Legal Writing for Legal Reading!

Archive for the month “December, 2013”

Merry Christmas and Happy New Year!

Merry Christmas and Happy New Year to all of my readers!  Thanks so much for taking the time to read my posts and, at times, providing some fiery debate over them.  It has been a lot of fun and I hope to keep it up over the next year.

I posted a little blurb last year about the various days to celebrate over Christmas which you can read here.

As you go through this holiday season please remember why we have a holiday season, which is God who came to earth in human flesh as the fully human Jesus of Nazareth.  If Jesus never came, the Holiday Season as we know it simply would not exist; indeed the coming of Jesus was so momentous that it caused Western Civilization to restart our dating system back to “zero”.

Please be sure to give proper devotion and recognition this Holiday Season to Jesus the Savior of the World who came, and, through his life, death, and resurrection, defeated sin, death, and the devil.  Jesus, as it were, as the Christ-Child, leaves the gift of himself, which is eternal life and bliss with him, under the tree, if you will, in the homes of everyone in the world.  He will not open it for you and he will not force you to take it and if you do not accept it, the gift will never be conferred upon you.  So, please, as you consider the next year, please accept this gift that the Christ-Child leaves for you under your tree because Jesus went to his death to make sure you have it as it literally has eternal benefit and consequences; God could not give you any more than he has, which is all of himself for specifically you.  

As a side note, I am sure you all have heard of Kris Kringle who people assume to refers to Santa Claus.  The fact is, German Christians, like all Christians, anticipate the arrival of the Christ-Child on Christmas morning.  In German “Christ Child” is translated as “Christkindl“.  When English speaking Christians heard German-speakers say “Christkindl”, they heard, in their English-speaking-brains, “Kris Kringle,” and assumed the German-speaking Christians meant Santa Claus (or Father Christmas, as it were).  So, yes, Kris Kingle will be coming this year, as it were, as we celebrate the coming of the Christ-Child every year!

Finally, I saw the little meme image below and I thought it was very funny.  For all those who think ‘”X-mas’ takes Christ out of Christmas”, please refer to this image.



Losing Even Though You Win

Probably every practicing attorney has had to have a conversation with a client which goes something like this: “I know you’re “in the right” and would win your case, but is winning your case worth the cost to do so?”  Such counsel is a difficult pill for someone to swallow and sometimes an even more difficult pill to administer.

One of the reasons one hires an attorney is that an attorney can offer a dispassionate and objective view of a case that the party in the case may not have as a result of the emotional and personal ties he has to it.  Unfortunately, it costs money to pursue a case.  Anyone who has been quoted a retainer fee or has had to pay an attorney’s hourly rate will know just how expensive lawsuits can become.  This is true even for those litigants who hire an attorney on a contingency basis.  Sure, they may not have to pay a retainer fee but the potential damages they may receive may not make the investment into litigating the case worthwhile; for example, there is little financial sense for an attorney to sink $25,000 into a case which may only garner $10,000 in damages or, from the client’s perspective, the contingency fee, once deducted, makes the damages payable to the client less than his actual loss.

Many people look to the justice system honestly seeking justice, but people often view balancing the costs to pursue a case as an injustice in itself and, quite honestly, it is sometimes unjust.  For example, a person who has been truly wronged may seek justice in court in order to be made whole and remedy the loss/injury/damage caused by another.  Unfortunately, sometimes the cost to pursue that remedy is greater than the loss/injury/damage itself, which means pursuing the case will put that person in a worse position than the loss/injury/damage itself!

The reverse is also sometimes true.  Practically anyone can file a lawsuit for practically any reason against practically anyone; this is not to suggest that these law suits are legitimate or meritorious (they may not be), but that there is no gatekeeper at the start of a case to reject these sorts of cases.  Instead, parties who are perfectly “innocent” and/or without any shred of liability to the plaintiffs in these cases have to spend money to defend a completely meritless case.  There is little recourse against the plaintiffs of meritless cases.  Potential plaintiffs have a wide latitude to bring cases, especially because there is often no way of knowing whether a case is meritorious at its inception, and before discovery is conducted and evidence is produced, and, perhaps more importantly, the right to petition the government for redress is enshrined in the First Amendment of the U.S. Constitution and few restrictions are in place as a result.  Unless an “innocent” defendant can demonstrate that the plaintiff brought the case knowing it was meritless, or brought it negligently, for a vexatious purpose, and/or knowing the case was complete frivolous, an “innocent” defendant will have no redress against the plaintiff for bringing a meritless suit.  Of course, to add insult to injury, if there is potentially a claim against a plaintiff for abusing the legal system, a defendant will have to outlay money (either through a retainer fee or contingency fee) to pursue that claim.

Now, some people pursue claims “for the principle” and know going into a case that they will likely lose money even if they win the case when their winnings are compared to the money they had to outlay to pursue the claim.  People pursue these claims “on principle” because they view justice as not allowing someone else to “get away with” whatever it is he did.  This is certainly a choice someone can make, but in my experience in practice, very few people have the stamina to actually follow through with their crusade for principle when the costs begin to mount.

So, until there is some sort of fundamental change in the American legal system, parties to a law suit will have to expend money in some way to pursue a claim or defend a claim and, unfortunately, that may lead to a financial injustice of some sort.  When looking at the facts of a case in which one is or could be a party, please be sure to seriously consider the financial implications of the money that will have to be spent to pursue it and/or defend it.  It may not be just, and one’s attorney may be the person bearing the bad, but unfortunately, accurate news, but it is the reality of the legal system with which one must work in America at the moment and there is not much one can do about it when considering (or defending) a lawsuit!  No one wants to win a case but ultimately lose when all of the numbers are tallied up.

Real Estate Disputes Between Church and Parish

Over the last several years, there have been a number of cases involving the Episcopal Church and/or its dioceses and/or its parishes and disputes over ownership of church property. Specifically, as the Episcopal Church as a whole has become more theologically/doctrinally progressive, various parishes and dioceses that espouse a more conservative view have been breaking off from it and, sometimes, attempting to take their real estate with them.

There have been some local disputes in the Episcopal Church in the Montgomery County Court of Common Pleas (e.g.: Moyer v. Bennison, Case No.: 2002-07147; Moyer v. Bennison, Case No.: 2002-16553; In re the Church of the Good Shepard Rosemont, Pennsylvania, Case No.: 09-0609) regarding the property and employment dispute between the parish of Good Shepherd in Rosemont, Pa., and its priest, Father David Moyer, against the Episcopal Diocese of Pennsylvania, and in Philadelphia Court of Common Pleas regarding the property of the Church of Saint James the Less (e.g.: In re Church of Saint James the Less, 585 Pa. 428 (2005). In these matters, the court ruled in favor of the diocese under the long-standing precedent that property of a parish is ultimately owned by the hierarchical church.

Two of these recent property disputes between parishes and their dioceses have finally reached the U.S. Supreme Court, one from Georgia and another from Connecticut. The matter from Connecticut (Episcopal Church v. Gauss, Case No.: UWY-CV08-4020456-S, in Waterbury, New Haven County Court) is an interesting one, as it involves the parish of Bishop Seabury Anglican Church, which was formed before the establishment of the Episcopal Church itself. Its argument was essentially that, as it was formed before the existence of the Episcopal Church, voluntarily entered the Episcopal Church and never received contributions from either its local diocese or the national Episcopal Church, it should own the real estate the parish uses. Therefore, due to its virtual independence, it argued that it should remain independent and free to disaffiliate with its property in tow. The Connecticut courts, like the Pennsylvania court above, ruled against the parish, holding that the parish is owned by the diocese. The parish appealed to the U.S. Supreme Court and, in early June 2012, the Supreme Court declined to hear the case, cementing the lower court’s decision that Bishop Seabury Anglican Church does not own its property and cannot take it when it separates from its diocese and the Episcopal Church.

The type of litigation described above has unique circumstances elevating the dispute beyond the parish and diocese in a matter involving the Episcopal Diocese of Pittsburgh. As opposed to individual parishes seeking to disaffiliate from the Diocese of Pittsburgh, the diocese itself is seeking to separate from the Episcopal Church. Although there is significant precedent as to the relationship of a parish’s property to its diocese, the question of the relationship of a diocese’s property to the national Episcopal Church is generally a matter of first impression. As the Diocese of Pittsburgh and other dioceses (e.g.: the Diocese of San Joaquin, Calif., and the Diocese of Fort Worth, Texas) weigh their litigation options, it is clear that this area of the law is developing rapidly and it will be interesting how the courts will ultimately resolve these property disputes.

Originally published in The Legal Intelligencer Blog and can be found here.

Torah Law Training

Yesterday was my last class for the year where I get to learn Torah from a local Hasidic orthodox Jewish rabbi.  The classes are an hour and a half for six weeks.  The benefit of this class is that I get to do Bible study among a group of people who I would not otherwise do so with, namely Jewish people and a rabbi.  I also get 9 continuing legal education credits for a pretty cheap price, so that is a great benefit too to say the least.

I have written on this before after my last class which you can see here.

The class this time around was mainly on medical ethics on issues like autopsies, organ transplants, abortions, euthanasia, elective surgery, and the like.

I find these Bible studies really interesting because it forces me to approach the Bible from (a) perspective(s) that I do not naturally take or use, namely a legal and/or Jewish one(s).  As I have said before, I am fascinated by how the Jewish Community can, through their approach and/or background, take away something completely different from a given biblical passage than I can and/or would due to my own approach and/or background.  This really speaks to how wide and encompassing and powerful the inspired Word of God truly is, I think.  Also, it really helps a Christian, like myself, see first hand just how much the New Testament and/or Jesus and/or the teaching of the Church has served to change the course of Jewish history and how much they influence how a Christian views the Torah and other Jewish writings.  Finally, these classes allow me to be exposed to Jewish sages, Midrash, and the Talmud, things I would not normally have exposure to, as well as have them presented in digestible and understandable ways.  I would recommend any Christian to try one of these classes, it is well worth it!

Thank God for the Torah and thank God for what he accomplished through it and the people described within it!

Your Lawyer is Your Partner

Check out Faye Cohen’s blog post “Your Lawyer is Your Parner” on her blog Toughlawyerlady here.

Green Marriage

I am a firm believer in ideological consistency, regardless of one’s ideology.  I think such consistency demonstrates intellectual honesty and true belief and/or adherence to the chosen ideology.  Few things are more frustrating to me in a debate than when someone who holds a certain position does not hold to another which logically flows from the first, for no apparent reason other than preference.

Many people who self-identify as ideologically liberal subscribe to what most would call “environmentalism.”  I do not want to get too bogged down with what exactly environmentalism is, but suffice it to say for my purposes, environmentalism is an ideology which thinks we should do what we can (including using the force and power of government) to keep the Earth clean and free from pollutants, reduce greenhouse gasses, pursue renewable resources, recycle existing materials, preserve green spaces, reduce deforestation, reduce resource usage, and anything else commonly known as “green.”

Most people who self-identify as ideologically liberal also support the concept of no-fault divorce, see no issue with sex outside of marriage (in fact they take it as normal), have no issue with unwed pregnancy (in fact they sometime applaud it), and other sorts of hallmarks of the sexual revolution.  By contrast they tend to view traditional sexual mores as ranging between old fashioned (or archaic) to oppressive to intolerant to irrelevant in the modern world.

So, what does environmentalism have to do with liberal sexual mores?  To put it simply: I do not believe the two are sufficiently ideologically consistent for the same person to hold to both.

I came to this conclusion while driving around my neighborhood and the surrounding area.  In a few places near my house, large tracts of land are being (or have been) cleared of trees and green spaces in order to make room for more houses to be built.  As we speak, new neighborhoods are being constructed where woodland used to be and I wondered why all this new housing is suddenly needed.

Now, obviously population growth is certainly a cause for the need for more housing, but there is also another cause for it too:  the break down of the traditional nuclear (and married) family.

How did I arrive at this conclusion?  I think it is pretty well known that fewer and fewer people are getting married, the divorce rate is remaining at approximately fifty percent (50%), and unwed pregnancy is becoming increasingly common.  Once upon a time, a man and woman would get married and have kids and they all would live in the same home.  All would use the same electricity, gas, and water and the same green space.  Nowadays it is increasingly common for mom and dad to live in different houses.  As a result, in order to accommodate these separate homes, as opposed to a single home for the family unit, to house these “families”, approximately twice as much green and/or wooded space has to be destroyed, approximately twice as much water is used, approximately twice as much gas and/or electricity is used, and approximately twice as much building materials are needed for construction of the new homes, not to mention more gasoline needed and the additional wear and tear on one’s car for the transportation of the children between the parents.

Ironically, those who consider themselves “conservative” (and support traditional family values) generally would not consider themselves “green” or environmentalists, but their views on the family are just that.  Therefore, if one believes environmentalism to be important, one must abandon the more liberal views of the family, otherwise one would be very obviously ideologically inconsistent.  If one is truly “green,” he must also oppose the deterioration of the traditional nuclear family by divorce, unwed pregnancy, and other similar sorts of things as they are all adversely affecting our environment.

Of course, as I have mentioned on this blog, I have a Christian worldview which, I think rather consistently, embraces both stewardship, care, and concern for the environment as our role in God’s creation as well as the view that children ought to be conceived in a marriage of a mother and father.

Looking to make a year-end donation? Please keep the Christian Legal Clinics of Philadelphia in mind!

If you are looking for a place to give or make a year end donation, especially in the spirit of the Christmas Season, please remember the Christian Legal Clinics of Philadelphia. You can learn more about us here.

We need the support to open a new location in Kensington as well as secure an attorney employed by the Clinic itself to attend hearings and other similar services. Any amount helps us continue our efforts to bring justice to the underprivileged. Contributions can be directly through our website or mailed to the address on the website. Thanks a lot and Merry Christmas.

Considering the Big Picture

Check out Faye Cohen’s blog post “Considering the Big Picture” on her blog Toughlawyerlady here.

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