While we rush around searching for last minute Christmas presents and securing the last of the tamales, some few Americans are still fighting their wars. They fight their wars right here in San Antonio at the excellent Army hospital at Ft. Sam Houston. Gunnery Sergeant Eden Pearl was such a warrior. On a patrol in Afghanistan in 2009, his platoon rushed out of an Afghan village. They decided to avoid an unnecessary gun fight with some local fighters. The convoy hit a huge IED. The explosion sent GySgt Pearl’s HUMMWV 30 feet into the air. The truck was engulfed in flames. He survived the blast. But, he suffered Traumatic Brain Injury and burns over 90% of his body. Later, he lost both legs and an arm due to infection. The interpreter and the driver in the truck were killed. For the last six years, GYSgt Pearl has battled his wounds in treatment and a series of operations and skin grafts. He was said to be the most severely wounded service member to survive.

Those who knew him say he was a legend among the fraternity known as Marine Corps Forces Special Operations Command (MARSOC). He was tough and fearless. Yet, he was also devoted to his family. With his numerous skull tattoos, muscular physique, and red beard he grew during deployments, he was known as the “Viking Warrior.” He was the classic Gunny – he made the Marines around him better. He raised their level of preparation and competence. He trained the way he fought: with attention to detail. He joined the Marines from Monroe, New York in 1994. As one staff sergeant who served under him said, “He had this aura where you just wanted to follow him. You just wanted to please him.”

Even when his HUMMWV was in flames in Afghanistan and GySgt Pearl was under the burn blanket, he was asking his soldiers about tasks that needed to be accomplished. He was always the leader looking out for the welfare of his men. His call sign was “Mosh Pit” from the area at concerts where fans dance.

In the past six years, he was moved from hospital to hospital for his next level of treatment. He ended up here in San Antonio at Ft. Sam. The Gary Sinise foundation and the Brothers in Arms foundation gave a home to his family here in the Alamo City. He passed away a couple of days ago. He was 40 years old. He could barely communicate due to the TBI. While you rush around this busy day, take a moment to silently thank GySgt Pearl for his service.

See Washington Post report.

One of the essential tools in any lawsuit or EEOC charge is the affidavit. The employee typically will sign a couple of different affidavits at various stages of a lawsuit. The affidavit is supposed to represent the witnesses’ testimony. An affidavit should mirror the employee’s actual testimony.  But, the rough draft of an affidavit is often prepared by legal personnel, whether it is the Equal Employment Opportunity Commission or the employee’s own law firm. So, some affidavits, if not closely vetted, sound wrong or they are just flat inaccurate. It is up to the witness to ensure any statement is accurate before signing.

In Green v. MOBIS Alabama, LLC, No. 12-CV-277 (M.D. Ala. 3/25/2014), we see what can go wrong with the process of preparing an affidavit. Noria Green applied for unemployment benefits after she was fired. She was denied benefits. Assisted by an associate attorney with Haynes & Haynes, Ms. Green appealed the denial. There was a telephone hearing on Dec. 16, 2011. Ms. Green had been accused of forging a doctor’s notes. At the Dec. 16 telephone hearing, the employer still had not provided the employee or the agency a copy of those allegedly forged notes. The hearing officer postponed the hearing to an unspecified date. Later, the agency sent notices that the hearing would re-convene via telephone on Jan. 4, 2012. The notice was sent in late December when MOBIS’ plant was shut down. So, MOBIS did not receive the notice in time to appear for the telephone hearing.

During the hearing on Jan 4, the hearing officer tried three times to contact MOBIS , but could reach no one. Even though MOBIS was not present for the hearing and they still did not have the alleged notes, the hearing officer found in favor of the employee, Noria Green. The notice sent later about the hearing indicated that MOBIS had attended – even though MOBIS did not attend. The state unemployment agency erred.

Later, in the resulting lawsuit, the employee’s firm argued that the employer was judicially estopped from arguing the doctor’s notes had been forged. The employee via Haynes & Haynes argued that the issue had been previously addressed in the unemployment hearing. Attached to the plaintiff’s response to the motion for summary judgment was an affidavit signed by Ms. Green. The statement claimed that MOBIS had attended the Jan. 4 unemployment hearing. At the time of her response, there was no transcript of the unemployment hearing.

The defendant submitted an affidavit from the MOBIS representative saying he had not been present at the Jan. 4 hearing. He also referred to the newly acquired audio recording of the Jan. 4 hearing as proof. MOBIS provided a transcript of the hearing showing that MOBIS had not attended the Jan. 4 hearing. The plaintiff via the firm of Haynes & Haynes moved to strike this new evidence as untimely. The court refused to strike the evidence and granted summary judgment. It pointed out that Haynes and Haynes law firm was present for the Jan. 4 hearing and should know the affidavit of Mr. Green was false. The court found that Plaintiff’s lawyer misrepresented facts to the court.

MOBIS then asked for attorney’s fees as a sanction, arguing the plaintiff’s law firm had attempted to perpetuate fraud on the court. I did not see the attorney’s fees request, but typically that would involve tens of thousands of dollars.

Ms. Haynes responded that she relied on the notice sent after the hearing. That notice indicated that MOBIS had been present for the Jan. 4 hearing. In the court’s view, however, Ms. Haynes, the lawyer, changed her story about the false affidavit. She tried to argue that MOBIS had an opportunity to litigate the issue at the initial Dec. 16 hearing. She argued other factual issues. But, said the court, in the end, Ms. Haynes’ principal argument was that under agency rules, there is actually only one unemployment hearing date. Any other hearings are considered as part of the one hearing. The court was not persuaded by this specious argument.

At the oral hearing on the motion for sanctions, Ms. Haynes indicated the real problem, said the court. She first became aware that MOBIS had not been present at the Jan. 4 hearing when she read the court’s decision on summary judgment. In effect, the lawyer admitted she had submitted an affidavit without making sure the affidavit was accurate. Ms. Haynes had the audio recordings of the two unemployment hearings. But, said the court, she did not listen to them until after summary judgment had been granted. The court found this incredible.

I don’t know. If the witness agrees to an affidavit, is the lawyer responsible? Perhaps, the court reasoned that whether MOBIS actually attended the Jan. 4 hearing was less a factual issue than a legal issue.

In any event, the employer admitted it did not comply with Fed.R.Civ.Pro. Rule 11. It did not provide the motion for sanctions to the Plaintiff before filing it. That is, it did not offer the plaintiff the “safe harbor” option by which sanctions could be avoided. Therefore, it is barred form seeking attorney’s fees. The court could still award sanctions for unethical behavior. The court noted that eleven attorneys attended the Rule 11 oral hearing. Much effort was invested in the motion for sanctions when the two parties simply refused to talk to each other.

So, the court ordered the parties’ respective lawyers to share two meals together. They would each pay their own expenses. The court imposed a 30 day deadline in which to file a certification with the judge indicating they had done so.

Or as my judge in rural Louisiana would say, “Let’s agree everyone in this room is a sunavabitch and go on from there . . .” See decision here.

Now, they want Bowe Bergdahl to face a general court martial. The investigating officer had recommended a special court-martial instead. The level of punishment is higher at the general court-martial level. The “convening authority” (i.e., the general responsible for the investigation) overruled his investigating officer. The general appointed the investigating officer, so normally, the general would accept the recommendation. But, with so much publicity, this is not a normal case. I previously wrote about SGT Bergdahl here and here. See CNN News report.

I think this decision is unfortunate, but can see how some officers would see his situation as requiring something more serious. I think he was less than intelligent in his actions, but not deliberately avoiding his soldierly responsibilities. Now, it will be up to a military tribunal.

National Public Radio and Propublica have been running a series on worker’s compensation systems in various states. One such state is Texas. Billy Shawn Walkup worked for Tysons Foods in Vernon, Texas. Tyson is self-insured, meaning they do not carry worker’s compensation insurance. Instead, the company itself pays for the medical care of workers injured on the job. Billy Shawn was one such worker. He fell on wet stairs at the Vernon plant in 2011. He sustained injuries to his back. About two weeks after the fall, a manager approached him with a waiver and asked him to sign it. The waiver would prevent any lawsuit against Tyson. Wanting to protect his job, Billy Shawn signed the waiver. He continued working with restrictions. The pain worsened and he missed too many days. So, the company fired him. Tyson, did, however, continue paying for his medical care for another year.

But, then his doctor determined that he had multiple disc potrusions and numbness in his legs. The numbness would cause him to collapse on occasion. So, Tyson sent him for a so-called independent medical exam. The doctor, selected by Tyson, was a 77 year old doctor who had once been disciplined for not documenting a physical exam. After a 35 minute exam and reviewing his medical records, the doctor found that his back was simply strained. No further medical care was necessary. Tyson cut off Mr. Walkup’s medical benefits. The doctor did not return Propublica’s attempts to discuss the Walkup case.

Billy Shawn now gets around with a cane a motorized wheelchair. He has applied for social security disability benefits and hopes to get surgery someday.

And, of course Tyson Foods lobbied in Texas for the law that allows employers tho offer a waiver after an injury. Previously, a waiver could not apply to prior injuries. Under the old law, the sort of waiver signed by Billy Shawn would not have applied to any injury incurred before the date of the waiver. But, in 2005, a deal was struck in which an injured worker could have ten days to see a doctor and then decide whether to sign  a waiver. The problem with that law, however, is that many injuries do not manifest themselves until long after ten days. This was Tyson’s law and it worked when the corporation needed it.

Tyson Foods is headquartered in Arkansas. Arkansas is where the worker’s compensation reform train first started back in the 1990’s. Now, Texas and Arkansas are seen by worker’s compensation opponents as the models of so-called reform. But, as I have heard from many workers, the worker’s compensation system in Texas is now heavily weighed in favor of the employer. Billy Shawn found that out the hard way.

See Propublica report.

The case of Abigail Fisher is once again back before the United States Supreme Court. Ms. Fisher sued the University of Texas when she was first denied admission. She is attacking the affirmative action program at UT. UT allowed the top ten percent of each graduating class at the time. Ms. Fisher argues that that top ten percent allows a sufficient amount of minorities. UT responds that no, they cannot achieve adequate diversity with just the top ten percent. So, they use additional factors to allow more minorities.

Ms. Fisher graduated from Louisiana State University in 2012, but she is still pursuing her case. It has come back to the US Supreme Court. The high court first heard her case in 2012, but it simply remanded for additional information.

At the oral hearing yesterday, Justice Scalia seemed to be arguing for “separate but equal” schools. He said many minorities do not do well at the flagship campus of UT. They do better at less competitive schools in which minorities are not pressed to go faster than they are able. He said some minorities are being pushed “ahead in classes that are too fast for them” at schools like UT. He said there are those persons who believe it does not benefit African-Americans to get into the UT flagship campus where they do not do well.

Okay. . . .  That does sound like Plessy v. Ferguson, 162 U.S. 537 (1896). Plessy famously held that separate coaches on a railway did not deprive black Americans of any property rights. After all, said the court, being placed in the black coach did not deprive the black man of any property, since he was not entitled to the reputation of a white man. The plaintiff’s lawyer argued that such laws requiring separate facilities would lead to houses painted a certain color for whites, a certain color for blacks and other colors for other nationalities. Responded the court, well, such laws would have to “reasonably” serve the public good.

Justice Scalia seems to believe separate schools for minorities would reasonably serve the public good.

Its an “open” secret in Texas jurisprudence: it does not matter what happens in the lower courts, an employer’s or large corporation’s best chance lies in the Texas Supreme Court. The Texas Supreme Court routinely overrules jury verdicts. See my prior post about the high court taking away jury verdicts here and here.

Gilbert Garcia of the San Antonio Express News acknowledges this reality when he talks about the city’s lawsuit against the police and firefighter unions. The city, no surprise here, is relying on appeals to win the lawsuit. See Mr. Garcia’s column here.

In the Nicholas v. SAWS case earlier this year, the Supreme Court actually changed law to reach its desired result. It changed the requirements for showing retaliation cases. Retaliation cases require that a person opposed discrimination in some way before retaliation could occur. Federal courts had required that a person “reasonably” believe his/her conduct opposed discrimination. The Texas Supreme Court added a new requirement that the opposition be tied to actual discrimination, not merely opposing conduct that could become discrimination. It is the difference between opposing possibly discriminatory conduct and actually discriminatory conduct. The higher court essentially chose to protect the latter and not the former.

In the Mission ISD v. Garcia case in 2012, the Texas Supreme Court imposed a new requirement, that a worker must be replaced by someone younger than 40 years old in an age discrimination case. The long-standing precedent in federal court had been that a person need only allege that the replacement worker was “substantially” younger, or that age was a factor in some way. The higher court’s new requirement is very simplistic – or result oriented.

So, sure, as the city seems to realize, the best trial tactic is to appeal.

In times of war or fear, we turn to our baser instincts. Unfortunately, lately that means many Americans blame all Moslems for the acts of a few. As I have mentioned here before, my experience is different than many Americans. I had the privilege of serving in Iraq with some wonderful persons who happened to be Moslem. I found them to be the very antithesis of terrorists. Indeed, the Iraqi interpreters were subject to threats themselves from terrorists. And, the Iraqi interpreter who worked for me, Salma, was later killed by Ansar al-Sunah.

And, now, Don Trump calls for the exclusion of all Muslims from immigration to the U.S. Any exclusion based on race or religion would violate the Constitution. As I have mentioned here before, we could not have done as well as we did in Iraq and Afghanistan if we did not have those brave, decent Moslem interpreters risking their lives with us. Indeed, they risked more than we did. They risked the lives of their families, as well as their own lives.

Here in America, we cannot win this war without the aid of brave, decent Moslems. This is indeed a war. But, bombing the bleep out of them will not win the war. Don Trump is wrong, again. We win a war like this by, yes, bombing them, but also by winning the public relations part of the war. Yes, the war must be won on the internet and among public perception. Much as it was in Iraq, the battle ground lies in the mind of those moderate Moslem citizens. If we win them, then we win the war.

Osama bin Laden was convinced that in attacking us, he would demonstrate to the world that we as a country are anti-Moslem. He believed that we would respond to the attacks by harassing Moslems. We did not. Partly because Pres. Bush was careful to stress that good, decent Moslems would not commit terrorism.

If Salma were here, she would say, “sir, these people are crazy!” And, they are.

Well, the saga of the Cain brothers is over. I previously wrote about Ronnie Cain’s efforts to obtain severance pay after being terminated from his position as City Manager for Windcrest. See my prior posts here and here. Gary Cain and Ronnie Cain were accused of embezzling $2.8 million. I thought Ron Cain’s demand for severance pay was rather “nervy” under the circumstances. But, at trial recently, Gary Cain was acquitted by a jury after deliberating for 11 hours. And, now the special prosecutor has elected to dismiss the charges against Ronnie. See San Antonio Express News report. I do not know if Mr. Cain ever obtained any severance, but the two brothers have now been through bankruptcy and a five year legal ordeal.

Eleven hours is a very long time for any jury to deliberate. The case must have been close.

The right to confront one’s accusers in trial is a fundamental principle of our judicial system. Or, is it? One lawyer learned that confronting one’s accusers is not so fundamental, after all.

Ernesto Martinez, Jr. was accused of double billing. That is, he was accused of billing two different sets of clients for the same 17.5 hours of work in one day. So, he was in effect boiling for 35 hours of work in one normal 24 hour day. At least according to Wikipedia, there are only 24 hours in an average day…..

Mr. Martinez was found guilty of unethical billing practices. The matter went to arbitration. The arbitrator, Phyllis Speedlin, ordered him to pay back $633,000 to his former clients. The clients had hired Mr. Martinez regarding some failed investments on the South side near the Toyota plant. Mr. Martinez was found guilty of taking hours from a junior lawyer and billing them at his higher rate per hour. He was found guilty of many violations of lawyer ethics. See San Antonio Express News report.

But, as Mr. Martinez’ lawyer, Jesse Castillo, pointed out, was the process fair? Arbitration allows for no appeals. So, there is no process by which the arbitral hearing can be tested or examined. That one hearing is all a person gets. Mr. Castillo faults the system because the arbitrator did not allow him to cross examine the clients who alleged these violations. Mr. Castillo says the former clients signed “copy cat” affidavits. Those affidavits were admitted into evidence, apparently instead of live testimony from the clients. “Copy cat” affidavits refers to affidavits that contain the same language. If they are all worded the same, that similarity suggests someone other than the witness drafted the statements. Those sorts of affidavits are questionable.

Some cases may not require testimony from the clients themselves. This case sounds like it relied more on an audit of Mr. Martinez’ invoices. That may have been the critical evidence. But, still, anytime witness statements are admitted instead of live witnesses, we have to question the process.

Or, as Jesse Castillo says, he and the lawyers he knows are removing arbitration provisions form their future client agreements. At least courts will follow the rules of civil procedure, he explained. That sounds like wise advice to me. Arbitration is a private remedy with no appeal and no oversight.

I used to work at Disability Rights of Texas. I learned that some folks have some very obscure disabilities. One such disability is arthrogryposis. The impairment causes a person to have paralyzed arms. A reporter, Serge Kovaleski, suffers from arthrogryposis. The reporter wrote a story just after 9/11 quoting some law enforcement officials that some folks celebrated the 9/11 attacks with tailgating. Donald Trump has relied on that report to assert that thousands of Arabs in Jersey City celebrated the 9/11 attacks. Mr. Trump insists that celebration occurred even though that reporter today says he never did find any corroboration for that story. See CBS news report.

So, Donald Trump being Donald Trump mocked Mr. Kovaleski . The candidate did not like it that that the reporter backtracked hiss tory from 2001. He mocked the reporter’s physical appearance by holding his arms like jello – while attacking the reporter.  He said the report might be an athlete like Mohammed Ali or J.J. Watt.  ….  It is not enough to simply disagree with the reporter. The presidential contender has to also mock his physical appearance? This from the same man who mocked one female news reporter for asking, in his opinion, inappropriate questions at a debate and who poked fun at the physical appearance of Carly Florina.

Disabilities are not funny. Physical impairments are not funny. If Donald Trump were to become president, I predict persons with disabilities will not have a friend in the White House.