When President Donald Trump was challenged by Axios national political correspondent, Jonathan Swan, to respond to the fact that, "a thousand Americans are dying a day" due to COVID-19, the president responded as though the grim tally was perfectly acceptable, saying, "They are dying, that's true. And it is what it is." While observers were aghast at the callousness of his statement, it should not have surprised us. Trump had warned that the death toll would be high, and he had asked us months ago to get used to the idea. In late March, the White House Coronavirus Task Force had projected that 100,000 to 240,000 Americans would die from the virus. Rather than unveil an aggressive plan to tackle the spread and prevent the projected mortality figures, the president had said, "I want every American to be prepared for the hard days that lie ahead."
The New York Times saw this warning as a contradiction to Trump's stance in February and early March when he had said that "we have it totally under control" and "it's going to be just fine." The paper seemed to heave a sigh of relief that a few weeks later, "the president appeared to understand the severity of the potentially grave threat to the country." But the report's authors failed to grasp that Trump is willing to accept anything—including mass deaths—in service of his political career.
In fact, mass death appears to be part of Trump's reelection strategy as per a July 30 Vanity Fair report on the administration's strategy to contain the pandemic. The investigative piece explained that Trump's adviser and son-in-law, Jared Kushner, was part of a group of White House staffers that frequently corresponded to discuss the rapidly spreading virus. According to a public health expert who was described as being "in frequent contact with the White House's official coronavirus task force," one of the members of Kushner's team had concluded that, "because the virus had hit blue states hardest, a national plan was unnecessary and would not make sense politically." The unnamed expert told Vanity Fair, "The political folks believed that because it was going to be relegated to Democratic states, that they could blame those governors, and that would be an effective political strategy."
If it is true that Kushner embraced the idea of COVID-19 deaths as part of a political strategy for Trump's reelection, there can be no clearer evidence that the Trump presidency fits the definition of a "death cult."
But Trump's team is also deeply inept, and its macabre tactics appear to have backfired. If Kushner expected a highly contagious virus to follow his political rules and relegate itself to Democratic-run states, he was proven very wrong, very quickly with Republican-run states like Florida, Texas, Alabama, Georgia, and Arizona being among the hardest hit.
For years, the Republican Party has cast itself as a self-righteous force for morality, embraced the "pro-life" movement, and claimed to align with "Christian values." But just as Trump—arguably the most criminal of all U.S. presidents—has adopted a mantle of "law and order" with no hint of irony, the GOP as a whole has also shown time and again that its embrace of morality and law is a purely political tool. Now, as the nation grapples with mass deaths from a disease that a Republican president spectacularly and willfully failed to contain, conservative politicians appear willing to simply accept it. Their silence is deafening compared to the angry denunciations many Republican lawmakers hurled at President Barack Obama over his response to the Ebola epidemic—a crisis that resulted in a nationwide total of 11 infections and two deaths.
Ultimately it may be Trump's own base that suffers as it internalizes the president's mixed and confused messaging on ignoring social distancing guidelines, eschewing protective masks, swallowing hydroxychloroquine preventatively, and even accepting the inevitability of their own death (because "it is what it is" according to Trump). Even after more than 150,000 Americans have died from the virus, a majority of Republicans trust Trump's coronavirus comments.
When Trump loyalist and former presidential candidate Herman Cain died of COVID-19, testing positive 11 days after attending Trump's Tulsa, Oklahoma, rally without a mask on, his death did not change minds. The 74-year-old was reportedly on a ventilator during his last days, but conservatives are vehemently opposed to "politicizing" Cain's death. Right-wing commentator and talk show host Ben Shapiro slammed those who made a connection between Cain's refusal to take the virus seriously and his own infection and death. Shapiro said, "The kind of dunking on people after they die of COVID is pretty gross." Certainly, Cain did not deserve to be vilified for his own sad fate. But his death offers a cautionary tale about the dangers of the Trump death cult—a point Shapiro, of course, refused to acknowledge.
We should hardly be surprised at this acceptance of death as inevitable. For years, conservatives have responded to gun violence with angry renunciations of any links to gun proliferation or lax gun control laws, offering instead "thoughts and prayers." The one exception where Republicans express outrage is over the "death" of fetal cells inside women's bodies—indicating that the fight is less about "murder," as the anti-abortionists like to call it, than it is about controlling women's bodies. By and large, the nation's right-wing factions have, for years, wanted us to accept mass deaths and preventable mortality as a price for our "freedom." They expect the same during a pandemic.
But we do not have to all be members of the death cult. According to a new study, states where people live the longest also have the strictest environmental laws, stronger gun control and stronger protections for minorities. These are also states that tend to be run by Democrats. California, for example, which has among the most stringent protections for minorities and the environment, also has one of the highest average life expectancy rates in the United States.
COVID-19 infections and deaths are hardly inevitable, and Americans are starting to see it. A Texas woman named Stacey Nagy penned an obituary for her late husband David that has garnered widespread attention. She wrote in her local paper that, "Family members believe David's death was needless. They blame his death and the deaths of all the other innocent people, on Trump, [Gov. Greg] Abbott and all the politicians who did not take this pandemic seriously and were more concerned with their popularity and votes than lives." Nagy also blamed "the many ignorant, self-centered and selfish people who refused to follow the advice of the medical professionals, believing their 'right' not to wear a mask was more important than killing innocent people."
Perhaps the only way out of Trump's death cult is to speak out as Nagy has done.
The Washington Post, which interviewed Nagy, explained, "Feeling helpless, Stacey approached her husband's obituary as a chance to speak out about how she felt her country had failed her family." While Trump's most loyal supporters might choose death in his service, the rest of us need not be bound by their blind, cultish and suicidal ideology.
The Coronavirus Could Change American Elections…Forever
By Steven Rosenfeld
Across the country, as voting rights attorneys and election policy experts keep issuing increasingly detailed prescriptions on how 2020’s elections can continue in a pandemic, the civil servants who run elections are facing their version of a shortage of face masks and ventilators.
The first hints of a scramble over voting materials, machinery and manpower were behind-the-scenes actions following the seemingly simple decisions by ten states and territories to postpone primaries until June.
“Of course, there is nothing ‘straightforward’ about ‘simply’ postponing an election date,” noted Gavin Weise, election data manager for the U.S. Vote Foundation, which focuses on voting by Americans abroad. “All deadlines must be adjusted, materials reprinted with new dates, the workforce rescheduled, and facilities procured. In many cases, new resources are required as election administrators’ needs change — for example, to deal with the increased volume of mail ballots.”
The prospect of new multitudes voting by mail — starting with primaries (Nevada, Ohio, Rhode Island), special elections (Maryland, California) or loosening eligibility for mail-in ballots (Alabama, West Virginia, Delaware, Connecticut, New York, Virginia) or extending mail-in periods (Iowa, Alaska, Wyoming) — has led county and state election administrators to speak of coming supply shortages.
“We have already contacted the vendor about leasing a high-speed scanner. Of course, everybody is [thinking about] doing that,” said Tammy Smith, Wilson County, Tennessee, assistant election administrator. “So, again, we get to the supply chain. Everyone is asking for the same thing all across the U.S. I’m concerned, are they going to be able to provide all of us with everything we need? If we can’t get high-speed scanners, then we need people.”
“I do have some pretty serious concerns about the supply chain,” said David Stafford, Escambia County, Florida, supervisor of elections. “I know a lot of people that are on this call have been participating in other calls. It’s not like these discussions have not already begun… Is there enough paper out there? Are there enough ballot envelopes to accommodate a massive expansion?”
Smith’s and Stafford’s remarks were from a March 25 e-briefing organized by Washington’s Bipartisan Policy Center to lay out the state of elections in the short term through the fall. Participants included state and local election administrators, foundation representatives, vendors, and congressional staff. Another speaker was Stephen Trout, the state elections director from Oregon, the first state to shift to voting by mail entirely.
“The challenge is going to be on the back end, where we have manual processes that have to happen. But I think the challenge that I don’t hear a lot of people talking about is the supply lines,” Trout said. “What’s your procurement process? For me, I still don’t have authorization to spend the federal funds that were granted in December [for cybersecurity] by my legislature yet. Then it will take me four-to-five months to be able to procure anything. Those are real things. People would have to procure central count vote tally systems, paper, [and] envelopes. There’s just a lot of logistics that would have to come into place — and that’s not even talking about the policies.”
The scramble for supplies goes beyond stocking in-person polling places and absentee ballot drop-off locations with “disinfectant, gloves and hand sanitizer, as well as additional pens for marking ballots,” as Weise noted.
“The other piece is, who is going to print the ballots? Are there going to be enough envelopes? Frankly, I told my counties two weeks ago, ‘There’s going to be more people voting by mail. You need to get on the phone to your vendor today, your envelope vendor, and make sure that you’ve got enough envelopes to get through November because there’s probably going to be a rush,’” Trout said. “Some voting systems require specific paper. Is there going to be enough?”
These nuts-and-bolts concerns are not what most experts in election policy circles ponder. They are not the focus of legislative debates and lawsuits by partisans, which usually concern the laws and regulations that govern how voters are credentialed, how their ballots are validated, and how their votes are counted or rejected. Those issues, typically called policy, are from the political arena, which is not the same as civil servants doing their jobs.
“I think the biggest challenge my counties are having right now is with the social distancing in their [counting] boards that are opening the envelopes that are verifying the signatures,” Trout said. “And so we are looking… at setting up some temporary locations, either adjacent to the county election office. I had suggested maybe high school gymnasiums because the schools are all closed, and then I found out that those were the backups for the hospitals.”
Other Simmering Issues
Matthew Weil, the Bipartisan Policy Center’s elections project director, said the webinar was to help election managers and policymakers move from the speculation around what needs to happen to specifics about the likely shift to more remote voting in 2020. The supply chain issues were genuine, he said, adding that they were not the only issues facing election officials.
“They are in competition with each other over a limited number of machines, ballots, envelopes, etc.,” Weil said by email after the briefing. “Re: printing stock. Again, from some election officials, it is the case that some of the high-speed scanners may need a certain stock of paper that is milled only by a few plants.”
“The procurement timeline for states is very long,” he continued. “When the initial HAVA [Help America Vote Act cyber] security grants were made available in March 2018, many in the public were surprised when election officials told them there would be little impact on the 2018 election. That includes members of Congress. But the reality is the government procurement processes are lengthy and usually involve soliciting multiple bids. Whether it can be faster under states of emergency, I don’t know.”
Another large area of unknowns were policy changes — state laws and administrative rules — that would govern the fine print of voting by mail. During the e-briefing, Trout listed many examples of decisions that affect how voters, their ballot envelopes, and their ballots would be processed.
“Ultimately, there’s a bunch of policy decisions that have to be made,” he said. “Are you going to notify people if their signature doesn’t check? What are you going to compare the signature against? Do you have signatures in your voter file now? If not, how are you going to get them? How are you going to authenticate those voters if the signature does not match? If you decide that you are going to notify people, how are you going to do that? How long is that going to take? Is that going to impact your supplies? Is that going to impact how soon you can get results out?”
“Those are all huge policy questions that are going to have to be decided if people are trying to move to a vote-by-mail process that never have” had one, Trout continued. “Those are big policy calls that are going to have to be made. This election [was already] contentious enough before we added all of this virus stuff to it. Any time you’re changing laws in the middle of a major election, that’s just fuel for lawsuits if results end up being close. You can’t just jump into this. We have to make sure that we do it right.”
Whether those policy questions will be addressed promptly by states is another open question because most legislatures have adjourned either temporarily or for the rest of the term, Weil said.
“Most could come back, though whether they will focus on election policy concerns over other pressing needs is unknown,” he said. “Some of the changes being made now are through executive orders [by governors] and authority given to governors by states of emergency. When those states of emergency are lifted, if before November, it’s not clear whether legislatures will endorse all of the executive’s actions for November. It varies by state.”
Beyond questions of whether policies will be updated, and whether there will be supply and personnel shortages — due to the need for additional poll workers to process a surge in absentee ballots — are still other concerns. Even if election policy changes were made, election workers would need training in new procedures.
The next sign of how states are adapting to this changing landscape will likely be in June when they will conduct their presidential primaries. States like Wisconsin, which does not have a history of widespread voting by mail, will see hundreds of thousands of ballots cast that way, Charles Stewart III, the co-founder of the MIT Election Data and Science Lab, told the webinar.
“So we’re going to learn a lot over the next few weeks about the uptake among voters,” he said, adding that the big test will be next fall when a different electorate will turn out. “We need to remember that the new voters coming into the electorate in November will not be necessarily the ones who are voting in these primaries.”
Whether election managers will be able to accommodate these voters is an open question that cannot be answered now. The best that they may be able to do is proactively flag issues like supply shortages, policy gaps, and other emerging concerns, such as registering voters when state offices are closed. All these challenges are new and not occurring in a vacuum.
“Everybody is focused about how we are going to deal with the virus and all that, but the [cyber]security threat is still real. It may be more of a threat in the current environment,” Trout said. “My biggest concern as we entered 2020 was misinformation. I think that’s still my biggest concern. Given people concerned about how they’re going to get their ballot cast, questions about how vote by mail really works, I think that we are susceptible to even more disinformation…
“We all knew 2020 was going to be a crazy year, even before we had all the security and the pandemic to deal with.”
Donald Trump Is Culling His Herd
By Les Leopold
In early May, President Trump made public his fateful choice. He went all-in on reopening the economy even if it sends the virus death count into the millions. Actually, he made that choice long ago.
His logic was simple but cruel. Before the virus struck, his re-election hinged on taking credit for the robust economy he inherited. With unemployment at record lows, he hoped to hang onto just enough votes in the key battleground states of Pennsylvania, Michigan, and Wisconsin to again turn his 40 percent-plus, rock-solid base into an Electoral College majority. But Covid-19 undermined his rosy game plan by forcing a temporary economic lockdown, sending unemployment to Great Depression levels, and perhaps worse, almost instantaneously. Now the only option he sees is to let the death count soar while hoping the economy will rebound just enough so he can justify the carnage and claim credit for putting America back to work.
Trump played along with the carefully calibrated health policies put forth by Drs. Deborah Birx and Anthony Fauci as long as he could tout the relatively low death projections from the University of Washington’s Institute for Health Metrics and Evaluation (IHME). For weeks that model had predicted the death count would stall at around 50,000 to 60,000. As the number of deaths soared throughout April, anyone who could add and subtract knew the IHME projection was off — way off. Now the IHME model projects 135,000 deaths (with a potential range from 95,092 to 242,890) by the end of August, and this again is likely to err on the low side.
Before the IHME announced its recalculation, Trump’s advisors warned him that the number of deaths would climb much higher. As early as March 30th, Dr. Birx announced that she expected up to 200,000 deaths, “if we do things almost perfectly.” Knowing that the effort was going about as perfectly as his Ukrainian shakedown call, Trump basically gave up on the idea of a slow and careful reopening. On April 16th, he robotically read the Birx/Fauci step-by-step plan, which was supposed to be his plan to reopen the economy. Within hours he revealed his true intentions: He trashed his plan by tweeting his supporters to “liberate” blue state economies. Fourteen days of declining cases before a Phase 1 reopening? Screw that. Better to egg on the militias who were challenging Democratic governors with their assault weapons. Now some red states, followed by more red states, are ignoring the Birx/Fauci guidelines as they reopen willy-nilly. None of them have had fourteen days of declining cases.
But Trump also understands that the death count will hurt him politically as families all over the country experience first-hand that the virus is not a media hoax. So he must do what he loves to do — blame others. From the start, Trump downplayed the coming risks. He then passed the buck to the governors. It’s their job to stop the virus, he claimed. It’s the federal government’s job only to provide guidance and help governors find equipment and tests. “I don’t take responsibility at all” for the testing problems, he famously said on March 13th. He also feebly tried to shift the blame to the Obama administration for handing him “a broken system” for testing. But that ridiculous excuse crashed into the logic that 1) there was no test for Covid-19 during the Obama administration because there was no Covid-19, and 2) he’d been in office for three and a half years and had done nothing to fix what allegedly was broken. Two years before, he’d disbanded the office that was supposed to prepare for this exact situation.
The latest pass-the-buck mantra is to blame China for the entire debacle. He got Secretary of State Mike Pompeo to gin up a report that says Covid-19 escaped from a Wuhan lab. No matter that his intelligence agencies say that’s not the case. No matter that the intelligence agencies of our allies say that’s not the case. No matter that Dr. Fauci says the same.
As the election nears, Trump will proclaim again and again, “The Chinese did it, and I shut them down with a travel ban early on. That saved millions of lives.” And if the economy is slow to rebound, that’s China’s fault as well. It remains to be seen if China-bashing works as planned, but we should not be shocked by an “October surprise” in which U.S. warships provoke a confrontation in the China Sea to heighten the tension. Do any of us doubt that Trump is capable of moving us to the brink of war to win re-election?
Meanwhile, he’ll feed our hopes that increased testing and contact tracing (the responsibility of the governors, of course) will make going back to work feasible. He needs to get us to believe, at least for a few months, that we can safely return to our jobs (assuming they are still there) if we stay six feet apart, get our temperature checked at the door, and wash our hands repeatedly. Trump needs just enough of an economic bounce by November to help him slither through the piles of corpses.
All of this is justified by the well-traveled framework, which pits our livelihoods against our health. We hear again and again that it’s an inevitable trade-off — that to get our jobs back, we must accept more deaths. As Trump recently said, “There’ll be more death, that the virus will pass, with or without a vaccine. And I think we’re doing very well on the vaccines but, with or without a vaccine, it’s going to pass, and we’re going to be back to normal.” Trump surrogate, Chris Christie, got more to the point by saying we just have to get used to the rise in deaths if we want to save “the American way of life.”
But is this “jobs versus health” trade-off inevitable? Are other democratic nations with sophisticated economies also slaughtering their people to reopen their economies?
As of this writing, the U.S. leads the world in Covid-19 deaths — by far — with nearly 75,000. The next highest are England and Italy, with about 30,000. But the more telling statistic is the per capita death rate, which takes into account population size differences. As of May 6th, we have suffered 2,260 deaths per 100,000 residents. But Trump’s mishandling of the crisis has killed far more than Canada (1,120), Germany (830), Denmark (870), Finland (450), Norway (400), Australia (40) and New Zealand (40). We should pay close attention to Germany, a global economic power that is now systematically opening its commerce, including museums and its premier soccer league. Yet it only has about one-third the per capita deaths as the U.S. So yes, it is possible to reopen a major economy in a democratic country without letting the death rate soar. Germany can more fully reopen its economy precisely because it has kept its death rate so low.
The horrific truth is that the uncoordinated, slipshod economic reopening spurred on by Trump and his minions is likely to double our per capita deaths before Election Day. At that point, we will lead the world in deaths per capita and the total number of Covid-19 deaths. He finally will have made America number one again.
We have to face up to the chilling truth: To win reelection Trump is willfully allowing the virus to kill more and more of us, especially our most vulnerable — the old, the infirm, the poor, and the essential low-wage workers.
It’s on us if we let him get away with it.
Billionaires Are Finally Reaping What They Sow
By Thom Hartmann
The coronavirus crisis is highlighting how dysfunctional states run by Republicans are. This is a feature of the GOP rule, not a bug.
For the past 40-plus years, a group of “conservative” billionaires has been working as hard as they can to reshape our federal government from one that provides education, healthcare, housing, food, and other necessities into one that does nothing more than run the military and fight wars.
It’s time to give them what they’ve worked so hard to get.
In the process, “blue states” can continue to flower and prosper, while “red states” go back to their pre-Civil War poverty and local oligarchies. All it’ll take is a small tweak to our federal system, something that the billionaires have been pushing for since the 1970s.
First, end the federal income tax, as David Koch called for when he ran for vice president in 1980. Most billionaires don’t pay much (if anything) into it anyway; as economists have documented and the New York Times (among others) reported, in 2019 billionaires paid a lower federal tax rate than anybody — including the working poor, the bottom 50 percent of American households.
The federal income tax has become a massive annual transfer of wealth from blue states to red states. Just let it go, so the states can raise their taxes to take care of their citizens without subsidizing other states.
“Taker” Mississippi, for example, gets about 40 percent of its total budget in federal funds taken from “maker” blue states, with fully 24 percent of its residents being fed via the federal food stamp program (compared to 10 percent of Californians). If they’re so gung-ho about “states’ rights” when it comes to denying citizens the right to vote,geting a safe abortion, or putting limits on carrying assault weapons, why not give them the “right” to pay for their social programs?
Education, housing, food stamps, healthcare, and almost every other program funded by the income tax (Social Security has its separate tax and fund) can be picked up by the states. Ending the federal income tax (and leaving the federal government with tariffs and fees to pay for the military, as we did from the founding of the republic up until World War I) would give the states lots of elbow room.
Take away the 30 percent or 40 percent (for the top income brackets; or, before Reagan, even 91 percent to 70 percent on a progressive sliding scale) federal tax rate, and the states can then raise their state income taxes to those levels. Blue states, no longer having to subsidize red states via the federal government, can easily pick up all the social safety net costs and have enough money left over to build a multi-state world-class coronavirus-resistant nonprofit hospital system.
To make things easier, the blue states need to enter into a compact like several New England and Mid-Atlantic states did to control greenhouse gases, a move emulated by California, Oregon, and Washington.
For a project this large, (mainly if it includes a single-payer healthcare system), it’ll take all of the blue states: an interstate compact including the New England and Mid-Atlantic states, the West Coast states, and the few remaining blue states in the Midwest like Illinois and Minnesota. And with their “pact” to decide when and how to open their states after the coronavirus crisis ends, numerous blue states have already laid the foundation for precisely this.
America’s wealthiest billionaires, including Walmart’s Walton family, the Kochs, and Jeff Bezos, have famously worked to gut the right of workers to form unions; fine, let them have their federal “right to work for less” law. But don’t forbid the blue states from enforcing union rights; they’re the key to the prosperous middle-class America had between the 1940s and Reagan’s election in 1980, and blue states are all about prosperity.
When the red states start to collapse or see a mass exodus of their people to blue states, let them join the compact but, as with the European Union, only if they agree to the terms of the Blue State Compact: higher taxes and fully funded health, education and welfare programs, as well as high-functioning infrastructure to support modern business activity.
Pick your metric: Livability, family-friendliness, quality of healthcare, quality and availability of education, “personal freedom,” economic strength, job growth, business climate, worker rights… in nearly every case, blue states outrank red states, and often by a considerable margin.
While the variation in GDP growth between the world’s top 20 economies averages around 1.75 percent, America’s blue states have grown 3.5 percent more than red states since the Great Recession. Blue states can take care of themselves.
As part of their interstate compact, blue states could even define their regulatory programs to keep their air and water clean and their food and drugs safe, as California has done for years with auto emissions. Without their taxes being sucked away to red states, the compact can afford to create its versions of the FDA, EPA, USDA, and OSHA.
Ending the federal income tax (or dialing it back to functional meaninglessness) and creating an interstate compact like this would require a few steps. Still, they’ve been followed numerous times in American history.
The federal income tax, authorized in 1913 by the 16th Amendment, has been raised and lowered repeatedly in more than 100 years since its inception. It’s been as low as a single-digit percent and as high as 91 percent. Given that the GOP has been begging for years to cut it as much as possible, if the Democrats in Congress were to offer to cut it to 1 percent or whatever minimum would, along with tariffs and fees, provide for the core functions of government (Army, Congress, SCOTUS, White House, etc.), it’s hard to imagine that the Republicans could say no.
Similarly, although Section 10 of Article I of the Constitution says, “No state shall, without the consent of Congress, … enter into any agreement or compact with another state,” that consent hasn’t been routinely withheld when interstate compacts were formed to do everything from controlling pollution to disposing of nuclear waste. This should be a viable idea.
Speaking to a group of 450 billionaires and multimillionaires, Charles Koch, in 2015, compared their struggle to that, according to the Washington Post, of “Frederick Douglass, Susan B. Anthony and the Rev. Martin Luther King Jr.” Not to mention George Washington.
“Look at the American Revolution,” Koch said, “the anti-slavery movement, the women’s suffrage movement, the civil rights movement. All of these struck a moral chord with the American people. They all sought to overcome injustice. And we, too, are seeking to right injustices that are holding our country back.”
A staple argument among America’s conservative uber-rich, going back to their reaction to Brown v. Board of Education in the 1950s, has been that the federal government needs to stop interfering with states, and that federal regulations and subsidies are distorting markets and holding back “the magic of the free market.”
They tried their experiments with Chile and Russia, “libertarianizing” those nations’ economies, and the results were less than spectacular. Perhaps they can do better with the states they already control (via Charles Koch’s ALEC, for example) once those states are unencumbered by federal taxes, regulations, or the “stifling” effect of federal welfare and subsidy programs.
The right-wing billionaire definition of “freedom” includes the right to poverty, the right to die without healthcare, the right to be uneducated and illiterate, and the right to be hungry and homeless. Red states seem to like this since they repeatedly vote for it; we should let them have it.
Legal Battles Brewing Over Contact Tracing
By John Neocleous, NCI Law Group
COVID-19 has disrupted every aspect of human life. Global economies, healthcare, supply chains, and small businesses are just a few examples of industries crippled by the pandemic. As nations face mounting pressures to re-open their economies while containing the further spread of the virus, legal questions arise regarding the boundaries of compulsory digital contact tracing (DCT). There are many debates taking place over government abilities to infringe upon individual privacy rights in the name of public health safety. Privacy laws vary from country to country, and since most nations are launching some form of contact tracing, it warrants a look into what is legal and what is an invasion of privacy. The big question is where the individual right to privacy intersects with a country’s right to protect its citizens amidst a public health crisis.
South Korea was one of the first nations to launch a large-scale DCT in its response to COVID-19 with its “test, treat and trace” program. They built a network of more than 96 public and private rapid testing centers, conducted more than 200,000 tests on its citizens, and utilized a smartphone geotag application to monitor the movement of those who tested positive. Information was then shared with the general public so that the non-infected (or those who hadn’t yet tested) were alerted to areas where infected individuals had traveled via the app’s real-time updates.
Germany’s 375 health authorities were unable to administer a DCT program due to having some of the world’s strictest privacy laws. Instead, they launched large scale teams to work the phones, email, and even fax to trace and track infected individuals who volunteered information concerning where they have been and who they may have come into contact with. Despite the low-tech, privacy-preserving contract tracing method, Germany reports the program is effective, and other nations are looking to implement its model.
In the United States, the government has been cautious about getting involved from the federal level. It has pushed most, if not all, decisions over quarantine regulations and other social distancing measures to the discretion of each state, including the choice of how to initiate contact tracing programs. To date, the Trump administration has indicated no plans to launch a federal DCT mandate. To this end, state governments are in the early stages of creating a massive contact tracing mobile workforce. In Massachusetts, more than 45,000 people applied for some 1,400 jobs as contact tracers. New York’s government announced plans to hire as many as 10,000 contact tracers, and New Jersey plans to hire at least 1,000 to supplement the work of 900 local health officials. All three states have cited Germany as a model.
Like Germany, United States privacy laws and attached freedoms hinder its ability to launch a wide-scale DCT, but there are broad powers given to the states to implement localized DCT is they so desire. The 10th Amendment gives the states the ability to enact strict laws to protect the health and well-being of its citizens. However, it’s not that simple. Getting the American people to accept and comply with this level of potential privacy infringement would be a high hurdle to clear. Protests to state lock-down orders and fights erupting over mask-wearing are already a near-daily occurrence causing tension that doesn’t look like it will subside anytime soon.
American tech giants Google and Apple have launched contract tracing apps that are voluntary to the end-user and consider privacy laws. Both apps do not collect any location information from the user’s smartphone and are not active in the tracing of movement unless they opt-in. The app comes into play when an end-user voluntarily reports a positive COVID-19 test. At that point, the app uploads a set of rotating codes that their phones have transmitted to other users via Bluetooth for the previous two weeks. The notification informs the end-user if their phones shared proximity (pinged off the same cell tower) with somebody who has voluntarily tested positive. This allows the person to make the decision to self-quarantine or get tested themselves. The problem is data collection and storage. While those codes do not identify the infected user or their current location, every app maker needs to ensure a process that does not collect the IP addresses of those Covid-19 patients’ smartphones that identify and track infected individuals. If IP addresses are collected, they will need to protect that data from cyber-attacks or internal leaks.
Ultimately, the success of any contact tracing program is dependent on the will of the people. Health officials state that to have an effective program in place, a minimum of 70 percent of the population must participate. Perhaps if used only in times of crisis, and as a temporary measure – meaning all data is erased and purged – then the public trust would be easily attainable. On the other hand, even temporary DCT programs can open up a proverbial “constitutional can of worms” that could have negative, long-term implications to the overall safety of all nations – with or without corroborating legislation. So, at least for now, it looks like the legalities of contact tracing programs may not play out in a court of law, but the court of public opinion.
Our World Has Changed, Have you?
By Adam Warren, CEO of OpenJar Concepts and The Sentinel Group
As I write this article, we are 6 months into a pandemic and law firms everywhere are seeking out ways to keep their offices thriving and their dockets full. While we look forward, I continuously find myself looking back to March, and what happened to our industry and even our agency in a matter of weeks. What we did and continue to do in the middle of rapid change, leaves us with a lasting impression of a teachable moment. My goal for this article is to illustrate various ways to adjust in this new and volatile environment, from a local to a national approach, from the single lawyer practice to a massive firm.
What a strange time to be running a business. Practicing law right now is especially challenging. Just a couple of months ago I recall a friend saying that he just completed his first zoom trial and he had no idea how it went. He was unable to see the reactions of the judge and jury and was left unsure of his connection with either of them. Dockets have been delayed and single event practice areas such as Motor Vehicle Accident, saw declines in their case potential as the number of drivers on the road nationwide (at least during the first quarantine) was estimated to have dropped by 50% or more. It is safe to say that whatever we thought our normal was before March of 2020, is now in uncharted territory. While we are all contending with Covid-19 and its domino effect, we are also amidst an election driven by more ad spend than we have seen in prior history. Each election cycle has inevitably broken prior ad spend records, but the 2020 election will likely set a new standard for electoral advertising spend. From national to the local, this makes things difficult, as tighter inventory means less chance for your message to get out to viewers, readers and listeners. It is harder for local ad spenders as inventory becomes slim (especially in swing states) and competition for spot clearance rises. Market factors have always been present. Today however things just keep moving in the direction of different. What we do now will in large part define our businesses for years to come.
Before we get into the weeds, let’s talk about social media. There are many out there who just do not see the value in setting up a social media presence, but this is where those you want to talk to may be found. It can be a pain to figure out what content you should or should not post. It definitely requires a commitment to find content. In March of this year we had to get creative like never before. So much of what happens in social media is based around an event. Events in this context can have various meanings. Examples can be unique locations, awards, judgments, accomplishments, conferences and so on. When suddenly you have no conferences to photograph, the staff is not coming to work and business travel had come to a halt, trying to fulfill a social media strategy becomes a whole new world. Our goal before 2020 became uniquely bizarre, was to post across most of the platforms we engage three times per week. For a considerable portion of this pandemic, we managed to keep that going. There have been some weeks where we hit only two posts, and that is okay. You want to be careful about posting when you have nothing to say that is genuine. However, the search for content must be perpetual. Our team met the challenge by creating: a) graphics to acknowledge holidays, b) brief videos for Instagram’s IGTV about health and creativity during the crisis, c) a collection of pictures or videos from staff based upon a given theme, d) photos of our brand in fun, unique and interesting situations and e) inspiring or relevant quotes to name a few. Each week we seek to explore ways in which we can make everyone out there know that we are still in the fight. In the beginning of Covi-19, many law firms took to social media as an opportunity to let the public know that they are still taking cases and how they set up an efficient and safe work environment for their team. Lawyers posted about taking meetings using Zoom, Face Time, Skype, SLACK or other platforms for face to face communication. This was important to set the public standard quickly and without hesitation, and it also helped these lawyers stand out in contrast to their competitors that did not do that. It is always going to be hard to know what people find interesting or engaging. The fact is, you just never know but that should not stop you from creating a social network identity. Do you have a Face Book or Instagram? We all won’t have a million followers or award-winning content, but we all have ways to tell some kind of story. If you are a lawyer, talk about law. Use the opportunity to show your leadership in a given practice area. Your best move is to use the platforms to educate and tell people something about you and your firm. There is a lot to be said to humanizing your business. Sharing honors, awards and settlements is always something the public will want to see about you.
As a marketer, my perspective in writing this article is to help your advertising objectives find clarity. Let’s start by asking ourselves some questions. Do you locally brand for single event? Is your vision national with focus to case acquisition from medical devices, drug manufacturers or even institutional abuses and violations with large plaintiff pools? Where is your bread and butter? What have you done to adjust or overcome amidst a shut down, travel limitations and quarantines?
There are some firms that have achieved local celebrity with their ads. This is done by remaining on the air or in the spotlight at all times. This can be achieved with a variety of budget levels and can be undeniably effective. When kids know the jingles or themes of various local attorneys and have them memorized each time the commercial comes on, it’s likely their parents will think of that firm when they need it. Through presence and creativity, they are increasing their consistent share of case acquisitions in their market on the basis of familiarity, which engages trust. Creativity can apply to all aspects of your business. As Covid-19 hit, key elements such as live action commercial shoots came to a stop and many production teams still remain paused. At this time, we were in the process of developing a branded theme for one of our clients. Instead of waiting for a breakout moment to begin filming again, we innovated customized graphic illustrations as scenes within our commercials creating new, eye-popping content. We then continued to work with high end motion stock footage, pre-existing footage (if available), and fresh voice over content. Decisions were made thoughtfully and quickly to not be victimized by the circumstance but rather expand our offerings as a result of it. The finished product has since inspired a new wave of consideration to how spots are produced. As a matter of strategic approach, now is the time to be innovative and creative.
It’s important to consider all of the options to touch your ideal plaintiff which includes anything from TV, Radio, Print, Billboards, Social Media, TV and Digital Programmatic, and Community Outreach programs. Throughout my career, I have always been a proponent of a multi-media approach. We refer to this as Hybrid Fusion. People are now consuming content at nearly every point within their typical day. It should be a priority to build an outreach program that is diverse but not paper thin. If you have a limited budget, it may make sense to split that between TV and Radio first. Over time, implement digital such as social media and landing pages or other ways to engage your community, but try hard to have light diversity to start while evolving to something more broadly in market reach. There are other variations to the way you can consider a media mix. Just be cautious not lose your opportunity to make an impression by meeting fragmentation of your plaintiff pool head on.
While it makes sense to keep your focus on single event cases in your own backyard, one only has to look to the national market to see the opportunity to build cases across the US. Mass Tort, which has been an ever-burgeoning sector of law firm focus for several decades, gives law firms some cover on where to turn their investments when the local approach is too diluted and low reward. As law firms began struggling on single event cases back in March of 2020 due to the quarantines, there was a noticeable shift to engaging potential plaintiffs through a mass market reach platform than earlier in the year. It is not a quick fix, it’s a long game and comes with its own set of complications but it has shown to be resilient over time. National media may have times when it is slow but at the end of the day if you are aggregating the population of the nation, it will always have a larger accumulative value than anything you can achieve in the local market. Media is diverse and rarely offers a one size fits all approach. Your own criteria drive the plans. There are two main tenants to devising a media plan. On one hand you have cash buying (in its many forms) that can always make sense depending upon budget, timeline and relationship with the viewers. Cash buys can target to programming rotations or more directly down to the exact program. Each execution has its own pricing structure and how the costs are calculated. Be willing to be creative and open to utilizing other forms of media. On the other hand, there is performance or “pay-per-action”.
Defining performance, think about it as contingent media. You only pay for the media when it successfully drives prospective a client or lead. The cost of that lead is how results are quantified and cases are obtained. Therefore, you may have a case that costs $100 per lead or call of typically thirty seconds or greater. If you have a cost per case goal of $500, then we would need at least one in five calls to convert. This is a simple yet highly effective formula for campaign management. Most campaigns convert at one in four to five as a conservative average. This strategy is best applied to national campaigns. That being said, no two cases are alike, so if you are buying Round Up and 3M, you should not expect the same cost per case or lead.
The convergence of media and law firms seeking plaintiffs is a unique opportunity to either create identity in your market, despite something as severe as a pandemic, or extend your reach nationwide by engaging in the mass tort marketing and intake space. Targeting will be increasingly important to growing your practice with a media approach. In closing, do not be afraid to innovate or be the first to try a new approach. Leaders must lead. Good luck out there. I look forward to seeing you all in 2021 and hearing about your fierce stories of perseverance within a pandemic.
Stuck at home? Watching a lot of TV? Pharma’s way ahead of you.
In April, TV ad expenditures for the top 10 prescription drugs increased to $183 million from $156 million in March, according to FiercePharma. Topping the list was AbbVie’s rheumatoid arthritis drug Humira which, along with six other drugs, accounted for a $5.1 billion jump in U.S. medical spending last year, according to Doc Wire news.
AbbVie increased Humira’s price by 15.9% in 2019, which equated to a $1.857 billion increase in the health care dollars it rakes in despite “no new research or evidence over the past three years [that] has supported these increased prices,” says the site, The price of the aggressively advertised Humira vaulted from $19,000 a year in 2012 to $38,000 in 2018 says the Huffington Post.
According to FiercePharma, AbbVie spent $52.9 million advertising Humira in April, as the nation locked down. The figure was double the ad budget of its next closest competitor and included a voice-over telling COVID cash-strapped viewers that AbbVie “may be able to help” with drug prices.
Humira is the poster child for Pharma’s profit party of extreme priced, liquid “biologic” drugs like Enbrel, Remicade and Cimzia that require injections. Wall Street loves biologics, which make thousands per patient per year, Enbrel, for example, netting $67,000 per year per patient.
Biologics also represent less competition than lowly pills since their generics, called biosimilars, do not have a clear and easy path to market as pill generics. Since the Biologics Price Competition and Innovation (BPCI) Act of 2009, only 18 biosimilars have been approved for U.S. marketing with few available on the market and none approved as interchangeable with biologics says Health Affairs.”
How lucrative is Humira? It enabled its original company, Abbott, to create an entirely new company, AbbVie, dedicated to Humira sales only in 2013.
Price Is Only One Humira Issue
If price were the only objection to the $20 billion a year Humira franchise, it would be no different from the many specialty and cancer drugs that also raise our taxes and health care costs while lining Pharma’s pockets. Think Novartis’s cancer drug, Kymriah, which costs $475,000 per patient, Actimmune, for chronic granulomatous disease, priced at $52,321.80 for one month, and the gallstone drug Chenodal priced at $42,570 for one month. We all know the price of Hep C drugs.
But Humira is also a dangerous drug whose risks are occluded by “go on–be happy” advertising. For example, the Milwaukee Journal Sentinel reported last year that “Humira has been linked to 169,000 reported serious adverse events and 13,000 reports of deaths,” despite the saccharine ads. It is linked to life-threatening fungal infections and sepsis, it adds.
According to the Journal Sentinel, since 2000, the FDA has issued more than “25 warnings and safety communications” for Humira and similar biologic drugs–all after the drugs were approved for use in patients. “The Journal Sentinel review found warnings for various fungal and bacterial infections, as well as rare viral brain infections. Other warnings included tuberculosis, flesh-eating bacteria, various neurological conditions, liver and heart failure, as well as lymphoma and other cancers.”
Drugs like Humira “are not selling on the merits alone. Otherwise, they wouldn’t need all the advertising,” said Dr. Rita Redberg, editor of the journal JAMA Internal Medicine, and a professor of medicine at the University of California, San Francisco.
Sleazy Marketing, Conflicts of Interest
While AbbVie was still a gleam in Abbott’s eye, it enlisted the public relations giant Edelman, and Pharma ad agency, Harrison and Star to create buzz. Abbott gave out free samples of Humira to seniors in 2003 while lobbying Congress to get the drug paid for by Medicare–a maneuver that worked. Abbott announced it would “provide its recently approved rheumatoid arthritis drug free to Medicare patients without drug coverage until the government agrees to pay for the medicine,” said the Chicago Tribune. As meth dealers say, “first taste free.”
Financial arrangements with medical associations didn’t hurt sales. For example, between 2013 and 2017, the American Academy of Dermatology received $2 million in grants and donations from AbbVie, reports the Journal Sentinel.
AbbVie’s “nurse ambassador” program, which began in 2012, was especially sleazy. Registered nurses were paid to go to the homes of people taking Humira but, according to a lawsuit, they downplayed the risks of cancer and serious infections and were instructed to avoid directly answering patient questions about such serious side effects. If nurses must be sent to homes, the drug is certainly not “selling on the merits alone.”
“Through the program, doctors allegedly got kickbacks in the form of cash, meals, drinks, gifts, trips, even patient referrals,” wrote the Journal Sentinel. “One court document indicates the national program reached 179,000 patients.”
A California lawsuit alleges the program began as a pilot effort in 2012, developed a presence in California in 2013 and soon became “wildly successful in this state and others.” California Insurance Commissioner Ricardo Lara told the Journal Sentinel private insurers in California alone likely “paid out $1.2 billion in Humira claims from 2013 to 2018, making it potentially the largest insurance fraud case in the department’s history.”
Indication Creep and Opportunism
Humira was approved by the FDA in 2002 for moderate to severe rheumatoid arthritis only. Once approved, it experienced “indication creep” and was approved for psoriasis, psoriatic arthritis, Crohn’s disease, and ulcerative colitis. Despite its attempt to capitalize on a COVID-quarantined audience, AbbVie advertising did not increase web visits that would drive sales. “The number of monthly visits to the Humira.com site stayed relatively stable, decreasing very slightly from 518,000 visits in March to 502,000 visits in April,” reported Pharmaceutical-technology. People may have been more concerned about COVID the site speculates.
One of the first things I remember learning about advertising was that good advertising didn’t try and sell you a product or service, it created a feeling or emotion that you wanted to experience. You connected with that experience. That experience was the promise of freedom, security, joy, or perhaps relief. Embracing that connection would mean that you could live a better life or solve a unique problem. A problem in your life that maybe you weren’t even aware existed. Countless companies sell their products by showing you how life could be better if only you were lucky enough to have their product. Firms successfully selling their services, paint an equally beautiful picture of the better quality of life being lived by the people who use their service, often contrasted against the lives of those who suffer without having the benefit of those same services. We see the problem-solving approach leveraged heavily in political advertising. A threat is created that seems overwhelming and the only way to stop that threat is to vote for the person who can save you. These emotions and experiences are utilized to create a brand. Each successful brand becomes synonymous with the projected experience promoted by the advertising and if that experience is consistent, loyalty is created.
While the basics of good advertising haven’t changed, the advent of attention deficit consumerism has made brand loyalty harder and harder to achieve. Advertisers have to reach consumers through multiple contact points with specific messaging that will resonate quickly and stand out from ever-increasing competition. Instant gratification was thought to be a negative, now it’s the social norm. We all want everything right now and we want it to be meaningful beyond our wildest expectations. Which formula works best for your brand? What’s the best way to create brand loyalty? First, you need to make sure that you understand your current brand and that your firm is branded correctly.
It’s important to understand that your practice is not just you, it’s your entire team coupled with the experience you provide to your clients. It’s important to remember your brand is not how you present yourself and your firm, it is what other people feel about you and your firm. You need to actually see your firm from an outside perspective. You need to look at it from your client’s point of view. Once you do that, you can create the appropriate brand and you can start maximizing your marketing and advertising ROI.
Think you have an actual brand? Is it a good one? Many firms have a weak or non-existent brand and it impacts everything they do. I’ve seen firms go from under 20% conversion on PPC to well over 60% just by establishing a stronger brand. So, what’s the key to a stronger brand? What do all great brands have in common? Authenticity! The absolute primary focus of your brand should be authentic presentation of your product or service. If you want scalability and unlimited potential, don’t handcuff yourself with the wrong brand.
I worked with a firm who’s managing partner told me he had a hard time keeping his people and his client’s happy. He thought he should be getting more referrals and blamed his staff for their lack of follow up and staying in touch with previous clients. He focused on reviews and ratings and missed the larger picture. He explained to me that he was spending money making the phone ring and his intake department was signing and converting plenty of cases, but his revenue was down, and he wasn’t sure why? He had lower than expected case values and he had a hard time keeping people motivated. I asked him one simple question: What kind of experience do you want your clients to have? He told me he wanted his firm to be the “Ritz Carlton” of law firms and that he wanted everyone in his firm to go out of their way to make their clients feel like they were being treated exceptionally. I asked him if that was happening and he agreed it wasn’t. He just wasn’t sure how to make it happen (Hence his confusion about their lack of referrals and his unhappy staff). It wasn’t difficult to realize the issue; he was promoting the wrong message and his brand was not consistent with his client’s expectations or experience. His marketing message was all about money. His advertising featured client’s with minor injuries who seemed to get massive settlements and huge recoveries. When I asked him why he chose that marketing strategy he told me that his advertising agency convinced him it would be successful. When I asked him what his agency considered successful, he told me that they promised to make the phone ring and he’d get lots of cases. (They also didn’t understand why he was unhappy).
Let’s face it; not all lawyers are the same, not all agencies are the same, and not all definitions of success are the same. If you judge your success based on the number of cases you generate and the cost of those cases, then you are likely missing the bigger picture. Your firm is an organic and evolving enterprise made up of the people who work with you and the clients for whom you advocate. The culture you create (whether it’s intentional or not) is the culture that your clients will benefit from or the culture that they will have to endure. Why is that important? Because their experience becomes how you are known in your community. If that experience is divergent from your brand marketing, then your clients will feel mistreated and will likely have an adversarial relationship with your staff. If your staff is constantly fighting to keep your clients happy, how can they enjoy coming to work? And how can they have a great working environment? If you have unhappy clients and unhappy staff, does it really matter how many cases you are generating? When you look at the big picture, you can see the disconnect and then you can pivot. What you want for your firm is what you should build and what you should dedicate all of your energy towards achieving.
That same managing partner who wanted to be the “Ritz Carlton” of law firms because he wanted to provide an exceptional experience to his clients was in fact failing with every new intake. His clients were expecting huge settlements for minor injuries and when they were faced with the reality of dealing with his trial team (in order to maximize their case values) they were frustrated with the amount of time the process was taking and ultimately unhappy with the value they were getting for their injuries. If you tell people that they will receive huge compensation for minor injuries, you can’t possibly keep them happy. They will make your staff miserable, and you will create a terrible culture with low case values and lots of turnover. If you want a soft-tissue and property damage settlement machine, great. But that’s clearly at odds with the “Ritz Carlton” approach.
Once we changed his brand and started promoting the message of care, compassion, and client experience; something incredible happened. He started getting better cases, his staff started enjoying their jobs, and everyone started believing in the brand. In a few short months he started reaping huge benefits. All because he started being authentic in his marketing and advertising. Most people don’t realize how easy it is to attract cases. It’s also easy to attract staff members. It’s difficult however, to grow a practice with a scalable and positive culture. The more you maintain a “Core Authenticity”, the more you can grow and evolve organically.
Remember: People aren’t looking for a product or a service. They are looking for a solution that will solve their problem or improve their life. Research shows us that the average person considering legal help doesn’t think there’s a real difference from ﬁrm to ﬁrm and they believe most lawyers will achieve the same results. So, you need to project a brand that speaks to who you are. Branding is the promise of an experience. Delivering on that promise every time someone interacts with your brand, whether it’s the way you answer the phone, the way your website functions, or how you perform your services to your clients, is the key to success. Marketing and advertising are about an emotional connection, and how your clients feel about themselves and their decisions when interacting with you and your ﬁrm. If you want to grow, you need brand ambassadors and you need to provide an experience that is dependable and will lead to referrals and endorsements. When you do it right, you can grow exponentially.
Whether you’re just building your brand, or you’re trying to evolve your brand, you have to discover what makes your ﬁrm unique and what differentiates you from your competition. You need to decide how you want to deﬁne yourself. How you can create a brand that resonates with your potential clients. One that will be consistent with their experience once they retain your firm. The goal is to develop a solid, authentic brand that you can consistently deliver to your audience, so you create loyal believers in your brand. Loyal believers become brand ambassadors and brand evangelists in your community. Because there are so many different marketing channels, your brand must be used properly on every platform on which it lives so there’s no confusion when communicating your message. Your brand has to be maintained throughout your client’s entire experience from intake through settlement. Your clients need to believe in you and your firm, and they need to feel that you gave them your best. Once you have happy clients, you will get referrals. Once you start getting referrals, you’ll know you are on the right track and you’ll know your people are supporting your vision. Once your people supporting your vision, you can realize that vision and become the author of your firm’s success story. It all starts with brand authenticity.
The Art of Work in the Age of Anxiety
By: Thomas Gagne, Esq.
Immense harm is caused by the belief that work is virtuous. – Bertrand Russell
Know Thyself. – Delphic Maxim
The idea of work caught my imagination the other day. Not work in the sense of preparing for a deposition, or some such, but the idea of work. And in the course of my mental meanderings, I recalled the above quote by Bertrand Russell. It struck me as odd that he, of all people, penned this little plum, given that during his ninety-eight years on this planet he was, what we would call today, a workaholic.
The man was a writing machine. His literary legacy included eighty books, two thousand articles and over four thousand letters. Hisgreat work, The Principia Mathematica, sought to derive allmathematics, no less, from logical precepts. He failed, defeated by mathematical paradoxes, but not without co-founding Analytic Philosophy, which would fill the rice bowls of philosophy professors for the next half-century.
Logician, Cambridge don and mentor to the young Wittgenstein, Russell stuck his finger into a dizzying variety of intellectual pies – from ethics to epistemology, religion to politics. He was a liberal darling and a royal pain to conservatives. He was once dubbed The Most Hated Man In England” after lambasting Britain’s role in the war -- the First World War — a practice he stubbornly clung to until it landed him in jail for a brief period.
Russell was a scion of Welsh aristocracy, so we can understand, at least, a class affinity for leisure. But is he seriously suggesting that worklessness (“idleness,” I think, misses the mark) is the preferred state of being, even given his own hypergraphia? I don’t think so, even if there is authority to contrary.
Consider Genesis. Adam and Eve didn’t work. So what did they do? I imagine their playing, naming things (Adam seemed to have a talent for taxonomy), sleeping, eating, and fooling around – generally having a grand old time. The world’s first leisure class on an indefinite vacation. But it wouldn’t have been much of a story if things remained paradisiacal, so, like the kids they were, they did the one thing they were told not to do — eat forbidden fruit. Their punishment for their juvenile curiosity (and becoming, in effect, self-aware, in the first great act of self-discovery) seems, at this distance, severe. In addition to deportation, thanks to them humanity now had to survive by the “sweat of their brows” i.e., work in perpetuity.*
This story’s message regarding work is clear – work is punishment. From the beginning, as it were, western man found himself contra work. Work implied malfeasance, the surest sign of original sin. This left us the major literary and philosophical theme that if only we could return to our original state, we could be happy again.
Later, however, the sting of having to work is mollified. In His Sermon on the Mount, Christ offered: “Consider the lilies of the field; how they grow, they neither toil nor do they spin.” Mathew 6:25. In other words, don’t worry; God will take care of you. It even becomes something a virtue: “A sluggard’s appetite is never filled, but the desires of the diligent are fully satisfied.” Prov. 13:4.
This tension involving the moral value of work is especially apparent in the legal profession due to the predominate belief, especially in America, that hard work is essential in securing a respected place in society. So we cater to work, fetishize it, obsessively react to its whims, obsequiously heed the master’s voice—the clarion tinkle of a smartphone, or the jolly jingle of a tablet.
We often despise work, enlisting certain days to reflect our resentment of it. We have “Hump day” or “Thank God it’s Friday.” If we should have a day off, perfect strangers will ask –-- Not working today?”, as if we were committing some sly misdemeanor with our absence demanding explanation.
Psychoanalysts tell us that the two most important things in life are love and work, but then doctors tell us work is killing us. We work too hard. We sleep too little. In Thomas Mann’s Buddenbrooks (1901), Thomas Buddenbrooks, a respectable businessman, chastises his no-account brother: “Work! Occupy yourself with something useful instead of indulging in your hypochondria.” Pithy sayings gird our working loins: “Greatness is 10 percent inspiration, 90 percent perspiration,” implying that if we only worked more, we too could be an Edison when the bitter truth is there are those who exceed us and will continue to exceed us all out of proportion to their effort.
In college, my friends and I would sometimes debate who worked the hardest and was, therefore, due the greatest respect – the engineers, the architects or the pre-meds? The controversy was based on the unstated equation that hard work was directly proportional to merit. I was a literature major, so I wasn’t even in the running, but I always pulled for the architects, those hidden heroes of creativity, sporting Band-Aids on their fingers, courtesy of the Exact-O-Knife. Bleeding for your work. Now that’s commitment.
Even our attitude toward downtime reveals our attitude toward work – our need to “get away from it all.” We attend corporate “retreats” as if we’ve been in battle. At the same time, we acclaim work by bestowing upon employees such titles as “Employee of the Month.” Then we turn around and parody work in movies like Office Space, in which bosses are heartless egomaniacs and employees are paranoid zombies substituting clichés for conversation (“Looks like a case of the Mondays”), in which the protagonist’s dream is to do “absolutely nothing.”
We tend to ignore the nature of work, focusing on its attributes or consequences. We are fascinated by how other people structure their working time. Is it best to work harder in the morning and then gradually taper off as the day wears on? If so, why are some people so productive in the evening? Is taking a nap in the middle of the day decadent, or sensible? Should we work in accordance with our “circadian rhythm?” Are we working hard for our families or at their expense?
To refer to a person as “hardworking” implies she is worthy of respect, ambitious, a real hard charger, and a go-getter. Yet the supreme irony is that many people work to become members of the leisure class, where work is optional. They do not view the leisured elite’s relative idleness as a moral defect. On the contrary, they pay it the ultimate tribute by imitating its style.
Is it any wonder we live in what some have dubbed “The Age of Anxiety?” Why do we revere work yet simultaneously deplore it? Put simply, why are so many people unhappy in their work?
Obviously, people work because they need money to survive. Then to shine. Not a world-shattering insight by any means. But if we work just to survive, or we choose a vocation based merely on its remunerative potential, and we’re just surviving, or surviving well, is that enough?
For many people, working just for money can lead to dreadful unhappiness. It can foster family discord, anxiety and other emotional problems; it invites drug and alcohol abuse, even suicide. People end up working at jobs they detest, buy things to impress or to fill an inner emptiness, then buy more things they don’t need with money they don’t have until they have to actually buy extra space to store the things they never use. Caught in a cycle of hyper-consumerism, work becomes their master. Their job consumes their being.
Now, don’t get me wrong. I’m not anti-consumerism. I like my sports-car. I carefully watch my investments. I don’t believe the pursuit of money is bad or wrongheaded. I’m just after bigger game. I believe man is more than Homo Oeconomica. To that end, let’s conduct an extreme case analysis and consider what most would agree to be Michelangelo’s greatest work of art – The Ceiling of the Sistine Chapel (The Ceiling).
The Ceiling, with its tortured torsos of the damned whirling in perfect geometric counterpoint to the exquisite bliss of the ascendants in some kind of celestial ballet, marks a quantum leap in Michelangelo’s artistic development. Although large frescoes depicting religious themes certainly weren’t novel during the High Renaissance, it was the scale, intensity, and compositional complexity of The Ceiling, which distinguished Michelangelo’s great work. His Ceiling transcended the beautiful to become an earthly embodiment of pure spirit. Michelangelo began the project with sixty-five assistants but soon fired them all. How did one man accomplish this artistic miracle?
To understand the amount of effort, it was the custom among fresco painters of the period, Michelangelo first sketched his subjects on large sheets of paper that he would later transfer to the prepared surface. He then applied the details. He would begin with an idea of the subject and its function within the overall composition, a clear enough idea but still largely inchoate, unexpressed. He then sketched and re-sketched the idea until the form expressed his idea. It wasn’t an intellectual exercise as much as an emotional one. He was after an aesthetic emotion rather than a specific form.
As he neared The Ceiling’s completion, he sketched and painted faster and with more confidence until he no longer needed preliminary sketches. In time, he would paint directly onto the virginal surface, each subject a masterpiece, unmediated, unpremeditated, flowing directly from his brain to his brush to the plaster.
Western science calls the process “cognitive self-actualization.” Colloquially we call it: “getting in the flow.” Eastern thought terms it “doing-not doing.” A perfect example of this phenomenon is the concert pianist. She does not consciously place each finger on pre-selected keys. The music simply flows from her, flows through her, into the instrument.
Cognitive self-actualization is not a re-iteration of the facile saw – “practice makes perfect.” Achieving perfection is not the point. Being the best is not the point. The point is the search, the quest for the unalloyed “you,” that deep, authentic center within us patiently awaiting liberation. Shift perspective from the work-product to what the work does to and for the worker. In the case of Michelangelo, work unleashed his inner form, his spirit. Just as he would chisel away layers of marble until his sculptures “revealed” themselves, work eliminated inauthenticity within the artist to reveal the pure idea of Michelangelo, which had always, already existed. Michelangelo’s greatest work of art was not the Ceiling. It was Michelangelo himself.
Of course, there was only one Michelangelo. But it’s been my experience that most people possess at least one talent or ability, if not several, to one degree or another. I won’t go so far as to claim that everyone possesses a talent -- life certainly isn’t that kind, but what is truly sad is that many people won’t let themselves discover or cultivate their talent(s), which, contrary to current wisdom, I believe is innate.
Let me illustrate. I recall sitting in my parents’ dining room, age fourteen, studying Gray’s Anatomy (I can hear the snickers), specifically the structure of the spine (which happens to be the body part I deal with the most as a PI attorney). My interest in anatomy, combined with a certain academic success, led me to believe I was headed for a career in medicine. Unfortunately, I was all thumbs in lab – catching my hair on fire by standing too close to a Bunsen burner, spilling concentrated hydrochloric acid on my jeans, among other faux pas (In my defense, I wasn’t the first person to spill acid on his jeans).
Add to that my visceral aversion to dissection (I don’t mind the sight of animal meat, as long as I’m not the butcher), and I came face to face with the first great truth about my future – no matter how well I performed on the theoretical side of science, in its actual practice, I was a disaster. My dream of medical school evaporated, and I was devastated. It was my first great heartbreak. My college advisor suggested I try pursuing something less “hands-on”, something literary perhaps. So, via an undergraduate tour of western philosophy and literature, I settled on the law for my post-graduate studies. To my astonishment, I did well in law school, despite my initially tepid enthusiasm for the subject. It suited my inclination to analyze, argue and write.
Was I on a path to becoming an attorney even earlier, when, at the age of six, I inveigled my father, a merchant mariner at the time, into signing a promissory note — I called it a “contract” — for $120.00 when he returned from his next voyage? Was I on that path at seven, when I would write long letters to my father while he was at sea, analyzing such urgent topics as the differences between the Tasmanian Devil in the Bugs Bunny cartoon and the real thing)?
The seeds of my becoming a lawyer seem to have sprouted at a young age, well before I even knew what one was. Environment nor genetics can account for my actions. No one in my family was a lawyer; frankly, none had been to college. Nor does enculturation explain it.I watched cartoons and I Dream of Jeannie, not Owen Marshall, Counselor at Law. Was my career in the cards all along, or am I merely engaging in confirmation bias, longing for meaning in a potentially meaningless world?
Perhaps. But I don’t think so. I believe that my career is a natural extension of my personality, an expression, if you will, of my innate being, having existed all along, which is, even at this moment, furtively, yet inexorably, progressing. So I say: pierce the quotidian clutter and noise of life to see it, to feel it, for yourself -- that which is within, that’s alive, that’s yours, and that, at the same time, is not yours. And that, patient reader, requires introspection and meditation.
Embrace experience. Commit to the trash your fears and status quo bias. Listen to what the world, nature and providence is plainly telling you. It’s not a secret. You don’t need a special handshake to get in. It’s not coded, so there’s no need to decipher it. Chances are your soul’s vocation (or avocation) is already beckoning.
Finding one’s calling and thriving in it is not easy. The search is not without risk or pain. There are no guarantees. Realize too that work is not synonymous with vocation. Work has a greater significance. Work can be one of the highest expressions of one’s inner divinity, in Chinese one’s Ch’i, in Buddhism one’s Prana. Heidegger called itBeing. It involvessurrendering to the talents and gifts providence and nature have thoughtfully provided. Work is a chance to live a life of true meaning and fulfillment. It enables us to experience moments of epiphany, to celebrate one’s existence, to celebrate life. If this line of thought borders on the mystical, so be it. I think it’s a mistake to indiscriminately adopt the west’s talismanic belief that logic and reason govern all the affairs of this world.
So, with all due respect, I must disagree with Professor Russell on the subject of work. Work is not intrinsically harmful, a chore to have done with, a punishment to endure, an “ethic” that burnishes one’s social status, a means to acquire things, a way to win the esteem of others, a duty to fulfill, a commodity to sell, a means to build a fort to protect us from the world, or a temple to our vanity. It is not intrinsically alienating, and it certainly shouldn’t make us neurotic.
Work is a virtue, just not in the way we commonly define the word. It is intimately involved in identity formation** Work should inspire, not imprison, exhilarate, not enervate, if done within the bounds of good sense and balance. How we work, and what we do is the rub. If we do it right, and with a bit of courage, then it becomes our creative partner in an ever-evolving process of self-discovery, renewal and, if we’re lucky, transcendence.
Thomas Gagne, Esq.
Greenville, South Carolina
*Note that the First Great Crime was malum prohibitum, while the Second Great Crime – Cain’s passion killing – was malum in se. The implication is clear. Respect for the lawprecedes, and therefore supersedes, respect for natural or common-sense moral law. This interpretation neatly fits Hebraic tradition and its focus on strict adherence to the law– man’s relationship to God is fundamentally legal, as is, a fortiori, man’s relation to man. There’s nothing per sewrong with eating shellfish – just don’t do it. The fact that an oyster is generally benign and quite nutritious is irrelevant. Respect for the law is the point. The subtext of Genesis establishes the central role law plays in exerting social control and conformity in groups. Ensuring equity and resolving conflicts are important but ultimately secondary concerns.
** For an introductory understanding of the critical role identity formation plays in our psychological development see Erik Erikson (1968) Identity: Youth and Crisis. New York, NY: W.Norton Company
The Practice Of Law After COVID-19: Lawsuits To Watch
By: Elizabeth DiNardo, Esq.
As the nation continues to weather the COVID-19 pandemic, the effect on the legal industry resulting from the global shutdown will ultimately be substantial, re-shaping the way litigation unfolds in the future. As court systems slowly begin to implement reopening plans with challenging and changing rubrics, the practice of law will need to evolve as well to accord with the “new normal.”
As the pandemic evolved, many in the legal community speculated as to whether there would be a significant slowdown in the number of new cases filed, notably class action cases. In contrast, however, legal experts report a significant increase in the number of newly-filed class action lawsuits associated with the shutdown.
The 2020 Carlton Fields Class Action Survey—a report comprised of data from interviews with chief legal officers, general counsels and direct reports to general counsel at 400 large companies across a wide range of industries—was recently released. The survey states that as of May 2020, corporate America is facing more than 500 new class action suits stemming from COVID-19 and shutdown-related matters. It further breaks down the new class actions associated with the pandemic and reports that:
25% have been filed against insurance carriers over business interruption coverage claims;
25% have been filed against educational institutions over tuition refunds;
10% have been filed against gyms, venues and other entertainment-related events;
8% have been filed against the airline industry and the government respectively; and
7% have been filed against financial institutions over Cares Act claims.
The survey conjectures that the full breadth of pandemic-related class action suits is yet to be seen, as risk remains prominent while the country continues to navigate the process of reopening.
The following details the types of cases that have seen an increase in filings since the start of the COVID-19 pandemic and are likely to continue to make headlines in the United States.
Transmission And Failure To Warn Cases:
As the country delves further into reopening businesses and schools, it reasonably follows that there will be an increase in the number of lawsuits filed related to how individuals and businesses reacted, or failed to react, to the danger the coronavirus presented. Companies will be closely scrutinized as to whether they properly ensured the safety of both their customers and employees, or whether they negligently enabled the spread of COVID-19.
One of the first pandemic-related class actions to surface was filed against the cruise line industry. Beginning in mid-March 2020, Americans became increasingly aware of the situation emerging on many cruise ships, wherein passengers were forced to quarantine onboard as a result of discovering the presence of the coronavirus.
Subsequently, a series of class actions were filed against various cruise lines alleging that many were aware of the risk that the coronavirus posed to passengers and crew, yet failed to immediately implement proper physical distancing measures and other preventative precautions to curb the spread of the highly-contagious virus. The suits allege that the failure caused extended forced quarantine periods onboard the infected ships, resulting in a greater number of individuals falling ill. Generally, the causes of action include general negligence, negligent failure to warn, negligent infliction of emotional distress, and intentional infliction of emotional distress.
Tuition Reimbursement Class Actions:
As the COVID-19 pandemic worsened in the United States, many educational institutions closed physical campuses and instituted online learning. As such, students were encouraged to leave on-campus housing and were no longer able to take advantage of the programs and athletics offered by their institutions.
Despite the closures of campuses, many colleges and universities failed to reimburse students for unused portions of the fees paid for room and board and other campus services no longer available to students such as health facilities, student associations, athletic centers, and on-campus dining. In addition, plaintiffs involved in the suits claimed that the online studies offered were far inferior to on-campus learning and sought partial tuition reimbursement as well. Many class actions, similar in nature, were filed across the country for breach of contract, demanding reimbursement to students.
These suits are likely to continue to make headlines as universities and colleges unveil plans for the fall 2020 semester. Many students, citing a diminished college experience and an altered online or hybrid learning platform, are resisting the payment of full tuition.
CARES Act And Paycheck Protection Program Lawsuits:
The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) is one of the largest economic relief programs ever introduced by the United States government and has been utilized by American businesses to maintain operations during the pandemic and accompanying shutdown.
As expected with any large-scale financial assistance plan, resulting difficulties are unavoidable. In lawsuits filed regarding the CARES Act, plaintiffs allege that banks have failed to properly administer loans under the Paycheck Protection Program. Specifically, many are claiming that certain banks misused government funds available under the program by preventing qualifying small businesses from obtaining Small Business Administration loans while extending preferential treatment to larger businesses and pre-existing banking clients.
Plaintiffs in the suits similarly seek monetary damages, as well as injunctive and declaratory relief.
Membership Renewal And Season Pass Claims:
Exercising at a local gym or planning a trip to an amusement park are not activities likely to resume to their fullest extent in the near future. Despite this, many Americans have paid for gym memberships or theme park season passes that are not currently usable. In some cases, these payments may be subscription-based and automatically charged on a recurring basis to the holder’s credit card, regardless of whether or not the facilities or services can be accessed.
Plaintiffs in the resulting lawsuits seek refunds of membership fees and seasonal pass payments made to businesses that are currently closed. The suits bring causes of action for breach of express warranty, negligent misrepresentation, unjust enrichment, conversion, and breach of contract.
In the wake of the involuntary closure of many businesses, some companies have attempted to rely on insurance, only to be told by their carriers that the policies in place do not cover losses due to the COVID-19 shutdowns.. COVID-19 business interruption coverage lawsuits have been filed in courts across the country by a wide range of businesses, though most commonly by restaurants.
In several cases filed originally in Pennsylvania federal court, the presiding judge ordered the actions be transferred to state court. Judge Nora Barry Fischer of the Western District of Pennsylvania opined that if the federal court was to decide the matter, it would merely be predicting how Pennsylvania state courts would react to the novel issues surrounding denial of policy benefits. Judge Fischer went on to predict an influx of similar cases in the months to come.
Website Noncompliance With The Americans With Disabilities Act Lawsuits:
While lawsuits centered on the Americans with Disabilities Act (“ADA”), may not immediately come to mind, the surge in online sales due to “stay at home” dictates may result in an increase in cases filed under the ADA.
As retail establishments continue to move further away from traditional brick-and-mortar stores to focus on online sales, such a shift demands increased compliance with ADA standards. Digital interfaces must be accessible to all, especially given the considerable move toward virtual communication and commerce.
WARN Act Lawsuits:
In the wake of the COVID-19 shutdown and, in many cases, a rapid decrease in business activity, some Americans have found themselves suddenly without employment. This has triggered a large number of Worker Adjustment and Retraining Notification (“WARN”) Act suits to be filed in recent months. According to the federal WARN Act, an employer must provide 60 days written notice of intention to lay off more than 50 employees during any 30-day period.
There are only three circumstances under which the WARN Act 60-day notice period can be reduced: (1) unforeseeable business circumstances; (2) natural disasters and; (3) in the instance of a “faltering” company. It is important to note that thus far, the government has yet to provide guidance on whether these affirmative defenses to the WARN Act will apply to the circumstances surrounding the COVID-19 pandemic.
WARN Act suits have already been filed in several states. The global nature of the current health crisis has encompassed every industry in its wake, the legal industry included, creating change on what seems like a daily basis. As the world adapts, entities will still be held accountable for injustices, perhaps to an even greater extent. It is yet to be seen what the overall effect will be, but those outlined are likely to be at the forefront of resulting litigations.
The virtual mock jury process — another wing in the multi-door courthouse
By Robert Swafford, Michelle Simpson Tuegel, James Wren and Jeff Jury
As coronavirus has upended routines and shuttered courtrooms across the globe, online meetings have abruptly become standard workplace procedures. After a sudden and sometimes awkward adjustment phase, the virtual meeting is now for many a familiar tool -- as well as a potentially valuable one for attorneys looking for a new route to closing cases in an efficient and cost-effective manner.
By combining court-assisted mock jury testing with online mediation, parties can open another wing to the “multi-door courthouse” first described by Harvard Law Professor Frank Sander.
Sander also wrote of the importance of “fitting the forum to the fuss” -- selecting among available processes the one which offers the most prompt and economical conclusion to the dispute. At the present pandemic moment, there are few processes to select from. But online dispute resolution with the assistance of a virtual mock jury is still available, and is in fact an efficient and attractive option for parties who want to continue moving toward resolution while saving the expense of a full trial, even beyond the age of coronavirus.
Some may be reluctant to move to an online process, and it’s true that a computer screen is no substitute for face-to-face human interaction. That is especially the case when it comes to conveying the emotions that come with a traumatic injury, or the understanding that arises during a sotto voce conference with a client in the midst of a proceeding. There may be concerns that a mock jury will not be a true representation of the potential jury pool due to the accessibility of technology and time, and of course, the possibility of technical glitches.
Though a virtual process may not be the right fit for every dispute, its drawbacks may be outweighed by its significant advantages. No time and expense is devoted to travel. In traumatic cases, opposing parties need not even enter the same building. Eliminating travel means eliminating a hardship for an injured party, and eliminating the risk of exposure to COVID-19. Most significantly, it means continuing to move the case closer to conclusion.
If parties agree to consider moving dispute resolution online, the first step is to work with opposing counsel to establish objectives, terms, and what the outcome of a virtual mock trial will mean for a real-life dispute. Parties may opt to consider the mock jury’s verdict binding or simply advisory, with or without a high-low agreement. Three options parties might consider:
Mini-trial. The mock jury’s opinion is advisory and not binding, unless parties agree and enter into a written settlement agreement.
Moderated Settlement Conference. Non-binding advisory opinion from a panel, not a jury.
Binding Trial. The judge in the actual case makes the evidence admissibility decisions, and parties agree to a binding result, whether through a high/low agreement or otherwise.
Regardless which of these three routes counsel and parties choose, involving the trial judge in at least the preliminary steps leading to the mock proceeding by jointly seeking preliminary rulings on disputed admissibility issues and the jury charge enhances trust in the results. It helps parties and counsel believe the outcome reasonably tracks with what would be considered in an ultimate courtroom proceeding. The court is simply informed after the virtual mediation whether or not the case settled. If mediation is unsuccessful, the court still retains the power to amend its preliminary rulings if additional evidence, argument or authority is presented in a court proceeding.
How to begin
While in a traditional mock trial someone from the defense team plays the part of the “plaintiff’s lawyer” and the other attorney is actually the defense lawyer, in this model you would have the actual defense lawyer and actual plaintiff’s lawyer each doing their presentations of the case, within the confines of agreed time limits and preliminary evidentiary rulings by the court.
It’s crucial to hire a technically adept professional recruiter to fill out your mock jury. Make sure the recruiter will screen out people without access to your chosen video conferencing platform and can have participants digitally sign nondisclosure agreements. The recruiter or someone hired by both sides should be able to handle the technical setup for the mock jury and conduct a pre-flight technology check with each participant.
Parties might also opt to include a virtual jury selection with 12 additional participants, and each side given an opportunity to strike 6 participants. To provide information for peremptory strikes, the parties can draft a mutually agreed-upon supplemental written questionnaire to be filled out by participants ahead of time online.
Especially in large cases, if the mock jury results are non-binding and intended to guide mediation, it’s worth considering the use of three mock jury panels instead of one. The three- panel approach will be moderately more expensive, but increases will only apply to the costs of juror recruitment and payment. This approach can yield benefits: if all three panels come up with similar verdicts, it will eliminate the temptation to dismiss the verdict as an outlier. If the panels come up with widely varied results, it will help both sides understand that trial will have a
Proceedings by computer are still relatively new, so advance preparation is key. Do a test video meeting with your client on a day without time pressures. This is a good time to address any concerns the client may have about the case or about taking the matter online. Also, talk to your client about what they should wear, and check the lighting, sound, and background. A dress rehearsal with counsel and the judge before trial day will give everyone an opportunity to become comfortable with the format.
Attorneys must also get their technological house in order. If your team prefers pre-recorded clips of testimony or depositions to live presentation, test playback of those recorded clips
through your online platform. Planning a method to display documents will avoid delays before the jury and smooth transitions. Depending on the type of case, parties may have security concerns. Investigate your chosen platform and make sure both sides take all reasonable measures to protect their devices and information. Unforeseen cybersecurity issues may be something worth communicating in writing and signing off on for both sides.
The day of mock trial
On the day of the virtual mock jury, attorneys should be giving presentations, facilitating discussion, and observing deliberations, not scrambling to make the technology work. Hiring an IT coordinator to manage the technical side of things will help the day run more smoothly.
Once everyone is logged on, the matter proceeds much as a courtroom trial would, with jury instructions, opening statements, depositions, and so forth. At the conclusion of all the evidence, the panelists are moved to virtual rooms, given a simplified jury charge, and instructed to select a foreperson and deliberate. All parties will be able to observe the deliberations. At the end of deliberations, the panelists will be dismissed, paid electronically, and reminded of the nondisclosure agreement.
The parties now move from the evaluative part of the process to decision-making. If the parties have agreed that the jury’s decision would be binding—either with or without a high-low agreement—this is the end of the process. If the parties had decided that the jury’s decision would be advisory, they would move on to mediation.
After the mock jury’s verdict
Several process models may follow the virtual jury process:
Mediation. After virtual mock jury has reached a verdict, mediation can be free of the need for speculation about what a judge or jury might do. The least happy party may criticize the outcome, but the virtual jury’s verdict will be a helpful focal point for facilitated discussions.
Neutral Evaluation. Traditionally, a subject matter or process expert receives and considers information from the parties, then provides a neutral evaluation of the strengths and weaknesses of a case. In this model, there would be no need for prediction of an outcome, so the neutral could proceed to debriefing the outcome and assisting with negotiations.
Moderated Settlement Conference. The traditional moderated settlement conference has an impartial panel deliver its opinion on liability, damages, or both issues. A virtual jury verdict would replace the advisory opinion as a basis for further informal discussions, delivered in the structured format of a jury verdict.
Times that force rapid change on us are tough. But historically, such times leave in their wake lasting adaptations borne of the flexibility and ingenuity of the most creative minds. Often, those crisis-driven adaptations illuminate benefits and advantages that long outlast the crisis itself. This may be such a moment, which leaves parties and counsel in permanent possession of fuller toolkit with which to keep resolution of disputes moving forward.
Weathering A Pandemic And Legal Practice: Your Firm Is A Business That Requires Strategic Planning
By Kelly Anthony, Esq. | Deputy General Counsel
Attorneys often state that they “practice law,” but they don't frequently recognize that managing a law firm is also managing a business. Like any corporate entity, a law firm requires planning and oversight of all administrative, financial, and operational issues.
With proper forethought and preparation, a law firm can operate smoothly even in the face of rapid change, as seen during the recent COVID-19 pandemic. If your firm experienced any roadblocks during that time, think about the following:
How can you manage your firm and its growth potential effectively under all circumstances?
A good place to start is to be sure that your firm has a stable funding source. A significant issue for many contingent fee firms is having sufficient working capital to finance the practice. It is important to consider:
• The ability to maintain firm operations throughout the peaks and valleys intrinsic to contingent fee practice; and
• The capacity to take advantage of opportunities as they arise and act on new ventures when they present themselves.
You may have an existing bank loan, or you may be utilizing specialty funding or leveraging personal assets to run day-to-day operations.
However, using firm or personal assets can be costly in lost opportunities and loss of the ability to grow personal net worth. Further, reinvesting after-tax dollars into the firm may cost more than traditional debt sources in the long run.
If you have financing, in terms of repayment, make sure you consider how long the debt may be outstanding. Is this a short-term solution or a long-term business plan? Banks, while a viable option, generally will not value your contingent fees as assets. You may be severely restricted in the amount you can borrow and the repayment terms, thereby limiting your firm’s growth potential.
A line of credit from a specialty financing company can be a great resource to your firm because it enables you to better manage the uneven timing of receipt of fees and expenses coming due. It affords you much greater borrowing power because your contingent fees will be valued, and will provide you enhanced flexibility and better terms. Plus, you will only be charged interest on the amount you borrow, while having a significant facility at your disposal that can allow you to respond to new opportunities immediately.
What if you are considering a new business venture? Given recent isolation practices and the new “remote” workplace, you may consider taking your practice in a different direction. One such instance may be to go out on your own rather than continue with your current firm. Or perhaps your firm is the regional office of a national firm, and you are entertaining the concept of an independent practice on your terms and timetable that follows your vision.
These scenarios, too, necessitate not only a solid plan and budget to execute upon, but also a stable and reliable funding source to lend confidence to take the leap to independence.
Important questions to ask yourself include:
How do I handle the “departure” with my current partners?
What attorneys and support staff do I need to be successful?
How will the transition impact my clients?
How much working capital will I need until the collection of fees?
Should I use my funds and/or will my current bank meet my financing needs?
There are so many nuanced considerations that require proper attention to start your practice. A funding company that has intrinsic knowledge of contingent-fee litigation understands the nature of your business and has substantial experience in funding law firm “spin-offs” to help guide you through the process while ensuring you are fully resourced.
Perhaps, however you’re facing a situation — as many firms may, given the COVID-19 crisis and fallout — where you feel it may be prudent to explore a different solution to potential challenges your firm is facing. It may benefit your firm to contemplate the idea of a joint venture with another firm in your network, or even the possibility of being absorbed by a larger, more stable firm. In environments of rapid change, such as those in recent months, all options should be considered because the best solution for your firm and equally as important, for your clients, may be one you hadn’t thought of before.
Financial professionals like Counsel Financial and others can provide your firm with financing solutions from $500,000 to $50,000,000+ specifically tailored to plaintiffs' firms. Whether you are seeking working capital, portfolio financing, single-case financing, post-settlement funding, or non-recourse options, a financial product that can be customized to fit your firm’s individual and unique needs. Moreover, you'll have a team of attorneys (with more than 200 years of collective litigation experience) and financial professionals who have loaned over $1.5 billion to the plaintiffs' bar in the past two decades. Just remember, your firm is more than a practice — it’s a business — and financial professionals can help to make it successful.
Why COVID Should Change Your Culture Forever
By Harlan Schillinger
COVID-19 has given us all a gift. Yes, a pandemic present. And that is a fresh perspective and new opportunity for a major culture shift in how we do business.
In law, there has been a historically inflated sense of entitlement — an ego, a power trip — that often gets in the way of effective communication, real results and the meaning behind work. And that’s just not going to work in a post-pandemic world.
So we can pine for the past. Or we can take this opportunity to learn how to be better, work smarter and build more valuable relationships with the people to whom we deliver legal services.
This Is A Service Business
So, let’s start right there. Attorneys are in the service business. We’re not selling vacuums. And we can’t operate in a vacuum. We are interacting with human beings who need our help, may be at an extremely vulnerable time in life, and are looking to us for communication— not just answers but also compassion.
We cannot take advantage of this position. There is no exclusive law school degree or powerhouse firm that will ever make it acceptable to operate on the assumption that your needs or gains are more important than the people you serve every day.
There is no getting around this fact, and it’s becoming abundantly clear in a global crisis the likes of which we’ve never seen. It’s simple: If you are a lawyer, you must figure out how to be a people person in a post-pandemic world. Why? Because clients are confused and fearful. They don’t know what the future holds. They might be financially insecure, let alone emotionally taxed. And how you interact with a prospective client from the first phone call does matter — now more than ever.
Not only will a more compassionate, communicative approach give new value to the legal services you provide and the life you want to lead, it will quickly distinguish you from the competition. Remember, most attorneys are still operating from a place of privilege. It’s time to tear that down.
Tools For Turning The Process Around
So, let’s flip everything around: Your work as a lawyer is not about you; it’s about the client. If you can stay focused on this undeniable fact, there are opportunities at every turn to change how your firm does business and the talented, tolerant and trustworthy reputation that comes along with it.
As with all healthy functioning relationships, communication is critical. It sets the tone for everything going forward. So you have to get it right the first time. In a time of exceptional upheaval, you finally have an acute opportunity to put the “personal” in personal injury.
Ambassadors Of First Impressions
So, whoever answers the phone, sends an email, meets over FaceTime — every “ambassador of first impressions” — had better be sending a welcoming, empowering message of hope.
But clearly, that looks different in a quarantined world under a cloud of a global pandemic that is completely out of our hands. So forget in-person meetings for now and embrace the technology at your fingertips.
If intake starts with a phone call, don’t make it just a generic, impersonal survey of questions that quickly demoralizes the caller as just another case or acquisition. Make it personal. Teach your intake professionals how to take an extra five minutes to get the details required, but only after they’ve asked the client questions like, “How can we best communicate with you during this process?”
A gesture as simple as this quickly makes the transaction about the client: “How can we help you. Does phone, text or email work best when we follow up?” “Are you comfortable with video conferencing when we need to meet with your team? If not, how can we accommodate so we can communicate best?”
Then, employ the resources to become better than any other lawyer at handling remote video communication, whether it’s on Zoom, FaceTime or Webex. There is protocol that makes these interactions more comfortable for both parties. You will have to look at people in the eyes, up-close and learn to read body language. You will have to adjust on the fly and potentially help people with technological deficiencies. Plan for the new norm and take charge. Setting new expectations will take you further than you thought possible.
New styles of communication also apply internally. Your office may look very different right now and for the foreseeable future. If your team can’t meet in person, how can you continue to collaborate effectively? How will you ensure that your people don’t get so deep in their silos that they can’t get the crops rotated? How will you motivate yourself and your teams thoughtfully, without being a taskmaster or control freak? Who will you promote that best represents the new face of your firm?
Remember, you took the Attorney’s Oath when you became a lawyer: “I do solemnly swear that I will support the Constitutions of the United States, and of this state; that I will honestly demean myself in the practice of law; that I will discharge my duties to my clients to the best of my ability; and that I will conduct myself with integrity and civility in dealing and communicating with the court and all parties. So help me God.”
Not many lawyers read and revisit this pledge after citing it the first time. But the phrases in here — “duties to my clients,” “integrity,” and “civility in dealing and communicating” — are powerful prompts.
Now is an incredible opportunity to revisit the promise you made to yourself and clients. What you do at this pivot point could change your entire perspective, character, financial position, and life.
Remember: “What You Don’t Know, You Don’t Know TM “
Nursing Homes Violated Basic Health Standards, Allowing The Coronavirus To Explode
By Charles Ornstein and Topher Sanders, ProPublica
One by one, toward the end of March, residents of Enumclaw Health and Rehabilitation Center outside of Seattle started coming down with symptoms of COVID-19.
On March 22, residents in rooms 503 and 522 were moved to a wing for COVID-19 patients. Another resident began showing symptoms, too, and was also moved.
In all three cases, their roommates were left in their rooms and staff were given no instructions about using any added precautions to care for them. At least two of the three residents’ roommates subsequently came down with the disease caused by the novel coronavirus.
During an interview with a health inspector days later, a staffer said that “they were told by corporate not to start the roommate on isolation, and continue with surveillance to conserve PPE [Personal Protective Equipment],” according to an inspection report obtained from the Centers for Medicare and Medicaid Services, or CMS. A second nurse gave a similar account.
Enumclaw, the inspectors concluded, “failed to take appropriate actions related to a COVID-19 outbreak. These failed practices may have contributed to multiple residents and staff contracting COVID-19.”
Enumclaw is one of nine nursing homes around the country that federal inspectors have determined have put residents’ health and safety in “immediate jeopardy” for their actions and inaction in stopping the spread of COVID-19. ProPublica requested all records involving such citations since March 1 from CMS. The facilities cited include Life Care Center of Kirkland, another facility outside of Seattle where more than 40 residents died, which became an early epicenter of the virus’s American spread. Others include Aperion Care Chicago Heights, a facility in a suburb south of Chicago, and Advantage Living Center - Roseville, north of Detroit.
Though inspectors have stopped routine visits to nursing homes during the pandemic, they continue to investigate the most serious allegations involving failures to control infections.
Among the problems cited in the reports reviewed by ProPublica: a lack of personal protective equipment, failure to maintain social distancing among residents, inadequate staff, and not acting quickly enough when residents exhibited symptoms of the disease.
Nursing home residents have been among the hardest hit by COVID-19. To date, more than 10,000 nursing home residents have died, according to The Wall Street Journal and the Kaiser Family Foundation, a health care philanthropy. In some states, nursing home residents account for more than half of COVID-19 deaths. The inspection records are a glimpse into the kind of mistakes that could be at the root of the widespread outbreaks occurring in these facilities.
All told, there are about 15,000 nursing homes in the United States, which house about 1.3 million people. The homes offer a high level of care for those who need help with activities of daily living, such as eating, bathing, and getting dressed. They also provide skilled rehabilitation for patients after medical procedures or illnesses. Because Medicaid pays for a substantial share of care at the homes, and Medicare pays for some, CMS sets the standards under which they operate. Many of the homes that received immediate jeopardy citations in recent weeks related to COVID-19 have been cited in the past for violations of those rules.
At Enumclaw alone, 38 residents and 10 staffers tested positive for COVID-19 as of April 2, federal regulators noted. Five residents had died.
Abraham Ritter’s 68-year-old mother, Patricia, has been a resident of Enumclaw since 2004.
“My concern is that my mother has a death sentence being in that nursing home,” Ritter said. “I don’t have anywhere else I can put her. If they’re not going to take reasonable precautions to ensure health and safety, it’s not a matter of if she’s going to catch this, it’s when.”
In a statement to ProPublica, Enumclaw said its top priority is the “safety and wellbeing of our residents.”
“Since the beginning of the pandemic, we’ve continued to work with county and state health departments as necessary,” the home said. “As we identify areas of opportunity, immediate changes are implemented, policies are updated, and education across the company is provided.”
The home said it is following the most up-to-date recommendations on policies and procedures from the Centers for Disease Control and Prevention and CMS. Separately, in its plan to correct the violations, Enumclaw said, “residents at the facility who have been in contact with another resident or staff member with symptoms or became symptomatic are in isolation.”
Nursing home experts said oversight of facilities is critical during the COVID-19 outbreak when most visitors are prohibited from visiting their loved ones, and inspectors are likewise mostly staying away.
“I believe this crisis has overwhelmed nursing homes,” said David Grabowski, a professor in the Department of Health Care Policy at Harvard Medical School. “Nursing homes have struggled with infection control and care quality for a long time. However, this crisis has completely devastated the industry.
“Have certain nursing homes not met CMS guidance? Of course. Is that the major takeaway here? No,” he added. “I think the primary story is that the federal government has largely failed our nursing home residents and their staff. The government’s inaction has led to far more care issues than the COVID-related violations CMS has identified to date.”
At Beaconshire Nursing Centre, a facility in Detroit, an inspector watched a nursing assistant eat lunch while feeding a resident who had COVID-19 symptoms. The nursing assistant didn’t have on protective gloves or a gown, as required in such situations, and her mask was below her chin so she could eat her food. The staffer was immediately counseled by the home’s director of nursing and sent home. A lawyer for Beaconshire told ProPublica that the citations found in the inspection report were based on the actions of just one employee and that the staffer was later terminated.
At The Hearthstone nursing home in Seattle, an inspector watched a nursing assistant without eye protection such as goggles walk into the room of a resident in isolation for suspected COVID-19. The same nursing assistant helped change the resident’s soiled briefs, according to the report. The nursing assistant then removed her gloves, revealing a second layer of gloves. The nursing assistant then fed the resident without washing her hands. The Hearthstone said in a statement that all of its staff were later trained on proper hygiene and use of personal protective equipment. The nursing assistant was “excluded from work” for 14 days based on the possible exposure and tested negative for COVID-19, the home said.
And at Advantage Living Center - Roseville, an inspector wrote a 69-page report concluding that the facility waited too long to send one resident to the hospital despite evidence of a “severe decline in health.” According to the report, the resident eventually died in a hospital from probable COVID-19. The resident’s test results were pending, the report stated. The inspector also wrote about significant understaffing because of employees not showing up to work. One nursing assistant, for instance, was responsible for 41 residents during a shift, and another nursing assistant was responsible for 31. The report said the nursing assistants weren’t able to provide care for all the residents during the shifts.
“It feels horrible,” one of the nursing assistants told an inspector.
A facility executive pushed back against the report, saying the home was contesting it based on multiple errors and inaccuracies. Kelsey Hastings, a partner and chief executive of Advantage Living Centers, said in an email that the nursing home had provided a detailed response to federal officials, including evidence that contradicts the inspector.
Specifically, Hastings told ProPublica, the inspector “did not confirm the number of staff members on the shift, and the nurse who she spoke to was not aware of all staff members on the unit of which we have documentation as well.”
“Our staff has been providing a high level of care under difficult and extenuating circumstances,” Hastings wrote in an email. Hastings would not provide ProPublica a copy of the response, citing privacy laws, and an inability to redact personal information by the deadline.
“We have followed CDC guidelines and have altered guidelines almost daily as a result of constant changes in recommendations. Our other facilities have been following the same guidelines, and surveyors have given no citations and have complimented teams on the processes in place.”
Records show that Advantage Living has been cited for inadequate infection control in the past at the facility. Hastings did not respond to a question about the facility’s prior violations.
Aperion Care Chicago Heights did not respond to requests for comment. Life Care Center said in a statement this month it would “continue to work with CMS to find solutions” to the citations in the report, which led to a $611,000 fine. “We are working hard to address their current concerns in a timely and respectful manner so as to provide our residents the best care,” the statement said.
Organizations that represent nursing homes said they are doing the best they can.
The American Health Care Association, the industry trade group, said long-term care facilities had not received the support they need from federal, state, and local agencies during the COVID-19 pandemic.
“The reality is that many of these citations have occurred because long term care providers are facing an unprecedented situation that has left them begging for testing, personal protective equipment (PPE), and staffing resources,” Mark Parkinson, the group’s president and CEO, said in a statement. “Just like hospitals, we have called for help. In our case, nobody has listened.”
LeadingAge, an association of nonprofit senior service organizations, said that regulators should take a collaborative approach to work with facilities during a pandemic. “By that, we mean working constructively with providers to not only identify infection control issues but problem-solve and meaningfully address issues on the spot,” Janine Finck-Boyle, the group’s vice president for regulatory affairs, wrote in response to questions from ProPublica.
“We do expect our members to comply with all CMS requirements, including guidance issued during this time of crisis,” she added. “That said, CMS guidance has been limited and vague in response to the response to the detailed questions we receive from members on a daily basis. Often times, CMS has referred to CDC guidance, which offers recommendations — not requirements.”
LeadingAge wrote to Trump administration health officials this week to complain about a new requirement that nursing homes report data on COVID-19-positive residents to the CDC or face fines, saying it “will lead to inconsistent and contradictory data, and exacerbate public confusion.”
CMS first told nursing homes to prepare for the coronavirus on February 6, saying, “Every Medicare participating facility in the nation’s health care system must adhere to standards for infection prevention and control in order to provide safe, high-quality care.” It has followed up with additional guidance to restrict nonessential visitors and related to the use of PPE.
CMS also suspended routine nursing home inspections and said it would only focus on situations in which residents are in immediate jeopardy for severe injury or death. It said if inspectors lacked adequate PPE, they couldn’t enter homes.
CMS did not respond to questions about concerns raised by nursing homes and their trade groups.
The challenges facing nursing homes are expected to grow, not only as outbreaks continue to sweep through homes but also as COVID-19 patients are released from hospitals and require skilled nursing care as part of their recovery. Advocates have cautioned about the risk they pose to already frail patients who don’t have the disease.
Richard Mollot, executive director of The Long Term Care Community Coalition, an advocacy group for nursing home residents, said he believes that nursing homes have responded to the crisis poorly overall, “but we do hear of some nursing homes that are truly working to honor their legal and moral commitments to residents and families.”
“For the most part, we see facilities that failed to take steps in anticipation of the pandemic (especially after it hit the Kirkland, Washington facility), nursing homes that are taking in new residents even when they have woefully inadequate staffing for their current residents and, even, numerous reports of facilities discharging current residents so that they can take in COVID-19 patients (for whom there is considerable reimbursement),” Mollot said in an email.
Back at Enumclaw Health and Rehabilitation Center, the nursing home outside Seattle, the citations went beyond failing to take proper precautions after some residents began displaying COVID-19 symptoms.
The facility “failed to operationalize their infection prevention and control program to provide a safe, sanitary environment, and to help prevent the development and transmission of communicable diseases and infections, in particular COVID-19,” inspectors wrote. And it failed to immediately notify the state Health Department about the illnesses there.
The problems were on full display when the inspector arrived on March 26. The administrator escorted the surveyor down the hallways, past ten resident rooms, through resident care areas, to a nursing station in the 500 unit, the epicenter of the facility’s COVID-19 outbreak, to be screened for a fever. The only thermometer available at the nurse’s station was oral, so the surveyor had to remove their facemask.
When asked about the use of an oral thermometer, the administrator said, “That’s all we have.”
In its plan of correction, the home said it is now in close touch with the state Health Department about infections and has moved a thermometer to the facility entrance to check visitors there.
Ritter, whose mom is in the home, said the COVID-19 crisis has simply exacerbated long-known problems with the nursing home care industry, specifically around staffing.
“Low-paid employees are stretched, even before this crisis, far too thin,” he said. “They didn’t have enough employees doing enough work.”
This story was originally published by ProPublica.
Meat Packing Plants Become Hotbeds For Coronavirus
By Martha Rosenberg
Smithfield Foods, the nation's largest pork producer, has closed its Sioux Falls, South Dakota slaughterhouse after at least 80 workers tested positive for the COVID-19 virus.
By last week, four meat workers had died from the COVID-19 virus reported in the New York Times. Three workers from Tyson's poultry plant in Camilla, GA died as well as one worker at JBS USA's Greeley, CO slaughterhouse. Tyson had already closed its Columbus Junction, IA pork slaughterhouse, and JBS had already closed its Souderton, PA slaughterhouse reported the Wall Street Journal.
Pennsylvania-based Empire Kosher Poultry temporarily closed its doors because of COVID-19 threats, and the huge chicken producer, Sanderson Farms, asked employees at its Moultrie, GA slaughter operations to stay home. Slaughterhouses have also experienced walkouts, says the Wall Street Journal.
"Wet markets" in China where exotic wildlife is traded and eaten caused the current coronavirus pandemic. Dr. Anthony Fauci of the White House coronavirus task force says he is incredulous that wet markets are still open. "It boggles my mind how, when we have so many diseases that emanate out of that unusual human-animal interface, that we just don't shut it down," he said. "I don't know what else has to happen to get us to appreciate that."
Big Pork Has Bigger Threats Than A Lack Of Demand For Bacon
In addition to workers sick from COVID-19 and closing of kill lines, Big Pork is braced for the arrival of two other diseases from China that are currently as underreported as COVID-19 was — until it spread to every continent. Have you ever heard of African swine fever (ASF) and Severe Acute Diarrhea Syndrome Coronavirus (SADS)? You will.
By the end of last year, half of all of China's pigs and a quarter of the world's pigs had died from ASF, which has spread to Vietnam, Cambodia, Laos, North Korea, the Philippines, eastern Europe, and Belgium. U.S. pig farmers had hoped to capitalize on China's disappearing pigs through exports, but fear they will get the disease too.
“It's not a question of whether ASF reaches American shores, but when,” wrote Thomas Parsons, professor at the School of Veterinary Medicine, and Scott Michael Moore, China Program Director at the University of Pennsylvania, in the Hill last year. "Should the virus enter the U.S., your future as a pork producer would radically change," warned Pork Business.
U.S. pork producers are also bracing for Severe Acute Diarrhea Syndrome — a coronavirus originating in China like COVID-19. They are already testing for it. In 2018, SADS had already killed 24,693 piglets on four Chinese farms.
SADS is similar to the porcine epidemic diarrhea virus (PEDv), which killed one-tenth of U.S. pigs in 2013 and 2014, but Big Pork was able to keep hidden from the public. The scourge was so bad the Humane Society of the United States (HSUS) caught a Kentucky farm that lost 900 piglets within a two-day period feeding dead pigs to other pigs to induce "immunity" in survivors.
Whether wet markets or U.S. Big Pork, coronaviruses have become our Pandora's Box.