is not wetting the bed. The old geezer will forever regret dumping wife number one.
To every Norma Desmond in the world, I say do not look back but look ahead. Invest not in your body but in your mind. Make your own rules and don't play by those under which you cannot ever win.


I bought the Criterion Collection's latest offering "The Golden Age of Television" this week after reading Terry Teachout's excellent review of it in the Wall Street Journal. I cannot agree more with him that Marty is the most substantive 53 minutes of television acting you will probably ever see. The show centers around Marty, a 36 year old butcher, played by Rod Steiger, who lives in New York City with his elderly mother in the early 50's. He is plain, honest, and to others, boring. His relatives and friends pester him because he is still single. But he is an extremely shy and awkward social specimen for whom approaching women is potentially destructive to his ego, or what little of it he still has. He eventually meets a woman, Nancy Marchand of Sopranos fame, who is a mirror image of him, inside and outside. Despite the hurtful insults of his friends and family, Marty is determined to make her his wife. The show ends with Marty defiantly standing up to his so called friends and proudly announcing that he will one day marry her.
What makes the show a gem is its portrayal of the psychological toll that emotional loneliness and rejection take on the lives of people who are not socially equipped to play the dating/mating game of life. Think of Janis Ian's "At Seventeen" writ large on the TV screen in grimy black and white. Not a pretty picture. Humans have a natural need for companionship. The pursuit of love and affection is a two sided coin. The rewards are as egotistically gratifying as are the pitfalls potentially ruinous. Think how it feels to date the most beautiful woman in high school or college. You feel like a million bucks and all of your friends and enemies look upon you with envy. Now imagine desperately wanting a girlfriend and then summoning up the courage to ask her out on a date only to be told "NO." And then having it repeated ad nauseum over the years. Or being a female frumpkin and sitting around a dance hall for two hours while other more seemingly glamorous people look upon you as outcast and even mock you. The effects of this conduct can cause permanent damage to even the strongest person's psyche. What makes the phenomena even worse is that men mask it by pretending it does not exist. Thus they adopt a veneer of "toughness" and cruel humor lest their friends think that they are affected by it all. The scene where Marty calls a woman he met two weeks ago and asks her for a date is like a knife going through one's heart. You can eerily sense that he is putting his manhood and ego on the line by asking her for a date. With each word, the risks are enhanced as his pride gets closer to the edge only to be denied once again. Another poignant scene: Marty takes his new friend home after a dance. He tries to kiss her and it appears that he is getting a bit physical. But it is clearly not malicious. He just has no clue how to act. He has listened to so many other men's exaggerated and made up tales of female conquest that he probably thinks that this is how men are supposed to behave. But in the end, his real self emerges. It is one of those movies that makes you feel good and might make you think twice before ever commenting about someone's else's lack of social grace.

Thursday, December 24, 2009

Merry Christmas

I remember growing up in the early 60's. Catholic and blue collar. Christmas was always the best time of the year. A lot of presents under the tree and plenty of food. Ever since I was 7 or 8, every Christmas morning a nagging feeling of guilt or curiosity overcame me. I guess it happened when I stopped believing in Santa Claus. I always wondered what it would be like to be really poor and wake up with no presents. Especially while everyone else was celebrating. Now my own kids are older. My ex wife got smart and unloaded me a long time ago. So now I spend Christmas by myself in my office and get work done. Tonight I will watch Sunset Boulevard as I do every year, drink a bottle of wine or two, and sleep on my couch. Tomorrow, I will hide in my office, try to work, and listen to Mannheim Steamroller and think back to 1962, when it was cold outside, and I got a sled under the tree and a toy machine gun and cartridge belt. For the next week I killed more Germans than Patton and Zhukov combined. We went to church and my grandparents came over. We ate a big dinner and life just seemed a lot better than it is now. Merry Christmans to all!

Sunday, December 20, 2009

Are The Clerk's Filing Fees Unconstitutional?

The clerk of court raised the filing fees for foreclosures based on the amount of the mortgage being sued upon. I think this action violates the Florida constitution. The only way they can be justified is as a user fee. That means there has to be some relationship between the fee charged and service provided. Thus, if you want to use a municipal golf course, you pay a fee. Ditto for the Florida Turnpike, marriage certificates, etc. Governments are given a wide latitude in setting the price for such services and court will rarely quibble with the amounts. But I find the schedule of filing fees for foreclosures to be a different matter. There is absolutely no distinction for filing purposes between a residential mortgage of $100,000.0 and one for $800,00.00. Zilch. None. The procedure is exactly the same and the cost to the clerk is the same. But the clerk charges $1900 for a foreclosure where the mortgage is greater than $200,000.00 and only $401.00 if it is less than $50,000.00. On the other hand if you file a complicated case in circuit court that will take up five files and go on for five years, you pay $401.00. A bread and butter foreclosure that will take four court appearances and a sale date will cost $1900.00. I am surprised an institutional lender has not challenged these fees as a user fee without any rational relationship between the amount charged and service provided. The clerk has simply seen an opportunity to increase revenue by capitalizing on the rise in foreclosures by hitting the banks with what is a tax aimed not to cover additional costs but to raise revenue. I also think these fees are an attempt to dissuade banks from filing foreclosures and work them out in some other way. Regardless, that is not the function of the clerk. Imagine the reaction among the bar if the clerk decided to raise fees for, say, civil rights actions or med mal cases. There would be a suit filed very quickly. But since the nefarious banks are the ones taking it on the chin, no one notices.

Saturday, December 19, 2009


Billy Wilder was one of the greatest film directors ever. He had an insight into the American mind that produced some memorable movies. I spent the last three nights watching Double Indemnity, Some Like It Hot, The Apartment (a forerunner of Mad Men), and The Fortune Cookie. I did not watch Sunset Boulevard as I save my annual viewing of that movie for Christmas Eve. What made Wilder a fascinating figure was his heritage. A German Jew who emigrated to Paris in the early 1930's from Hitler’s Germany and then to America a few years later before WWII, he arrived here not able to speak a word of English. His first big hit was Double Indemnity in 1944. But what set him apart was his uncanny sense of America as told from the dark side. The film noir genre was popular in the late 40's and into the 50's. It put a heavy emphasis on cynicism and reminded audiences that human beings are by and large not necessarily nice people. I always liked the femme fatale, whether she be Lana Turner in The Postman Always Rings Twice or Barbara Stanwyck in Double Indemnity or Peggy Cummins in Gun Crazy. The American male had to realize that beneath the veneer of domestic bliss, his lovely wife waiting at home at night was just as likely thinking about putting a dagger in his back as she was mixing him a high ball. But what set Wilder apart was his ability to mix tears and laughter. Anyone watching The Apartment or The Fortune Cookie cannot help but feel sorry for the women who end up miserable and taken advantage of. I have watched Some Like It Hot about ten times and between all the laughs always end of crying inside over the way Sugar is mistreated as a sexy bimbo. Ditto with Judi West in The Fortune Cookie. Monroe’s role was a fitting metaphor for her life. Wilder took a slice of the American psyche and weaved a tale of tragicomedy that seemed to reflect something about human nature that was larger than the lives of his characters. The focus was never grand or sweeping: it was the small stuff that made it intriguing. Whether a shyster PI lawyer in The Fortune Cookie, or philandering advertising executives in The Apartment, or a conniving wife in Double Indemnity, there were never overriding social or political issues. Human beings and their inherent moral weaknesses were the focal point of the films. What I could never understand was how a foreigner could so quickly assimilate into our society and acquire such a keen appreciation of American life. His talent was not in understanding the Hollywood hotshots he probably knew best but the mind of average Americans with whom he most likely had very little contact. So here is a salute to Billy Wilder. If you have spare time on your hands for the rest of this year and your wife/kids/girlfriend are not pestering you, go Wild(er).

Sunday, December 13, 2009

The Dangers of Women

I was perusing some old books yesterday and came upon this classic essay by H.L. Mencken about the most dangerous and ill fated venture that men undertake: the pursuit of women. It reminds me of an old French saying: plus ça change, plus c'est la même chose or the more things change the more they remain the same. To every man who has made a complete fool of himself at the altar of love, here is the complete Mencken quote:
The Incomparable Buzzsaw
The chief (and perhaps the only genuine) charm of women is seldom mentioned by the orthodox professors of the sex. I refer to the charm that lies in the dangers they present. The allurement that they hold out to men is precisely the allurement that Cape Hatteras holds out to sailors: they are enormously dangerous and hence enormously fascinating. To the average man, doomed to some banal and sordid drudgery all his life long, they offer the only grand hazard that he ever encounters. Take them away and his existence would be as flat and secure as that of a milch-cow. Even to the unusual man, the adventurous man, the imaginative and romantic man, they offer the adventure of adventures. Civilization tends to dilute and cheapen all other hazards. War itself, once an enterprise stupendously thrilling, has been reduced to mere caution and calculation; already, indeed, it employs as many press-agents, letter-openers, and chautauqua orators as soldiers. On some not distant to-morrow its salient personality may be Potash, and if not Potash, then Perlmutter. But the duel of sex continues to be fought in the Berserker manner. Whoso approaches women still faces the immemorial dangers. Civilization has not made them a bit more safe than they were in Solomon's time; they are still inordinately barbarous and menacing, and hence inordinately provocative, and hence inordinately charming and romantic. . . .
The most disgusting cad in the world is the man who, on grounds of decorum and morality, avoids the game of love. He is one who puts his own ease and security above the most laudable of philanthropies. \ Women have a hard time of it in this world. They are oppressed by man-made laws, man-made social customs, masculine egoism, the delusion of masculine superiority. Their one comfort is the assurance that, even though it may be impossible to prevail against man, it is always possible to enslave and torture a man. This feeling is fostered when one makes love to them. One need not be a great beau, a seductive catch, to do it effectively. Any man is better than none. No woman is ever offended by admiration. The wife of a millionaire notes the reverent glance of a head-waiter. To withhold that devotion, to shrink poltroonishly from giving so much happiness at such small expense, to evade the business on the ground that it has hazards—this is the act of a puling and tacky fellow.

Weekend Sports Edition: Tiger Woods And Double Standards

Tiger Woods cheated on his wife multiple times. These affairs were not ones of the heart. Apparently, he was a serial womanizer with a rapacious appetite for casual sex. He is not the first professional athlete to be so afflicted and he certainly will not be the last. He will recover from this scandal and win more tournaments whether or not he gets divorced. But let us delve deeper into the sociological aspects of this story. We know what the public reaction is to Tiger's transgressions. But suppose Tiger's wife had engaged in the same conduct he did? In other words, imagine the reaction if Tiger had woken up at 2 30 am to discover that his wife had been carrying on an affair with some young buck while he was playing golf for the past few years. And then once the story became public, a slew of similarly situated men surfaced to tell their tale of having had casual sex with his wife, each story seemingly more salacious than the other. She would have been roundly denounced as a slut, a whore, and run out of this country, unable to show her face in public. Tiger would have been the object of everyone's sympathy. If you are a man, ask yourself this question: If you found out your wife had had sex with over 100 men in the past three years, including threesomes while you were at work, would you stay with her? Of course not. But when a man engages in that conduct, we roll our eyes, laugh, and wonder about how it will affect his ability to make money. Amazing.

Saturday, November 28, 2009

Weekend Sports Edition: Tiger Woods (with big time apologies to Jimmy Soul)

Ok. I am tired. I have had way too much to drink. I just read that Tiger Woods' injuries were caused by his wife. For some reason, the following song came to mind which Woods should have listened to 100 times before walking down the aisle:

If you wanna be happy for the rest of your life,
Never make a pretty woman your wife.
So from my personal point of view,
Get an ugly girl to marry you.

[Jimmy & Backup:]
If you wanna be happy for the rest of your life,
Never make a pretty woman your wife.
So from my personal point of view,
Get an ugly girl to marry you.

A pretty woman makes her husband look small.
And very often causes his downfall. (Hey!)
As soon as he marries her, then she starts,
To do the things that will break his heart.

But if you make an ugly woman your wife,
You'll be happy for the rest of your life.
An ug-a-ly woman cooks your meals on time,
An she'll always give you peace of mind.

[Jimmy & Backup:]
If you wanna be happy for the rest of your life,
Never make a pretty woman your wife.
So from my personal point of view,
Get an ugly girl to marry you.

[Instrumental break with vocalizations.]

Don't let your friends say you have no taste,
Go ahead and marry anyway. (Hey!)
Though her face is ugly, her eyes don't match,
Take it from me, she's a better catch.

[Jimmy & Backup:]
If you wanna be happy for the rest of your life,
Never make a pretty woman your wife.
So from my personal point of view,
[ Find more Lyrics on ]
Get an ugly girl to marry you.

[Man #1:] Say, man.
[Man #2:] Say, baby.
[Man #1:] I saw your wife the other day.
[Man #2:] Yeah?
[Man #1:] Yeah, and she's UGLEEE!
[Man #2:] Yeah, she's ugly, but she sure can cook, baby.
[Man #1:] Yeah, alright.

[Jimmy & Backup:]
If you wanna be happy for the rest of your life,
Never make a pretty woman your wife.
So from my personal point of view,
Get an ugly girl to marry you.

[Jimmy & (Backup):]
(If you wanna be happy for the rest of your life,)
Yeah, yeah, yeah, yeah.
(Never make a pretty woman your wife.)
Yeah, yeah, yeah, yeah-yeah yeah-yeah.
(So from my personal point of view,)
(Get an ugly girl to marry you.)

(If you wanna be happy for the rest of your life,)
Yeah, yeah, yeah, yeah.
(Never make a pretty woman your wife.)
Yeah, yeah, yeah, yeah.
(So from my personal point of view,)
(Get an ugly girl to marry you.)
Yeah, yeah, yeah, yeah.
(If you wanna be happy for the rest of your life,)
Yeah, yeah, yeah, yeah.
(Never make a pretty woman your wife.)
Yeah, yeah, yeah, yeah.
(So from my personal point of view...)

Friday, November 27, 2009

Ben Kuehne, The Aftermath

The United States of America has dismissed all criminal charges against Ben Kuehne. The case should never have been brought. It is a farce, a disgrace, and something that should deeply concern every freedom loving person in America. In short, the government indicted Mr. Kuehne for conduct that was not criminal and which they should have known was not criminal. Mr. Kuehne spent hundreds of thousands of dollars of his money defending himself against this nonsense. He had to endure personal humiliation amongst his colleagues. He is one of the finest attorneys in Miami but his name will forever be associated with overzealous prosecutorial tactics.
But what I find ironic and almost humorous is the reaction of Mr. Kuehne and his colleagues. Some have used the Thanksgiving holiday to state that Mr. Kuehne should be especially thankful. Kuehne himself claims to be thankful. Others have offered "congratulations" to Mr. Kuehne, as if this were some sort of professional milestone. But I dissent. Why should Kuehne be grateful? Being thankful has a very definite meaning. You are thankful because you have received something you do not believe you deserve. If I am walking into a building and someone holds open a door for me, I say thank you because they had no obligation to do it. Likewise, if someone buys me a dinner as a gift, I am grateful because I am the beneficiary of someone else's largesse that was not earned. But if someone pays me back money I am owed I am not grateful for they had a duty to do so. Mr. Kuehne is thankful for the support his friends gave to him but in no way should he be generally grateful other than feeling thankful that someone has stopped beating him over the head. The government's dismissal is basically an admission that they never should have brought this case to begin with. In other words, we indicted you, almost ruined your life, put you through emotional hell, embarrassed you in front of your colleagues, but now, on second thought, we realized it was all a misunderstanding. Sorry! To which I say, bullshit! Now is not time to sit around and pat each other on the back and offer congratulatory missives and talk about what a great guy Ben is and how thankful he should be in this holiday season.
Recently, Judge Gold ordered the government to pay attorney fees to a doctor who was unjustly prosecuted. Without knowing that much about the procedural vehicle to turn the tables on the government, Kuehne owes it to himself to file a motion under the Hyde Amendment to recover his attorney fees and costs because of their pursuing this case against him. I cannot believe this was done in good faith. Citizens must have redress against the government when they are victims of prosecutorial abuse. I remember an old adage: you can beat the rap but you can't beat the ride. Well, you should be able to beat the ride, especially when the government dragged you onto the train wreck against your will. It is time for Mr. Kuehne to go on the offensive. There should be a defense fund to raise money for him to fight back. I say damn the government, time to Lock and Load, at least within a legal context.

Sunday, November 22, 2009

Weekend Sports Edition: The 1966 Los Angeles Dodgers

There have been many powerhouse pennant winners whose roster was akin to the American military's performance in both Iraq wars, at least the military part of it. That is, shock and awe them with overwhelming power. The Yankee teams of the 20's, 50's, early 60's and late 90's come to mind as well as the Reds teams of 75 and 76. An honorable mention goes to the Oriole teams of 69 through 71. But what has fascinates me more is the teams who win pennants and amass impressive records on the back of one player while the rest of team is mediocre at best. The 1966 Dodgers are a perfect example of the latter. They scored 606 runs that year, 8th in the league. Their lineup was anemic. Their best hitter was third baseman Jim Lefebvre. He hit 24 home runs and batted .274. Tommie Davis was platooned in the outfield. He hit .313 with 3 home runs. The pitching was good but consider: Don Drysdale was 13-16. Claude Osteen was 17-14. Don Sutton was 12-12. They had one great reliever, Phil Regan, who went 14-1 with a 1.62 ERA. They won 95 games. How did they accomplish this feat with such a lackluster roster? Everyone over 50 knows the answer: Sandy Koufax. He won 27 games, lost 9, with an ERA of 1.73, struck out 317 batters and completed 27 games. The Dodgers that year finished 1.5 games ahead of the second place Giants. Although Koufax won the Cy Young that year, he was not the MVP. That went to Roberto Clemente. I can think of no modern day pennant winner that can owe its accomplishment more to one player than the 66 Dodgers can to Koufax. A caveat. The Dodgers lost the World Series that year to the Orioles in 4 games. They scored 2 runs in the series. Koufax pitched game two against Jim Palmer and lost 6-0, due mainly to three errors by Willie Davis, an otherwise great fielder. It was the last game Koufax ever pitched. His arm gave out. His run from 1963 through 1966 is still the most dominant ever by a pitcher. I will never forget a Casey Stengel quote after the 1963 series where the Dodgers beat the Yankees 4-0. Koufax went 25-5 that year. The former Yankee manager said that he had no problem understanding how Koufax won 25 games. What he could not figure out for the life of him was how he ever lost 5!

Can The Government Force You To Buy A New Car? (More Important, is America Finished?)

There has been much written in the blogosphere about whether there is any constitutional authority for the federal government to force its citizens to purchase a policy of health insurance. As one who is afraid of government gaining increasing power over people's lives, I do not think it is. But let us assume that that it is constitutionally permissible. What next? If the government really wants to save the auto industry, why not pass a law that requires every American to purchase a new American made vehicle in the next 6 months? If you do not make the purchase, you will be taxed the fair market value of a standard 4 door sedan. If you don't pay that, it's off to the hoosegow for you. Ditto for the housing market. Too many unemployed carpenters and tile installers? Pass a law requiring every American to put an addition on his house. The coup de grace in this scenario might be the ultimate test of the political power of the NRA. Worried about the police not being around when you get mugged or your house gets broken into? That's right. Instead of running to your phone and dialing up 911, just put your hand in your pants and pull out that government sanctioned 357 magnum and start firing away (and hope it is not your dog just wanting to come back in the house). Now the government can force you to purchase automobile insurance as a condition of driving a car, which you are free not to do. But can they force you to purchase something as a condition of citizenship? If the answer is yes, we are well on our way to an Orwellian society. For if the government has authority over your health, they have control over your life. If the government is going to pay for your diabetes or heart attack, you can bet your bottom dollar they will soon be telling you how much wine you can drink, whether or not to smoke cigars, and what kind of vegetables you need to eat. Putting this in historical perspective, I read the following ditty every week. It is as predictable as the laws of physics. Alexander Tyler made the following observation in 1787:
A democracy is always temporary in nature; it simply cannot exist as a permanent form of government. A democracy will continue to exist up until the time that voters discover that they can vote themselves generous gifts from the public treasury. From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse due to loose fiscal policy, which is always followed by a dictatorship.
The average age of the world’s greatest civilizations from the beginning of history has been about 200 years. During those 200 years, these nations always progressed through the following sequence:
From bondage to spiritual faith;
From spiritual faith to great courage;
From courage to liberty;
From liberty to abundance;
From abundance to complacency;
From complacency to apathy;
From apathy to dependence;
From dependence back into bondage.
I believe the US is in stage 7. It will take about 50 years to get to stage 8. But like a rock falling from a building, nothing can stop the trajectory. That is unfortunate. Not for us, bur for many of our children and all of our grandchildren.

Saturday, November 21, 2009

Don't Bank On It

Bill Scherer has fired the first shot in what promises to be a protracted legal war. But like many in war who unload the opening salvo, the satisfaction may be temporary and fleeting, especially when strategies were formulated without sufficient information at hand. Initial aggression is more often a result of desperation than of likelihood of success. I have not read Scherer's complaint against TD Bank. However, and only as an observation without knowing the particulars, aren't these investors a bit brazen? It has been many years since I was in law school but I do remember being taught about contributory negligence and assumption of risk. And before law school, I remember in 1969 my father told me I was the stupidest person in town for giving a man at the country club $5.00 from my caddy earnings so he could bet it at the track. My dad told me I deserved to lose the money for being such a dumb ass. In honor of my father, I will call Scherer's clients DADS as in Dumb Ass Dudes. Bascially, the DADS invested money in a scheme that any rational person would have seen as a joke. Having now lost their money, they seek to blame the bank where Rothstein deposited their money. Without having to quote Willie Sutton, the motive for this ploy is obvious. If I were TD Bank, I would sit back and let the dust settle. Find out the names of as many investors as you can who refused Rothstein's overtures, take their depositions, and lay out for the public to see the absurdity of the propositions he made and how a prudent person acted. In fact put the DADS in the spotlight and focus on their stupidity. I have a gut feeling they will have no jury sympathy. None. And I have another gut feeling that the bank did nothing wrong. It just doesn't seem logical that a bank like TD would allow itself to get roped into this. Stay tuned.

Saturday, November 14, 2009

Weekend Sports Edition: Is Don Shula Overrated?

Don Shula is a famous coach. He holds the all time record for most wins by a head coach. Longevity has its rewards, especially if you can string together 30+ years of nine and ten win seasons. He won two Super Bowls with the Dolphins. But let us take a look at his other not so notable acchievements:
1. 1964. Shula's Colts finished 12-2 and played the Cleveland Browns in Cleveland for the NFL Championship. The Colts were favored. They lost 27-0.
2. 1965. The Colts and Packers ended the season tied for the Western Division lead. The Packers beat the Colts twice in the regular season. The league rules did not recognize tie breakers, etc. so a playoff was necessary. The Packers won 13-10 in overtime. The Colts led 10-0 at halftime, Tom Matte had to play quarterback in place of an injured Unitas. Zeke Bratkowski played in place of Bart Starr. Without Unitas, the Colts should have been blown out.
3. 1967. The Colts go into the final game of the season against the Rams with an 11-0-2 record. They lose 34-10 and miss the playoffs.
3. 1969. Super Bowl. Shula's Colts were an 18 point favorite against the Jets. They lost 16-7 in a game as boring as it was significant.
4. 1972. Super Bowl. The Cowboys beat the Dolphins 27-3. The Dolphins never had a chance or should they have.
5. 1983. Super Bowl. The Dolphins lose to the Redskins 27-17.
6. 1985. Super Bowl. The Dolphins lose to the 49ers 38-16.
Shula's Dolphins also lost two AFC championship games, each to the Patriots and to the Bills. Shula's championship game record is 2-5, in addition to losing some important games that could have gotten his team to the Super Bowl. He is the only coach to ever have an undefeated season. That accomplishment has immunized him from future criticism of his record. I would rank him as one of better NFL coaches but certainly not the best.

The 1967 Baltimore Colts

Last year the Arizona Cardinals almost won the Super Bowl. Their regular season record was 9-7. Many thought it was a reflection of the warped playoff system that can catapult a mediocre team into the championship game. But what about the flip side? Have great teams been denied an opportunity to participate in the playoffs? The answer is yes. Forgotten in the annals of football anomalies are the 1967 Baltimore Colts. First some background. The NFL had four divisions: the Capital, Coastal, Century, and Central. Dallas (9-5) won the Capital, Cleveland (9-5) won the Century, Green Bay (9-4-1) won the Central. The real excitement was in the Coastal. The Colts amassed a record of 11-0-2 going into the final game against the Rams in Los Angeles who were 10-1-2. They played to a tie earlier in the season in Baltimore. Each had beaten the champion Packers in the regular season. The Rams had a very strong defense led by its Fearsome Foursome. Roman Gabriel was the quarterback. He had two excellent receivers: Bernie Casey (later a bit Hollywood actor) and Jack Snow. The Colts had Johnny Unitas who enjoyed his best season ever. He was the league's MVP that year. Don Shula coached the Colts. The Rams won, 34-10. They also won the division. The Colts finished 11-1-2, one of the best regular season records ever in the NFL. But they did not make the playoffs. The Packers beat the Rams in the first round of the playoffs, beat the Cowboys in one of the most memorable NFL games ever, and then trounced the Raiders in the second Super Bowl. It was Green Bay's last hurrah. The next season the Colts finished 13-1 but lost to the Jets in the Super Bowl III.
I remember the season well and always thought it was strange that a team could not make the playoffs despite only losing one game all year.
Next Up: Don Shula. Was he overrated?

Thursday, November 12, 2009

Show Time

Lawyers are by and large frustrated actors so let's get it out in the open. What movie best portrays the Rothstein scandal? I nominate Nightmare Alley with Tyrone Power and Nancy Walker. Rothstein is no Tyrone Power in the looks department but the movie has a certain similarity that is eerie if not on such a grand scale. Power plays a charlatan fortune teller who specializes in deceiving wealthy people into turning over their money to him.
Never having met Rothstein, I was perplexed. He reminded me of someone or something I have known for years and I could not put my finger on it until tonight only after a good cigar and one too many glasses of high quality scotch. He is the ultimate heel in the good old days of professional wrestling in the 70's and early 80's. He is a comical caricature of a stereotype. Think of him as a cross between the Grand Wizard of Wrestling, Rick Flair, and Gorgeous George. His wife is the equivalent of Miss Elizabeth, Macho Man Randy Savage's ringside paramour.
As for his wife, there was much talk on the blogs today that she has hired a lawyer. So what. If she is not the bimbo that everyone thinks, she needs to hire a PR firm, a Hollywood agent, and a good screenwriter. She has a story to tell and there are people out there who will pay big bucks to hear it all. The sooner it gets out the better for her. And admit it fellow attorneys, you will be glued to your TV sets

Monday, November 9, 2009

" A Good Lawyer Knows The Law. A Great Lawyer Knows The Judge."

Of all the publicity generated in the past week on the Rothstein matter, I am surprised and disappointed that the above quotation prominently displayed in Rothstein's office (or "inner sanctum" as his one time partners call it) has not caused an outrage in the legal community. I am about as cynical as they come and have no illusions about favoritism in any courthouse. But to advertise the role of a lawyer in such a corrupt manner is, by itself, reason for discipline by the Florida Bar. Think about it. If you are a regular attorney in this town, you probably work long hours, do your work diligently, argue your case as best you can, win some, lose some, but in the end, and despite being frustrated every day by events beyond your control, including judges who seem to have it in for you, you realize that, all other things being equal, you get a fair hearing most of the time. Now comes this schmuck who tells clients that the mark of a good lawyer is his ability to corruptly influence the judge! Imagine some client coming to your office from out of the country who as an important litigation matter to retain you on, and the first thing he sees is a framed picture of the above quote. What is he to think? And how does that reflect on the judiciary? Not good. I look at the quote as akin to amending the Ten Commandments to delete "Thou Shall Not Steal" and replace it with "If Thou Shall Steal, Make Damn Sure You Don't Get Caught."

Sunday, November 8, 2009

Stuart Rosenfeldt: The Beginning Of The End?

I do not know Stuart Rosenfeldt. He is probably a fine attorney and I hope he survives this tsunami of a crisis in his professional life. However, I cannot help but be skeptical of his public pronouncements about his ignorance of his partner's crimes or what appears to be thievery on a monumental scale. To paraphrase Shakespeare, perhaps Mr. Rosenfeldt doth protest too much. Let us look at what is known or at least a set of facts that are highly likely to be true:
1. Rothstein and Rosenfeldt met some 8 to 10 years ago when each was an attorney no different from other attorneys in South Florida. That is, they led an American middle class lifestyle with all of the accoutrements that such a status brings with it. Life was good but you worried every night about paying bills and sending your kids to college. And if one of your kids needed braces or the a/c broke in your house, you felt the pain when you wrote the check. I read in the Herald this morning that Rothstein had modest assets when he was divorced ten years ago. They worked together at Dennis Eisenger's firm in Hollywood. That firm is known for its expertise in condominium law. Eisenger is a fine lawyer and the lawyers there work hard and represent clients well.
2. The two future partners decide to form their own firm, specializing in labor and employment law. For a fledgling firm, this practice means representing plaintiffs in federal wage and hour disputes, ADA cases, age/sex/race discrimination matters, and generic employment type disputes. I doubt they represented large companies who are often the target of such suits. These entities use the mega firms that handle their other business or have insurance companies represent them through one of the large insurance defense firms in town. Again, their situation is no different than any other small firm starting a new practice. You start small and build your way up by developing a client base and serving it well.
3. According to Rosenfeldt, he was a 50% partner in the firm. Rothstein handled all of the financial issues and he, presumably, handled the legal matters.
4. The firm grew from 7 lawyers to over 70 in about six years. The firm went from an average small shop to one where the name partner became a celebrity mover and shaker, political contributor, philanthropist, and a veritable Jay Gatsby about town almost overnight. He hired ex judges, ex cons, and posted the kind of security around his office that is normally reserved for heads of state or mafia dons. He purchased five or six properties in Florida, one in Rhode Island, and one in NY. He amassed a collection of luxury cars that cost hundreds of thousands of dollars each. His lifestyle was not only ostentatious but he went out of his way to make sure everyone in town knew he was living that way. Which is fine so long as it is your money. If your name is Warren Buffett or George Soros or Rush Limbaugh or Bill Gates, you can live this way. Everyone knows you earned it the old fashioned way: hard work and luck.
5. In order for Rosenfeldt and other partners to believe that Rothstein's lifestyle was financed legitimately, they had to assume that the firm was generating sufficient revenue to support it. Accepting Rosenfeldt's statement that he was ignorant of the firm's finances, the bigger question is what was he not ignorant of? Presumably, the firm generated revenue from its legal practice. Rosenfeldt, as 50% partner, must have had intimate knowledge of all of the pending lawsuits the firm was handling and how much money each file was generating in fees. But let us delve into this a little deeper. If you are a lawyer reading this post, put yourself in Rosenfeldt's position. You are presumably drawing a salary. You work every day on client matters. You bill for your time. You know how much money you are generating for the firm. You also have a pretty good idea about what everyone else is doing. The firm must have had some type of internal review process where litigation matters and the like were settled. Rosenfeldt had to have been privy to this procedure. He cannot claim to be an associate who was called a partner, i.e., a mere employee who collected a paycheck, billed his hours, and kept to himself. He was at the firm from its inception. He knew Rothstein was no jet setter when they started the practice and he had to have known the firm's caseload and billable hours that were coming in every month. From what I have read, Rothstein was no legal genius or even a rainmaker type who had a large book of business to support a staff of 70 lawyers. With this as a backdrop, it is simply inconceivable that Rosenfeldt could look around him for the past few years and not think something was seriously amiss. If you are an attorney, how would you react if the following happened at the firm you worked? Consider:
a. Your 50/50 partner is living like a king and you are not;
b. his lifestyle is 1000 times beyond what the firm's caseload and client base could possibly support;
c. your 50/50 partner holes himself in his office in a fortress like environment; and
d. when you try to question him about the firm's finances, he brushes you off like you are a junior associate.
99% of lawyers I know would resign. It would be intriguing to know what Rosenfeldt's draw was at the firm. If he made more money than he was bringing in or even billing for, he had to have wondered why he was being rewarded so generously. Most partners at law firms know what type of business the other partners have and if they pull their weight or not. And what about his wife? You had better believe that if he was not making good money, his wife would be nagging him like white on rice. Imagine seeing the opulence thrown in your face, and knowing your husband is this man's 50/50 partner, and you "only" have one house and two cars and are wondering what you will do in retirement. I am sure she thought to herself and mentioned to him something to the effect that “hey, what is wrong here. Your partner spends a million dollars like we do dimes. Where is your share?” Rest assured, he did not tell his wife that he was ignorant of Rothstein's shenanigans. The more likely scenario was "honey, as long as the money is rolling in and we are doing way better than we would do otherwise, I am not going to say anything. If the shit hits the fan, I can claim I did not know anything. So please be quiet." And didn't the other partners talk to one another about their cases or clients? One would think they shared small talk about the giant elephant in the room: “Hey, how can it be that we have clients that justify $X amount a year in salaries and the senior partner is living as if we do 1000 times that?” Even if all of the clients went to Rothstein and he farmed the work to the other attorneys, one could easily do the math and figure out that 70 attorneys billing 100 hours a week would not put a dent in his monthly budget. This analysis is based on reasonable inferences drawn from facts that are probably true. Rothstein may very well confirm what Rosenfeldt has stated publicly but I doubt it.
The Daily Business Review and some blogs reported this week that attorney Craig Raymond at Broad & Cassel has a client who says that Rosenfeldt was present at a meeting in Rothstein's office where structured settlements were discussed. Rosenfeldt denies it. It is highly unlikely a potential investor would make this up. I wonder what Rothstein will say about this meeting? I am sure he will be asked about it. If it happened, Rosenfeldt's defense crumbles. In the next few weeks, many more witnesses will come forward with evidence. A lot is going to be learned about who knew what. Any public statements that Rosenfeldt has made that are not true and are seen as an attempt to separate him from Rothstein will only further embolden Rothstein to cooperate with the government. There is nothing that gets a suspect to rat out his friends than watching them lie about what they know and shifting the blame onto others.
I find Kendall Coffey's strategy brilliant as a short-term stopgap measure to save the firm but counter productive in the long run as far as Rosenfeldt's personal liability is concerned. Rosenfeldt's public posturing and statements will come back to haunt him. Watching Kendall on video giving a public tour of Rothstein's office made me think that it could have been a dress rehearsal for some Florida Bar attorney arguing that Rosenfeldt should be disciplined for negligently allowing himself to be part of this crime even if he did not know the details. Kendall went out of his way to separate Rothstein's office and persona from the actual practice of law that went on in the rest of the offices. Nice try and it sounded convincing for a week. But it will not withstand scrutiny. If the trappings of the office were foreign to the day-to-day operations of a normal law firm, why did the partners tolerate it? Judge Streitfeld made a comment at one of the initial court hearings where he was skeptical of Rosenfeldt's claims of ignorance. In a few weeks from now, when more information becomes known, Rosenfeldt's expensive legal strategy will come back to bite him hard.
Stay tuned.

Saturday, November 7, 2009

Rothstein: The End of the Beginning

It has been one week since the Scott Rothstein fiasco became public. The dust has settled only in that the daily revelations have slowed to a point where the people most affected by this travesty have finally digested the story and stopped making it the centerpiece of their interactions with their colleagues. But the case now moves from shock and awe to a serious analysis of what happened and why and, more important, who is to be held liable for it, criminally and civilly. Here are the areas to keep a close eye on:
1. Scott Rothstein. He will plead guilty and go to prison for a long time. The only question is whom is he taking down with him. Everyone assumes he is ratting out his friends. Don't bet on it. At least not yet. Before he even begins to be seriously debriefed, the FBI and US Attorney need to accumulate evidence against him. The fact that he wants to cooperate and has thrown himself into protective custody means nothing. Remember, the feds were tipped off only ten days ago. This case is the reverse of most investigations: the grunt work is completed before people start to flip; here you have a big target who comes to the government before they have any solid evidence that he has done anything wrong. They must first examine the evidence, talk to witnesses and victims, determine who is a target and who is a witness and the total amount of money stolen, and then once they have a handle on the scope of the fraud, get a proffer from Rothstein as to what he can offer the government that they do not already have. This process takes a long time. It will take the government a month to put their theory of the case together. During that time, Rothstein will spend his days and nights holed up somewhere drafting a proffer of what evidence he can give to the government that can implicate other people. Once he does, the government will take another month to verify the accuracy of what he is saying and if it is worth anything even if it is true. Then Rothstein will negotiate a plea, which will take a week. He will then go to court, plead guilty, and be sentenced. I may be wrong, but I doubt very much that the government will allow him to plead to anything unless they are certain they know exactly what he did. Otherwise, they run the terrible risk and huge embarrassment of cutting a deal with him now only to find out three months from now that he committed more crimes than he initially let on.
2. Charlie Crist. His political career is doomed. The pictures in Rothstein's office are devastating. While politicians always take photos with anyone who will pose and take money from just about anyone who will write a check, Crist took it a step further and made his friendship with Rothstein a very public fact. He faces a serious primary challenge from Marco Rubio and the moderates who would otherwise support him will not. Assuming he beats Rubio (I do not think he will), he must run in the general election. Any opponent will run those photos of him blowing out the birthday cake with Rothstein until the public can't tell the difference between them.
3. Broward Politicians. A wash. I hate to say it but the bar here is so low that it will take something much bigger than accepting tainted money and kissing a crook's ass to upset the public. Local races are almost immune to charges of cronyism. Let's face it. Broward County's political culture is so incestuous that Rothstein is just water off a duck's back.
4. The victims. Unlike Madoff's victims, they will get no sympathy. And deserve even less. Give Rothstein credit for not looting the pensions of widows and retirees. At this point, it appears he snagged the rich and famous who can afford to lose the money they did. And they were stupid to believe his pitch.
Well, that's it for tonight. Tomorrow, I will tackle a much more difficult topic. Stuart Rosenfeldt and the other attorneys who worked at the firm. I believe they all face serious civil liability and some possibly criminal liability as well as bar grievances. Stay tuned.