A Little History Lesson

South Carolina's embarassment of a Senator, Jim DeMint, thought that Health Care Reform would be President Obama's Waterloo.

Shockingly, DeMint was correct. That's right; Jim DeMint got something correct.

Sort of.

Health Care Reform is a modern equivalent of the Battle of Waterloo. Only, DeMint was incorrect about who was playing which role at Waterloo. DeMint assumed Obama would be playing Napoleon to DeMint's Duke of Wellington. But he got the roles reversed. Obama is the Duke of Wellington and DeMint was cast in the role of Napoleon.

But that is not the end of the story. On the afternoon of June 18, 1815, Wellington had held off Napoleon . . . gaining something of an advantage. But two armies had not yet arrived at the battlefield. The Prussian Army of Field Marshal Blucher and a French army under Marshal Grouchy were both rushing to Waterloo from the Battle of Ligny two days earlier. Whomver arrived first would decide the Battle of Waterloo and the fate of Europe. History shows us that Blucher got there first and finished off Napoleon, saving Europe from the tyranny of Napoleon.

But today it is still late afternoon of June 18. Obama has met DeMint and gained the advantage on Health Care Reform. But the battle remains in doubt as Obama and DeMint each as an ally rushing toward their aid at Waterloo. Today, the role of Blucher is being played by South Carolinian Vic Rawl and the role of Grouchy is played by Mark Rubio.

If Rubio should arrive at Waterloo, America will lose. But if Rawl makes it, America will win and Jim "Little Napoleon" DeMint can be forced into his well deserved exile on St Helena Island. (That's near Beaufort.)

Let us do all we can to help Rawl's march to Washington . . . or Waterloo or wherever this analogy goes from there.

Busy

It is inevitable. As surely as the sun will rise, someone will ask "How is business?" And the eventual answer, no matter the chit chat that takes place, is always "Busy."

I am always busy. No matter who is asking, I am always busy. The truth is, I have plenty of work to do, but when I went out on my own I made a promise to myself that I would set a schedule and stick to it. I do not see potential clients outside of my posted business hours. I am a little more lenient with rules when it comes to actual clients, but that is very dependant on the circumstances of that client.

I also make myself take time off at least three times a year: the first week of May, the first week of October, and the last two weeks of the year.

So why do I always tell people I'm busy? Because it seems successful to be busy. Successful lawyers are busy lawyers and I want people to know I am a successful lawyer. I do not know where I even learned this but it is now a habit, an automatic habit. But I am not frantically busy; I am never so busy that I do not have time to chat or listen to a story or help with a problem. And I am definitely not too busy to consider a new client matter. I may been once upon a time, but I left that life behind.

So how much business has gone elsewhere because I made it seem that there was no more room on my desk for a new file because of a casually overstated schedule? Did my response to a seemingly polite query make me seem frantic and overwhelmed and send a potential big file elsewhere? I see it all around me in colleagues who are always rushing to and fro. It seems a pandemic among lawyers.

There is a balance to be struck between the go-go lifestyle people expect of successful lawyers and a balanced yet successful lifestyle that leads to greater fulfillment. A lot of it has to do with appearing relaxed and confident. And whatever appearance we adopt tends to become truth to both ourselves and others. So slow down and relax; you passed the bar and you know what you're doing. Don't let people think you are overwhelmed or frantic (unless you are, in which case you should seek help), but instead appear relaxed and confident. You can always tell them you have too much on your plate to give them the attention they deserve once you hear what they want from you.

Oopsie.

Apparently I forgot to do something yesterday. So here is a belated Advanced Sheet #4. A little one.

The Supreme Court issued one published opinion yesterday.
James v. Anne's Inc. is an appeal from the Worker's Comp Commission. Employee was injured on the job and awarded worker's comp. Employee asked the Commission to prorate the award of their life expectancy despite employer's (Let's be clear, the employer's worker's comp carrier; the employer wouldn't care) objection. The Commission declined to prorate stating it had no authority absent employer's consent. The Circuit Court affirmed and the Supreme Court affirmed. Not much there to read but read it anyway because Justice Beatty wrote a wonderful dissent in which Justice Waller joined.

The Court of Appeals issued two published opinions.
Adams v. Rhoad is a cross-appeal from the Probate Court regarding attorney fees after an attorney was disbarred during the pendency of a will challenge. The Court of Appeals reversed the award of attorney fees to the disbarred attorney and remanded the case to the Probate Court. You can skip this one without missing anything.

Madden v. Bent Palm is an appeal of an award from the Circuit Court regarding interpretation of a contract. The Court of Appeals affirmed the Circuit Court but modified the award upward. Again, there isn't much of importance to be learned from the opinion so read it for pleasure.

Guess the Courts weren't interested in writing new law this week. Maybe next week.

WYSYW

It is an acronym for either "What You Say You Will" or "When You Say You Will." As in "Do WYSYW do WYSYW do it.

An exhausted mind trying to save a reminder for what I intend to be a blog post at some later date. For now, sleep beckons.

Yesterday Was A Holiday

That means we have a special Tuesday Edition of the Advance Sheets. The Supreme Court released three published opinions today.

State v. Navy is an appeal from General Sessions of the defendants conviction for homicide by child abuse. The Court of Appeals reversed the Trial Court on the grounds that the defendant's oral statement and 2nd and 3rd written statements given during interviews at the police station should not have been admitted. The Supreme Court affirmed the Court of Appeals with regard to the 2nd and 3rd written statements but reversed the decision regarding the oral statement. The case revolves around the issue of custody: was the defendant a suspect and was he in custody at the time he made the statements. A must read for everyone.

I love the name of the this next one. Only in South Carolina.
RV Resort and Yacht Club v. Billy Bob's Marina is an appeal from a special referee finding breach of condominium regime covenant regarding the collection of three charges collected from renters. The Court of Appeals affirmed the special referee's findings and the Supreme Court reversed. Go ahead and read it if just for a little humor.

Tobias v. Rice is an appeal from the Common Pleas Court regarding breach of contract. The Court of Appeals affirmed the trial court. The Supreme Court reversed. Read this case. It will not teach you anything new. It does not change any law or procedure. I'm not even sure what it means. Read it anyway. There is a consistent message in the three opinions released by the Court today.

Pat Robertson

Pat Robertson had some hateful words for the survivors of the disaster in Haiti.

I think we should all recall the profit Pat Robertson made from his blood diamond partnership with Osama bin Laden that led to 9/11.

Irony! Still Not Dead

Mark Rubio, who is seeking the GOP nomination for U.S. Senate in Florida, has a plan for all that ails us: Disband the government he is desperately seeking to join.



Now why would you want to join a government you think should not meet or do anything? More importantly, why should anyone vote for you?

Pointless Babble in the Pointless Courier

The editorial pages of the Post and Courier are a joke. From the editors themselves to the useless columnists they publish down to the letters from local readers that they publish, these pages are a better comedy than the funny pages. I make it a point to head straight for the editorial pages of the Pointless Courier to see what the latest completely banal and false pronouncement from the right wing demagogues will be for the day. Rarely does the Pointless Courier disappoint and this morning was no exception.

"For eight years under the Bush administration, we had no terrorist attacks on U.S. soil after 9/11."

For weeks now, this has been the conservative mantra. Only it is not true. Not only is it not true, it hasn't been true almost since the day it supposedly began: September 12, 2001. Everyone remembers September 11, but do you remember September 18, 2001. That is the day that letters began arriving at select media outlets including, NBC, ABC, CBS, the New York Post, and the National Enquirer, laden with deadly anthrax. Three weeks later, two more anthrax letters arrived. These letters weren't addressed to just any average senator; they were addressed to two powerful senators, Tom Daschle and Patrick Leahy.

5 people died as a result of these terrorist attacks and a dozen more were injured. We still don't how all of the victims received their dose of anthrax and we are not certain who carried out these attacks. But the partisan hacks in the conservative movement to destroy America don't really care about facts. But make no mistake about it, the 2001 Anthrax Attacks were terrorism on U. S. soil.

Around Christmas 2001, Richard Reid attempted to set off a shoe bomb onboard a plane bound for the United States in an attack identical to the one perpetrated by the Underpants Bomber the conservatives are wetting their pants over. Reid failed because his shoe bombs were no longer functional due to him having worn them the previous day when he was prevented from boarding an airplane. Note, that was the previous day that security was concerned about Reid.

El Al, the Israeli airline, is perhaps the most secure airline in the world. It has to be. There are many terrorists who have tried to attack El Al. On July 4, 2002, a Muslim terrorist named Hesham Mohamed Hadayet attacked the El Al ticket counter in Los Angelos International Airport killing two Israelis and wounding 4 others before an El Al security guard shot and killed him. This was a terrorist attack on U. S. soil. But do not any unAmerican conservatives to acknowledge this terrorist attack even though it happened on OUR INDEPENDENCE DAY.

A couple of months later, on September 5, 2002, a man was shot six times in Maryland in what was to become a series of shootings throughtout the DC area. On September 21, two people were shot, one died, in Alabama. Unknown at the time, but these shootings were also a part of the DC Shooting Spree. On October 5, another man was shot and killed in Maryland. The following day, 4 more people were shot in Maryland and a fifth person in DC. All died from a single shot wound fired from a long distance away. On October 7, a teenager was shot as he arrived at school; he survived the wound. But on October 9, another fatal shooting occurred at a gas station in Virginia. Again, on October 11, a person pumping gas was fatally shot in Virginia. On October 14, another person was fatally shot in Virginia. On October 19, there was another non-fatal shooting in Virginia. On October 22, a man was fatally shot on the steps of his bus in Maryland. This was to be the final shooting in this rampage as on October 24, police arrested John Allen Mohammed and Lee Malvo. It turned out that they were Islamic jihadists bent on terrorizing Americans, and for three weeks, they had done so. On American soil.

In 2006, Mohammed Reza Taheri-azar drove his SUV into 9 students at the University of North Carolina-Chapel Hill. He did so to avenge the deaths of Muslims and to honor his personal hero Mohammed Atta. This was a terrorist attack on U. S. soil.

In 2005, a bomb was set off in a mosque in Cincinnati, Ohio. No one was killed, but it was a terrorist attack.

In 2008, a conservative terrorist killed 2 people and wounded 6 others in a church in Knoxville, Tennessee.

But do not look for the Pointless Courier to correct the record anytime soon. It is not on their agenda.

And let us not forget that China punked Bush three times while he was president, which is far more dangerous to our national security than any of the attempts a group of unprofessional criminals might think of.

The Secret To Everything

Most people have the five ordinary senses: sight, smell, hearing, taste, and touch. But what do you do with them?

Some people believe there is a sixth sense, an extraordinary sense, ESP. Extra Sensory Perception. Though, there is nothing extraordinary about perception. Perception is merely how the brain processes the senses. Even if you are not aware of receiving the sense, your brain still processes it through perception.

Perception is important because it largely determines how we think about things, events, people, etc. It decides how we interact with the people and things we encounter. Normally, this process is described as a four-step method: observe, orient, decide, and act. The OODA Loop.

Observe is a bit of a misnomer; the person who first described the OODA Loop, Colonel John Boyd, was a fighter pilot so sight was the most important sense to him. But Observe still serves as an apt starting point in that it describes the receipt of a sense. So the first step is the receipt of information about your environment through a sensory input.

Orient can be a bit difficult because it is often abstract, not actually involving a physical repositioning so much as a mental repositioning. It is also difficult because it requires you to correctly position yourself within your environment, either physically or mentally or both.

Decide is, I suppose, the easiest concept to understand. You observe your environment and orient yourself within that environment, now you must decide what to do. Logic is the only way to successfully navigate this step.

To act is the final step in the process, which is easier said than done. Assuming you can overcome any fear or obstacles in your way.

And, of course, none of this is happening in a static environment. Every step you take potentially alters the environment. And your opponent is going through the same environment, altering the environment further. So the process is multiple-layered and you may have several OODA Loops going at once. The key is the speed in which you are able to complete each OODA Loop. The faster you complete the Loop, the faster you can complete each successive Loop. When you are completing your Loops faster than your opponent, you are said to be inside your opponent's OODA Loop. And that is the best place to be, because you will win everytime. In everything.

Monday. Monday! MONDAY!

Advance Sheets 2010-02. BTW, did you know that legal interest on judgments entered this year shall be 7.25%? Well, now you do. Because that came out in today's advance sheets.

Anywho, let us proceed. The Supreme Court issued a couple of opinions today. I do not think any are of the earth-shaking variety . . . but maybe you do.

Dickert v. Dickert is an appeal by both parties from the Family Court granting a divorce and dividing of the marital estate. The Court considered four issues, two of which need more study than the others. First, the Family Court included Professional Goodwill in the value of Husband's dental practice to add to the marital property for division. Goodwill is an intangible asset created by accountants and I'm not sure how the law can divide it. The Supreme Court agrees and reversed the inclusion of Goodwill. Second, did the Family Court err in equitably dividing the marital estate. After reversing the inclusion of Goodwill, obviously the trial court must reevaluate the equitable division. Notably, the Supreme Court instructed the Family Court not to take more evidence for resolving this issue. Third, Husband challenged the Family Court's award of alimony on the basis that it exceeded the average life style over the course of the 20+ year marriage and reflected only the most recent prosperous years. The Supreme Court agreed and reversed the alimony award. I think it is notable, gentlemen, that if you become prosperous in your profession, immediately get a mistress and divorce the woman who stuck by you in the lean years so as to minimize her alimony. Because that seems to be the impact of this part of the opinion. Fourth, Husband challenged the Family Court's award of attorney fees to Wife. The Supreme Court disagreed and affirmed the attorney fees as within the sound discretion of the trial court.

Edwards v. Lexington County is appeal from the Circuit Court granting summary judgment to Lexington County. The Supreme Court reversed and remanded. Plaintiff was the victim of a domestic violence incident in which her ex-boyfriend was ordered to stay away from her. He failed to so on several occasions and Lexington County arranged a hearing before the magistrate to find the ex-boyfriend in violation of the protective order. Although the Plaintiff was frightened of the ex-boyfriend and reluctant to attend the hearing at which he would be present, Lexington County persuaded her to attend but provided no security for the event. Sure enough, ex-boyfriend attacked and injured the Plaintiff and Plaintiff sued Lexington County for negligence. Lexington County claimed it owed Plaintiff no legal duty and the Circuit Court agreed, granting Lexington County summary judgment on that limited ground. The Supreme Court reversed finding that Lexington County created a legal duty under special circumstances by getting the hearing and persuading Plaintiff to appear despite her unease, i.e., a common law duty.

Richardson v. Stewart is a case involving a litigious prisoner whom the Supreme Court found to be abusing the justice system. You can skip this one and save yourself a couple of minutes of your life. And it won't be on the bar either if you are studying for that later this summer.

The Court of Appeals also issued a couple of published opinions. They are:

Johnson v. Hunter is appeal from the Circuit Court finding that a motor vehicle accident constituted a single event for the purposes of UIM coverage. Johnson was traveling on a highway with Hunter following behind him in the same direction. A third party, traveling in the opposite direction crossed the center line and, despite Johnson's efforts to avoid collision, struck Johnson. As Johnson was attempting to exit his damaged vehicle, Hunter struck his vehicle as well. Johnson claimed the events were separate and distinct events and that the trial court erred in ruling them one event under the "causation theory" though Johnson did not challenge the use of the "causation theory" and therefore it is the law of the case. The Court of Appeals affirmed the trial court, finding that the two collisions were both linked to the negligence of the third party driver. A must read for UIM coverage cases as it appears to be a case of first impression and further development is likely.

Blackbaud v. SCDOR is DOR's appeal from the Administrative Law Court decision permitting Blackbaud to take job development tax credits after the date for such credits had passed. Be careful what you ask for, the appellate court just might give it to you. Blackbaud moved here from New York and promised to create 300 jobs by October 2002 in return for tax credits. Under this development law, they could create up to 50% more jobs than promised and still get the tax credit for the excess jobs. Blackbaud created 398 by October 2002 and claimed tax credits for them. Blackbaud continued to create jobs, up to the maximum of 450 after the cut off and claimed tax credits for those jobs for the next five years. DOR claimed Blackbaud was limited to the tax credits for the 398 jobs and Blackbaud sought relief for the Admin Law Court which agreed with them. DOR appealed to the Court of Appeals claiming Blackbaud also could not claim tax credits for five years. The Court of Appeals affirmed the ALC with one modification: not only could Blackbaud claim the tax credits, but they could claim for as long as their job development contract remained in effect and not just for 5 years stating that language of the statute and Blackbaud's contract said nothing about restricting excess jobs to the cutoff - they just had to qualify by the cutoff and that nothing limited the tax credits to any set period of time. Sorry, DOR.

And that was this week. See you next Monday.

Skittish?

On NBC Nightly News, Tom Costello stated that today's non-incident at the Minneapolis Airport shows how skittish the American people are.

It would be shocking if such news programs were to do an introspective segment on their own role in driving the American people to such skittishness. Like their freak out over the Underpants Bomber.

A New Year And A New Advance Sheets Edition

Advance Sheets 01-2010! Ring in the New Year by reading today's Advance Sheets. They're quick and easy. Or just read my summary.

Just one item from the Supreme Court today: Dawkins v. Dawkins. Please read this one if you practice divorce law. It is especially addressed to the Bar. Well, the Bench too. This is an appeal from the Family Court, or rather, a reversal of the Court of Appeals decision reversing the Family Court and reinstating the Family Court decision. The Court reinforced the notion that an equitable distribution is within the discretion of the trial court and should be presumed appropriate. The Court also overruled Cooksey v. Cooksey, 280 S.C. 347 (Ct. App. 1984) regarding special equity in marital property transmuted from inherited property.

From the Court of Appeals:
State v. Evans. This is an appeal from three manslaughter convictions. At issue was whether the Defendant had been denied the right to a speedy trial while her case was pending for some twelve plus years. The Court of Appeals, limited by its standard of review, found the trial court had sufficient evidence to deny the Defendant's speedy trial motion and affirmed the convictions.* I am not sure of the broad impact of this opinion since it involved a case with some very unusual circumstances with Public Defenders getting elected Solicitor and Assistant Solicitors getting elected Solicitor in other Circuits. Very unusual circumstances.

* This opinion was written for the Court by Judge Short, for whom I served as a law clerk when he was on the Circuit Court.

DSS v. Johnson. This is an appeal of a child support judgment from the Family Court and subsequent contempt citation. The case originated in North Carolina and was certified in South Carolina after the Petitioner relocated here. Petitioner alleges that he was improperly notified of the registration of the North Carolina order in South Carolina though he admitted to knowledge of the North Carolina order. The Court of Appeals affirmed the Family Court.

McDaniel v. Kendrick is an appeal from the Circuit Court that Kendrick failed to establish adverse possession or a constructive trust. Specifically, that hostility was required for a claim of adverse possession and that fraud is required for a constructive trust. The Court of Appeals affirmed the Circuit Court.