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Joining Sullly on the Bench

I am publishing this blog along with another one that I wrote a few weeks ago called “The Revolution has been Incorporated.” I had held back on printing The Revolution because it seemed to smack of the cynicism that I had begun this blog to counteract. Then I saw Clint Eastwood’s new movie Sully and I knew how to finish the piece.

 Sully is about the January 2009 “Miracle on the Hudson” when pilot, Chesley Sullenberger, made an emergency water landing of an Airbus 320 with 155 persons on board–after losing both engines because of a collision with a flock of Canada geese. The plot is centered on the investigation of the incident by the NTSB (National Transportation Safety Board) and the possibility that the investigation could find “pilot error” because Sully had failed to safely land the plane at an airport. NTSB computers digesting the flight data initially determined that Sully could have safely returned the plane to LaGuardia rather than gliding into the frigid water of the Hudson.

The tension of the plot is similar to any courtroom drama and it plays with many perspectives. Was Sully a hero or a fool? Were the investigating officials good cops or bad cops?

In order to make the film into the triumph that Eastwood delivers, the procedures of the NTSB over a period of 18 months were scrunched into a few scenes and the investigators were made to look like menacing villains. The real-life protagonist Sullenberger, who had some control over the production, insisted that the names of the NTSB officials be changed because the portrayal was inaccurate. Sully felt that the investigators were not his adversaries and that they, like he, were just doing their jobs. Proud of his own competence, he remained respectful of their devotion to their duty. In real life, there was mutual respect throughout the investigation.

Disrespect is the very sin that Eastwood uses to turn the audience against the proceedings of the NTSB. The members of the panel, especially the female expert, come across as hostile, an attitude that the New York Times review said is not apparent from the transcripts of the actual hearings. But Clint Eastwood has often thrilled us with a lone hero against the mob. His famous character Dirty Harry squares off against a roomful of robbers and challenges the survivor with his oft-quoted “Make my day.”

Since many of us are feeling insignificant in the eyes of a powerful ruling elite, Eastwood’s Sully as played by Tom Hanks is exactly the champion we need: competent, humble and . . . right. We are too frequently up against bullies who not only lack tact but also flaunt their authority even when they are wrong. Cops and lawyers can be rude and intrusive. Partly it is because both cops and lawyers need to be more penetrating and demanding than the rules of ordinary courtesy would allow. Truth may elude us unless we chase it hard. But it is cynical to assume that a person is lying – and it has been turning out badly when a cop presumes a person is a criminal or a lawyer thinks a witness is stupid.

The perspective that I call “cynical distance” is not available to guys like Sully, one of the players on the field, or to his copilot who sits on the bench next in line and equally at risk. Cynical distance, like clinical distance, is a step back in order to assemble new data, seeing what patterns are emerging. But cynical commentators already think they know what is happening, so they jump in ahead of more objective processes. A cynic is quick to see a pattern that is repetitious, a motive that is greedy, a social movement that is duped by its leaders. From the cynical commentator’s perch, the erstwhile performances of actors, athletes, players, and politicians are doomed to inevitable failure. Commentators who have themselves played the game are more likely to maintain hope. Truly intelligent observers will notice life-affirming opportunities and extraordinary human abilities.

Clint Eastwood’s movie showed me that true heroism comes from staying in the game and giving it our best shots. Sully was working with a well-designed aircraft and a well-trained crew. He could only hope that his own competence was sufficient, that he was prepared to take on the novel and unexpected. That is the “human factor” that served him.

So how did the experience of this movie allow me to finish and publish the Our Revolution piece? It was the cynic in me who noticed that Our Revolution as a corporation is going to be very different from the grass-roots political movement that sprang up around Bernie Sanders. My inner cynic predicted that this hierarchical arrangement would disappoint the folks who really expected change. But after meeting Sully, I decided to look more respectfully at the American people, to trust in their competence, to wait until the young corporation called Our Revolution announces its mission and undertakes to serve us all. To whine that a corporation concentrates power at the top is like complaining that human beings think too much. Is the choice to quit thinking? It is not pre-ordained that Our Revolution will fail.

As much as Our Revolution might like to dig in to fix the political system, however, the most important work it has before it is to develop an organizational structure that utilizes the young talent it has attracted by becoming a lithe, living organism, an empowered network of people linked together by values different from the usual corporate greed. Greed needs to be replaced by our united vision of saving our single shared home planet.

At the end of Sully, one of the NTSB panelists remarks that he had heard many cockpit voice recordings before but it was the first time that he had listened to one with the pilot and copilot alive and sharing in the experience. To Sully, his own was only one of 155 lives that continued past that February 2009 morning. But every one of those people survived because a captain took control of a hierarchical system that he knew and understood.   We cannot discredit corporations simply because they have made poor decisions . . . we must hope that the human organizations we have inherited can become lithe, responsive and able to carry us to safety.

The Revolution has been Incorporated

The revolution that Bernie Sanders envisioned during his campaign has now become the brand for a corporation called “Our Revolution.” In order for the revenues of Our Revolution to be tax exempt, Bernie Sanders and his team created a nonprofit entity subject to the rules of the Internal Revenue Service as a “social welfare” organization. And, in order for Our Revolution to be an entity at all, the organization had to file articles of incorporation and corporate bylaws somewhere.

Is incorporation a slippery slope of counter-revolution?

Forming an entity that is going to have a bank account and make a concerted effort to achieve lofty stated objectives may seem like an activity that people could do quite simply. But media scrutiny soon redirects the conversation away from ideas. Controversy over ideas will never get the kind of press attention that money, scandal and personalities enjoy.

The challenge of Our Revolution is not whether we recognize the need for political change; the stumbling block is that the chosen medium for change is to establish a top-down corporate structure regulated by the IRS and typical corporate bylaws.

Just as every successful political campaign that began with crying out for change ended up becoming the establishment whose power is distrusted, a “revolution” that aims to support candidates in a political election will not change much but the personalities in office. More importantly, adding money into any recipe for human interaction begins a fermentation that can quickly change delicious sweetness into a potent inebriant.

Sanders raised an unprecedented $228 million in the course of his presidential campaign. Of course, they spent it. Now that the Sanders campaign is over, Our Revolution is aiming to become a permanent organization, a perpetual force that will carry on Bernie’s principles and ideas—and continue to raise large sums of money. If it is the successor to Bernie’s fund-raising successes, those corporate bylaws are going to matter. In time, they may be all that matters.

How long can Bernie’s political ideas stay fresh? His entire political lifetime has shown philosophical consistency and his ideas are a century old. But he has never before been the leader of a grass roots movement. The elusive hope that a bottom-up organizing strategy can fit people into a top-down corporate structure has been dashed over and over again throughout history. Our Revolution, once it is a rich and powerful corporation, may be destined to fail as soon as it succeeds—because success will bring it wealth and its leaders power and celebrity.

Remember Lord Acton’s adage about power corrupting? Anyone who has held the reins of power, if only for a moment in girl scouts, understands that authority to grant favors will likely lead to resentment on behalf of the disfavored and corruption on the part of the leaders. Even if these anticipated chapters do not develop, success itself creates a perception of power broking.

Bernie Sanders is passing the baton to a prestigious board of directors. The whole gestalt will change as reporters interpret Our Revolution’s corporate mission and speculate on its tactics of fundraising and resource allocation. The grass roots beginnings will mature to a new establishment of political power.

Look at what actually happened with the Clinton Foundation. By both internal and external measurements, this charity has been a remarkable success. No one seems to question whether or not it has achieved its stated charitable goals, and no one gets much traction from criticizing what it set out to do (from the Foundation website):

What irks the media critics is that the foundation’s success has given the Clintons personal access to wealth and power. Reporters treat their nonprofit entity like any other business venture of any other candidate. They look at Hillary’s meetings with donors as meetings with investors. They gloat over discovering connections with other nonprofits and wonder about conspiratorial plots as though the purpose was price fixing among members of an oil cartel.

I do think it is possible for corporations to achieve good and great things. Without formally organized NGOs, no international charitable purposes would ever be met. No methods of funding can be as efficient as responsive NGOs. No method of organizing can be simpler than U. S. incorporation. No oversight to stop corruption is a thorough as the IRS. But keeping the message uplifted requires better cooperation from the American press corps.

Journalists think they look smart when they dish out dirt. We watched as they hounded Jackie Kennedy and Princess Diana. We feel relief when they give certain humble characters a bye like Warren Buffet and Michelle Obama. As Our Revolution begins to receive millions of donations from everyday people, let us hope that the leaders of Our Revolution can confront the bullies of the press who earn paychecks from some of the least progressive of our institutions. And let us believe that corporate leadership is not always a one way street to corruption.

 

Detecting Snake Oil

My mother was a fastidious housekeeper so my father and brother – and the dog– spent a lot of their time in the basement. Dad did the paternal side of housekeeping, mending ripped lawn chairs, jerry rigging broken lamps, refinishing antiques. Brother Bob listened to the A.M. radio on the big walnut console that Dad had refinished. And for a while in his short life, he ran a business.

There was a section of their man-cave surrounded by metal shelves where Bob organized his inventory of Amway products. He spoke frequently to his upline sponsors, a cheerful extroverted couple so unlike our small subdued family. He had one “downline,” a college friend who was thinking seriously about the seminary. He read motivational literature, listened to cassette tapes, and frequently dusted his inventory of boxes and bottles, adding more as Amway developed new products.

Back in the 1970s, I thought the Amway marketing scheme was predatory. Its appeal to ordinary people seemed to suggest that their family, friends, fellow congregants, and people-one-may-happen-to-meet would all fall into line to sell necessary everyday household products. Before long, an interconnected network of grateful uplines and eager downlines would surround the disconnected, depressed and lonely person living in his parents’ basement. Thankfully, I never shared my opinion with Bob. I had left for college while Bob was in high school, and the family was spared the talent for ranting that college quickly developed in me.

Decades after Bob’s death at the age of 29, we were still using the Amway polishes and potions from his shelves. I have yet to use up the silver cleaner, since I don’t often break out my inherited sterling cutlery. Over time, as I have dipped into his inventory, I have felt my cynical heart soften. The business myth Bob had bought heart and soul was an optimistic leap of faith, and faith is good. Bob truly felt he was participating in the American Dream. Amway had a business plan that could not fail if he stuck at it, because he believed that his faith was shared by a multitude of others.

Successful salesmen understand consumer vulnerabilities.  When the products we sell are legitimate and reasonably priced, our effectiveness comes from knowing all the “apps,” (the applications) for our products—how they do what our customers want and need to get done. I include myself among the sales force of the world in homage to my brother and his Amway tapes.

What I have sold throughout my legal career are answers to life’s persistent questions. Legal documents are like Amway cleaning products: they are not at all effective on the shelf. They require wise use. A will can only transfer title to assets that were the result of earning, saving, investing, and wise spending. I did not sell any apps for building an estate. I did not sell apps for managing a business. As a lawyer, my apps were about avoiding liability.

But lately “avoiding liability” has begun to smell to me like the snake oil that so many of the Amway imitators were marketing. What lawyers are usually selling when we tap into folks’ fear of being sued is not an avoidance of a lawsuit but a way to mount a legal defense. A defense on behalf of your will, trust or limited liability company that may require the lawyer to show up in court for two or three years.

What ordinary people need are the kind of asset protections that make it so very hard to mount a lawsuit against a big corporation and nearly impossible to sue the government. Governments get by because they have passed laws that make them immune from lawsuits. Corporations get by because their behavior does not stem from the same place that real people think and act. (No one on Wall St. could be found who intentionally, or even negligently, decided to wreck our economy in 2008.)

I will leave it to the politicians to figure out how to redefine the criminal codes so that big money cannot duck responsibility for its excesses. For my part, I am setting out to sell small shell companies to ordinary people and encourage them to protect their assets the way that big companies do. Next time, I’ll talk about how New Mexico LLCs can clothe personal assets in the cloak of armor that corporations enjoy. I promise you it is a legitimate product.

 

 

FLIGHT FROM FIGHTING

I made what I hope will be my last appearance in Court on Thursday. After months of tiresome struggle, the judge ruled in favor of my clients. They were relieved, grateful and humble in their victory. No one said “We won!” in that crowing way of high school sports.

Yet I found myself saying “we won” as shorthand in response to people’s question of “How did it go in court?” I did not speak with the bouncy delight I enjoyed when I was a cheerleader and some folks thought it strange that I was drained of energy rather than thrilled. I sadly believe that if the young opposing counsel had prevailed, she would have chalked it up as another victory in her playbook. And I wonder which of my winning tactics of being straightforward, sincere and plainspoken she will emulate in her next encounter before this judge.

I never wanted to become a trial lawyer. I tried my best to avoid court. I worked hard to help my clients steer clear of the kind of polarization that drives people into lawsuits. I am a problem solver and it seemed to me that the biggest problem we face as Americans is the locked-in war mentality promulgated by the news media and the marketing industry. What is so wonderful about victory?

Sometimes I feel defective because I do not love to win. My defect is, perhaps, hormonal. Oxytocin produces the “tend and befriend” response to challenges that also stimulate the “fight or flight” response. Women make more oxytocin, especially during childbirth, and it helps us sustain and endure. Indeed, when my choice is to stand my ground and fight, I often feel it as a settling into a deep foxhole for a long battle while others are scampering around in frenzy.

I just saw the movie The Big Short and, to its credit, it drove home the point that people who gamble with other people’s money should not celebrate when other people’s money is lost, especially when the losers did not even understand that their economic position was in play. Collateral damages radiate in dynamic rings of concentric social circles around the site of every battle that impacts the economy. Even the villain has innocent minions and children.

How do we avoid conflict? We can’t. The leading estate planning attorney in Albuquerque when I was just starting out was John Laflin. Mr. Laflin quite generously offered a seminar every year where he passed out his updated and revised forms for anyone to copy. His trusts were long, complex, impenetrable documents because he drafted new provisions that resolved, in advance, every dispute that he had seen come up between the IRS and taxpayers, between beneficiaries and trustees, between family members of different generations. I chose, instead, to write my own simple 12 page trust document. I figured that the easier way to avoid disputes is to create clear communications accessible to people in language they understand.

A serious flaw in my straight talk conflict-management strategy is that clear communications often point out risks that discourage undertakings. Last Tuesday I attended a legal seminar about forming Limited Liability Companies. There were three presenters: a litigator, a patent attorney and a “transactional attorney” — the guy who writes the formational documents and agreements. The transactional attorney said that he was often despised as the voice of doom and gloom because he is the person who has to anticipate what might go wrong in the business that the potential partners are trying to create. He said he feels okay if he discourages folks from taking risks that they might not have noticed without his help.

I, too, am a transactional attorney. But I am not the voice of doom and gloom. I do not believe that people learn well when they are afraid. I think that smart people anticipate and plan and train for the times when the going gets tough. Lawyers who fear liability for helping with risky ventures bore me.

And yet lawyers who caution against gambling with other people’s lives and livelihoods are a blessing to the world. Perhaps that is the role that corporate lawyers should play daily. Litigation should have never become a game enjoyed for sport or for the ego gratification of the winning players.

Ethel and Lucy will Live Again in Legalese

The periods of percolation that in my twenties I called “writer’s block,” always pass. Like a good story, they always have a surprise at the end. In fact, it is the surprise that makes the story end.

When I decided to go to law school, I was opting out of a poor-starving-artist lifestyle. I redirected my writing talents toward making clear, lucid legal documents. For thirty years, I was regularly thwarted in my hope of finding beauty, symmetry and human connection in wills, trust and contracts. The final straw came from an innocuous purchase of software that “automated” the document production I had struggled with for years.

The software was the lawyers’ professional knockoff to Legal Zoom and it cost much more.  But, with the entry of a few names into a data base, it produced an attorney-made revocable living trust, a will, a Power of Attorney, an Advance Health Care Directive, a HIPAA waiver, a Declaration of Trust, a Memorandum of Trust, a Disposition of Personal Property, along with cover letters, explanations for clients, and, of course, an index to compile all of these documents into a three ring binder.   I used this system for the final year of my practice as my business coach advised, and spent the additional hours necessary to explain all of these ponderous documents to the dear clients who, of course, could not understand them by reading them. The coach was right: it was a much more lucrative business plan, lowering my overhead for support staff, creating more client contact in “billable hours” and keeping me updated about changes in the law. Except that I was miserable.

Whereas some other “whereas-ing” stuffed shirt might feel empowered by decoding for a client “a corporate trustee shall be entitled to receive, out of the income and principal of the trust fund, compensation for its services hereunder to be determined by the application of the current rates then charged by the trustee for trusts of similar size and character,” it brought me no joy. I had thought I could improve the writing and communications between lawyer and client.  But I found myself explaining that this sentence in legalese meant simply that a bank could charge whatever rates it could get through the regulators. I hated that I was selling this type of prose as my work product—and it hurt me that I was setting people up for eventual exploitation by an ever-greedy financial system.

So I am not doing estate planning any more. Instead, I am creating domestic holding companies to protect the assets of clients, not from taxes and legitimate creditors but from the lawyers, financial professionals and scoundrels who are on the prowl. And in the process, my clients’ estates may be preserved for the next generation.

My big breakthrough came when I read the following quote from The Donald: “The Oval Office would be an amazing place to negotiate. It would command immediate respect from the other side, immediate understanding about the nation’s priorities.” [NY Times 5/5/2016 by Patrick Healy]. Trump, a brilliant power monger, has manipulated himself into command of a real estate empire and The White House is the next venue where he intends to thrive and expand his influence.  He needs a heavy crown to hold down his hair.  Maybe he’ll fashion a golden scepter as well.

I walk and drive around a city that reflects the murderous militarization of America and it pushes me toward depression and despair. The election of the well-travelled Hilary Clinton offers no real prospect of relief in a polarized, war-torn world. I will, of course, work against The Donald. But I am going to follow his lead and think of winning more real estate on the chess board. He wants to be king. I would prefer not to be his pawn (or his knight, bishop or queen). I’d like to be the jester who survives by my wits.

My legal writing now has an attitude. Still it does the job, but the language is true and the purpose is stated: “The ownership of this company is disclosed to the Internal Revenue Service and not to any other person.” And when I write these documents, I use interesting characters as placeholders. My most recent template is “The Lucy and Ethel Operating Agreement for the Ricardo Cuba-America Limited Company.”

AFTER THE REVOLUTION

I wish I could show you the iPhone video my friend Diane took of her grandkids. They are triplets who toddle and, in this episode, they invent a game of bringing Diane rocks from alongside an Albuquerque sidewalk. The kind grandmother accepts each of their gifts and gives each something in return. Very quickly there arises competition, with innovations and permutations. The girl kept testing her strength, bringing larger and larger rocks, which Diane would replace with money-sized pebbles.

 

I remembered scenes from Mandela where the imprisoned Nelson Mandela was doing hard physical work that his jailers meant as punishment but that could more philosophically be understood as the plight of humankind. What might have broken another man actually gave Mandela greater resolve. He was a person whose course had been set in his youth and whose commitment to justice deepened in exile. He was the first to note that his story could have ended differently.

Bernie Sanders was a young radical who has spent his entire adulthood inventing ways to bring a better life to the disempowered. Today he has started a political revolution. While the pundits smirk, believing that mere words will not change much (since their own well-articulated opinions seem seldom to earn even a round of applause).

 

The millenials whom Sanders has ignited are not the uneducated, undisciplined, impoverished masses of Karl Marx’s nineteenth century. They may be broke because of it, but they have done their study of history. They may be a diverse mix of races and cultures, but they are in strategic communication. They may lack financial capital but they are starting entrepreneurial ventures together that prove the social potential of a free economic system. Just how free the rich allow them to be may become a question, but the sons and daughters of the oligarchs are among them.

 

We are living in the aftermath of the Arab Spring, when repressive governments were toppled. Without an alternative structure or a strong legislature in place, anarchy quickly gave way to theocracy, murder and social displacement. Today, refugees are seeking the safety of established democracies even as our democracies are being threatened from within by angry citizenries.

 

Whether the developed world regresses toward fascism, environmental depletion, interpersonal violence and intertribal hatred will depend on the vision, tenacity, and cooperative intelligence of the young people experiencing Bernie’s political awakening. Can they re-form government? Can they spend their adult lives with singleness of purpose like Mandela? Can they be satisfied with smaller victories over a long time like Bernie Sanders?

 

Although I pose these questions as though the answer lies in personal qualities and moral uprightness, my own social experience tells me that true change happens in very intimate relationships. People scoffed at Gloria Steinem for suggesting that young women went where young men went. But our life paths are made with comrades. Perhaps both young men and young women turned away from Hilary Clinton because of their mutual attraction to a stronger message of hope. We do tend to trust whomever the loved ones we trust are trusting.

 

When I was 20, I did not trust the cynics. When I was 20 and angry, I did not respond well to being mollified, corrected, placated or ignored. When I was 20, I was right and I knew it. All that has changed about me is that I now understand that there are a lot of other right answers.

 

A JOURNEYMAN’S PERSPECTIVE

My father was a plumber. He was not a philosopher, but he had a model for how things were supposed to work. It was a mechanical model that understood that every element of a good working system has a function, a task to perform, and that the smooth functioning of the whole depends on the maintenance of all of the parts. He thought we all should be paying attention to keeping ourselves fit to work within the system.

 

I would dare to guess that many other fathers taught similar lessons to their kids. My father’s generation fought WWII and became accustomed to well-oiled machines and well-managed organizations. When they began their own families, they did not enjoy listening to arguments among their kids about who was right; they wearied of the job of keeping all those little egos appeased. Yet these good dads often went off to their jobs and did battle every day, motivated by a belief that competition was at the heart of progress. Doing battle makes you sharp, they thought. Legal arguments flush out important principles, they told us. News programs made it clear that there is evil in the world and mysterious forces on the dark side.

 

This reduction of complexity to a set of either-or decisions is not real. The stories that perpetuate dualistic thinking are not true. The planet that supports us has created great diversity. The imaginations that our minds came equipped with can envision creative solutions. Teams learn to work together and teamwork offers a greater variety of plays. Most importantly, using up valuable energy trying to herd human beings into camps on opposite sides of a fence is a waste of time and bound to fail.

 

The model for how a legal case is decided requires the presentation to a judge of arguments on two sides of the matter. The model for how legislation is passed requires debate for or against the proposition. The model for how to resolve family conflicts is, more often than we like to recognize, the flip of a coin. What father would choose any of these methods to govern his kids? What father even has the recognized authority to govern these days? This is not how any of us learned to behave in our families or in our schools, but our workplaces are more and more governed by lawyers trained in this either-or system.

 

So lets take a good look at how our fundamental organizations are actually structured. Lets take stock of how decisions are actually made. Let’s make some maps and mechanical drawings and let law grow out of the study.

LAW AND THE PERSONS IT CREATES

When I was in my first term of law school, I commented frequently about how expensive some of the Supreme Court cases we were studying must have been. One professor singled me out as the kind of politically-minded woman who often goes into “poverty law.” I informed him that I hoped to represent the interests of the middle class. Back then, there was a middle class. Back then, there were still job openings to serve Main St. rather than Wall St. But my career in service to middle income clients is drying up.

 

Even though we listeners will distinguish between the output of a corporate marketing department and the spoken views of a pedestrian headed for the polls, the justices of our Supreme Court ruled in the recent Citizens United case the two should have similar constitutional rights of free speech. And the justices may be right, even though the result is that they gave the privileged rich guys a bullhorn.

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YOU CAN BRING A COURT TO ORDER BUT YOU CANNOT MAKE IT THINK- DO COURTS REALLY HELP THE SENILE?

Every day in America the epidemic of dementia brings ordinary middle class families suddenly into contact with courts and lawyers. In New Mexico, these guardianship and conservatorship matters go to the same district courts that decide criminal matters and manage complex civil litigation and the proceedings are subject to the same rules of evidence used in trials. So thousands of dollars, perhaps tens of thousands of dollars, can be spent before the bewildered elder is fitted with a guardian and, perhaps, a conservator.

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ALWAYS ON THE RECORD

No one took a poll of my graduating law school class, but I do not think I would be wrong to suppose that most of us thought that we were going to go out into the world offering legal information, advice and advocacy.  Some, like me, wanted to write.  Others wanted to try cases.  

 

We began our practices inn 1984 just as word processing took hold in office systems and we hired secretarial staff ready to operate computers, answer telephones, and type from dictation.  I had trained in Iowa where my classmates were setting up Main St. law offices and, even though I had moved to New Mexico, I pretty much did the same.  

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