Dwight Lieb, the owner of the well-known La Fogata restaurant, makes the point I was addressing in my post about CPS. Happy workers make better workers. He asks what are "happy" workers? Happy workers are those employees who derive some satisfaction from their job and feel empowered to realize professional goals at their jobs.  See San Antonio Express News commentary (account required). He says the food tastes better when the workers are happy. What he is saying is that the workers produce a better product when they are content. 

He makes the important point that to develop content workers, a business owner or manager must first listen to their employees. In the Army, we were taught from the very first officer leadership course to listen. We received good training in counseling. It is not easy to counsel or to listen. But, the more you do it, the better you get. Indeed, I would say that is the difference between leadership and mere management. Leadership fosters team work. Management simply directs employ toward specified tasks. 

Mr. Lieb cites a Gallup survey which found that the 30% of the U.S. workforce that is actively engaged comes up with the best ideas and the most creative solutions. The worker who called her supervisor a "bitch" for calling her while she was on-call might well become the best worker if she was simply heard and respected. See my prior post on CPS here. Yes, calling your supervisor a name is serious. That CPS worker should have received some discipline. But, I bet the events leading up to that phone call would reveal a supervisor who did not listen. 

People want more money and more perks. But, the best workers will seek out greater responsibility over greater pay. 

If there is one thread common to employment lawsuits, it is poor or no training for managers. Training helps instill values. It builds a culture of excellence. It is that culture of excellence which is missing from Child Protective Services. See San Antonio Express News report. The report discusses the missed opportunities by social workers to save a child’s life. But, the story also asks how many workers would have performed better if they were not working in such a toxic work environment? The on-call worker who explodes when called to a new case while she is by the pool with her kids. If she worked in a better place, would she have called her supervisor a "bitch"?

The new Director, John Specia, essentially admitted more money was not the only answer when he talked to the state Legislature. Regarding the situations where children under CPS watch had died, he said the correlation was not always higher caseloads. The caseworkers who failed to do home studies or to check on a family did not have the highest caseloads. The sad truth is that many caseloads are higher for some workers, while lower for other caseworkers. The difference is apparently due to some caseworkers getting along better with their supervisors, while other supervisors have loaded caseworker with too many cases. The work place suffers from too much distrust and resentment. 

I have been involved with CPS in one lawsuit and have met with several caseworkers about possible lawsuits. This Express News report very much jibes with my experience. One of my clients simply asked a question about an overlooked report and was then "frozen" out of decisions and ultimately forced to  quit. No place of employment is perfect. But, I was struck at the venal nature and petty bickering between upper level managers at CPS. Another caseworker needed time off for foot surgery and was repeatedly put off when she asked for time off. Her supervisor even said at one point that she could not have time off for required surgery until she reduced her numbers. 

Simple training on the Americans with Disabilities Act would have helped the latter supervisor. But, simple training on the cost of training new caseworkers and the importance of retention would help. As the Express News article points out, critical information is lost when key workers turn over so frequently. 

The Patent Office (more specifically, the Trademark Trial and Appeal Board) has canceled the patent owned by the Washington Redskins on the "Redskins" name. Five Native Americans filed suit under 15 U.S.C. §1064(c), the Trademark Act seeking cancellation of the patent on the name. The Patent Office ruled in their favor. The plaintiffs alleged that the trademark on the name violated 15 U.S.C. §1052(a), which prohibits trademarks which disparage persons or brings them into contempt or disrepute. See decision in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185. 

This is the second such suit. In 1992, another group of Native Americans field suit. That suit lasted seven years. The Patent Office again found the term disparaging. The defendant appealed to the U.S. District Court and succeeded in overturning the decision. The District Court overturned the Patent Office on the basis of laches, a Latin term meaning "unreasonable delay." The court essentially said the trademark has been in existence too long and the plaintiffs let it go too long. 

But, this time, the Patent Office found that after the "America Invents"  statute was passed in 2011, the laches defense will no longer obtain. Since, laches is based on equity and the equity of "human dignity" will trump financial interest. 

I understand from persons with more knowledge than I about trademarks that the Redskins team can still use the name under general common law trademark registration. But, this ruling does make the use of the term more problematical if they are sued over its use. But, if this litigation continues, the team will have to re-consider the value of this name. 

 

 

 

photo courtesy of creationc 

The "Batson challenge" allows a lawyer to challenge the strike of a potential jury member. The challenge is based on the decision in Batson v. Kentucky, 476 U.S. 70 (1986), which found it unconstitutional to strike a potential jury member on the basis of race. The Batson challenge does not require much. So long as the lawyer can articulate a non-discriminatory reason for the peremptory strike, then the strike will likely stand.  A prosecutor, Steve Brand, in Travis County struck a potential jury member because she was a member of the NAACP, because she wanted to be a member of the jury, and because she had a link on her Facebook page to Negro Motorist Green Book, a book for safe travel during the Jim Crow era. Mr. Brand said he wanted to avoid an having an "activist" on the jury and would have done the same in regard to a perceived white activist. 

The strike occurred during jury selection for a criminal trial. The judge granted the challenge and ordered that a new jury to be picked. But, before a new jury could be selected, the accused plead guilty. 

The Travis County District Attorney, Rosemary Lehmberg, later fired the prosecutor for his remarks – saying they were racially insensitive. To survive a Batson challenge, all the prosecutor had to do was to articulate a non-discriminatory reason for the strike. Lawyers come up with those "eye wash" reasons all the time. Surely, the Travis County prosecutor could have come up with better reasons than membership in the NAACP and appreciation of a historical book. One has to conclude that Mr. Brand was pushing his own agenda in some way. 

See ABA Bar Journal report. 

The ISIS (Islamic State in Iraq and Syria) forces capture northern Iraq and some 2 million U.S. veterans look with dismay. See CBS news report. I spent a lot of time traveling north form Tikrit, through the oil fields and the critical bridge over the Tigris River. Now, it is in the hands of some of those folks we were fighting. We trained the Iraq army. We supplied them. We equipped them. Now, reports say the Iraqi military fled the ISIS forces. 

But, even in 2005 and later, we knew their military was weak. Saddled with corrupt practices and obsolete military traditions, the Army had so far to go when we started training them. They had no Non-Commission Officer Corps. That tradition never seems to have visited that distant part of the Middle East. We brought our institutions and traditions and tried to plant some seeds. But, we could not overcome sectarian divides.

The United States chain of command throughout the American military struggled constantly to overcome the Shia-Sunni-Kurd divides. In the end, the country’s leadership clung to its old ways and never sought genuine trust or cooperation until perhaps now. But, now may be too late. In a counter-terrorism war, it is not enough to simply kill the bad guys. We must also win the "hearts and minds" of the local population. We spent a lot of money and invested tremendous amounts of man hours trying to do exactly that. We did well on many levels. We won many hearts and many minds. But, in the end, we lacked the time and resources to reach a lasting sort of victory.  

Sebastien De La Cruz sang at the NBA Finals in San Antonio, just as he did a year ago. The little boy who wears a charro outfit while singing. Charros are Mexican cowboys. Sebastien is a Mexican-American. He is as American as you and I. Yet, when he sings the national anthem at the NBA Final games, folks from around the country tweeted that he was an "illegal" and asked why a Mexican was singing the national anthem. No, he is no more a Mexican than I am Irish, German or French. See San Antonio Express News report (account required).

"San Antonio’s Little Mariachi," as he is sometimes called, was a semifinalist on America’s Got Talent in 2012. He was a last-minute replacement at last year’s NBA Finals. He likes to wear the charro outfit. Why not? He was subjected to racist tweets last year. After he sang last night, more racist tweets followed. Now more experienced, Sebastien sighs, and suggests people stop being childish. The 12 year old responds, "I am who I am, and nobody can tell me different." That is wise advice for anyone subjected to racism. 

Every lawyer has a fiduciary duty to maintain a client’s property safely and appropriately. A fiduciary duty is the highest duty imposed by our legal system. A fiduciary must exercise a high degree of good faith in protecting a client’s property. So, when the "DWI Dude" is charged with not returning $50,000 he maintained on behalf of his client, I just shake my head. See San Antonio Express News report (account required). The "DWI Dude" is Jamie Balaglia, a lawyer in Austin and San Antonio who advertises for DWI cases. He is also the Libertarian Party candidate for state Attorney General.

He represented a client suspected of transporting drugs. The authorities indicated at first they would seek civil forfeiture of the funds. When they did not, the moneys as turned over to Mr. Balaglia. He apparently still has the money. The State Bar of Texas has filed suit to seek a finding that he has violated ethical rules. 

I always a little surprised when my clients do not already know I owe them a very high duty, a fiduciary duty, toward the money they deposit with me. I doubt any lawyer would forget this fundamental principle of the lawyer business. I have no idea what is going on with Mr. Balaglia’s practice. But, I caution folks from becoming too judgmental toward a lawyer. We do not know the whole story, yet. Often when a lawyer violates a clear rule like the fiduciary rule, the lawyer is going through some illness or substance abuse, which is often its own illness….

In this day of increased appreciation for service members, we are hearing a lot of negative news about Bowe Bergdahl, now that he has been freed. It makes sense to me that we have this discussion after he has been freed. I am happy that he is free of his captors. The Taliban are not nice people. But, the soldier sounds emotionally unstable to me. Reports say that he walked away from his unit at the National Training Center in California. His unit rotated through the NTC as part of its train-up for the deployment to Afghanistan. The NTC is in the middle of the Mojave Desert. A person does not just "wander off" at the NTC. The nearest paved road is 20-30 mles away. The nearest town of any size is 60 plus miles away. 

I once had a soldier volunteer to rotate through the NTC with another unit. He was normally a good soldier, but perhaps not "all there." He apparently did not like his unit or the duty he was performing. He left his unit at the NTC. He walked away from hundreds of dollars of gear for which he was responsible. He made it to a road and hitchhiked to a far away town. There are no towns near the NTC. All towns are far away. When he got back to his hometown, he went to a mental hospital. People do not just wander off at the NTC. 

One of Bowe Bergdahl’s platoon members said he just left the unit in Afghanistan. He took his compass and left behind his rifle, helmet and Kevlar vest. The platoon member, Gerald Sutton, used the word "deserted." Mr. Sutton used the word "deserted" several times. But, to desert in a war zone suggests a lack of mental competence. In Iraq and Afghanistan, to leave your FOB (Forward Operating Base) is tantamount to suicide. U.S. soldiers cannot simply blend in with the crowd at your local Afghan village. Something is not right with Sgt. Bergdahl. I would expect him to be prosecuted or placed in a mental hospital. 

Is there sexism in the work place? You bet. Look at the report at CBS news about women in the technology business. Several women published a manifesto calling for change. See CBS news report. The female techies say they have been pranked (porn left on their computer screen when they leave their work station), attended meetings which became attempted dates, and treated to derogatory, sexist emails by their male co-workers. See their manifesto here. The women include workers at Adobe Systems, Mozilla, BuzzFeed, Kickstarter, and Stripe. 

Sheryl Sandberg, Chief Operating Officer at Facebook, says she has heard the excuses for not hiring more women in the technology industry. One executive said he would like to hire more women but his wife fears he would sleep with them and, he added, he probably would. 

All I can say is the technology industry will learn its lesson the hard way…..

I do not understand the criticism of the Bowe Bergdahl prisoner exchange. Republicans leaders express concern that five Taliban leaders were released. These persons may cause harm to Americans. Pres. Obama mentioned that Sgt Bergdahl’s health was beginning to worsen. Today, Sen. Saxty Chambliss, R-Ga., suggested there was nothing wrong with his health. See CBS news report. 

Ok, but what about the possibility that his captors might cut off his head? I would consider that a threat to his health. . . .  Seriously, the U.S. Army has made prisoner exchanges since the Revolutionary War. I am sure back in 1778 or so, we exchanged some prisoners which freed some British soldiers who would cause us future harm. Prisoner exchanges have fallen out of favor in the 20th century. In the 19th century, an exchanged prisoner was supposed to swear an oath he would not participate in further hostilities. But, more often than not, the freed prisoner went back to fighting. Too, prisoner care has much improved since the American Civil War. The Civil War was probably the last time we engaged in regular prisoner exchanges. If the prisoners are reasonably well cared for, we lose some incentive for exchanges. 

But, in a war with the Taliban, circumstances are more primitive. I think it would be far worse to leave Afghanistan without Sgt Bergdahl. Regardless f the circumstances of his capture, we cannot leave a soldier behind. The fuss over the prisoner releases after the Viet Nam War should have taught us a lesson. For decades after the war, many veterans were certain the VietNamese had not released all the U.S. prisoners. We cannot go through that agony as a country again. I am sure most veterans would agree: we would rather assume the risk of five additional Taliban leaders than enduring the continued imprisonment of one of our own. 

I do not know how or why Sgt. Bergdahl was captured. But, I am thrilled he is back. I am sure that these critics are not veterans and have not served in a war zone.