Tuesday, December 20, 2011

Or Words To That Effect

The piece below was brought to my attention by my paralegal, Glorialee. I believe it perfectly captures the spirit of the season. Its author is unknown.

Happy holidays to all.

An Attorney’s ‘Twas The Night Before Christmas

Whereas, on or about the night prior to Christmas, there did occur at a certain improved piece of real property (hereinafter “the House”) a general lack of stirring by all creatures therein, including, but not limited to, a mouse.

A variety of foot apparel, e.g., stocking, socks, etc., had been affixed by and around the chimney in said House in the hope and/or belief that St. Nick a/k/a/ St. Nicholas a/k/a/ Santa Claus (hereinafter “Claus”) would arrive sometime thereafter. The minor residents, i.e. the children, and issues of the aforementioned House, were located in their individual beds and were engaged in nocturnal hallucinations, i.e. dreams, wherein vision of confectionery treats, including, but not limited to, candies, nuts and/or sugar plums, did dance, cavort and otherwise appear in said dreams.

Whereupon the party of the first part (sometimes hereinafter referred to as “I”), being the joint-owner in fee simple of the House with the party of the second part (hereinafter “Mama”), and said Mama had retired for a sustained period of sleep. At such time, the parties were clad in various forms of headgear, e.g., kerchief and cap.

Suddenly, and without prior notice or warning, there did occur upon the unimproved real property adjacent and appurtenant to said House, i.e., the lawn, a certain disruption of unknown nature, cause and/or circumstance. The party of the first part did immediately rush to a window in the House to investigate the cause of such disturbance.

At that time, the party of the first part did observe, with some degree of wonder and/or disbelief, a miniature sleigh (hereinafter “the Vehicle”) being pulled and/or drawn very rapidly through the air by approximately eight (8) reindeer. The driver of the Vehicle appeared to be and in fact was, the previously referenced Claus. [See Exhibit A]

Said Claus was providing specific direction, instruction and guidance to the approximately eight (8) reindeer and specifically identified the animal co-conspirators by name: Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner and Blitzen (hereinafter “the Deer”). (Upon information and belief, it is further asserted that an additional co- conspirator named “Rudolph” may have been involved.)

The party of the first part witnessed Claus, the Vehicle and the Deer intentionally and willfully trespass upon the roofs of several residences located adjacent to and in the vicinity of the House, and noted that the Vehicle was heavily laden with packages, toys and other items of unknown origin or nature. Suddenly, without prior invitation or permission, either express or implied, the Vehicle arrived at the House, and Claus entered said House via the chimney.

Said Claus was clad in a red fur suit, which was partially covered with residue from the chimney, and he carried a large sack containing a portion of the aforementioned packages, toys, and other unknown items. He was smoking what appeared to be tobacco in a small pipe in blatant violation of local ordinances and health regulations.

Claus did not speak, but immediately began to fill the stocking of the minor children, which hung adjacent to the chimney, with toys and other small gifts. (Said items did not, however, constitute “gifts” to said minors pursuant to the applicable provisions of the U.S. Tax Code.)

Upon completion of such task, Claus touched the side of his nose and flew, rose and/or ascended up the chimney of the House to the roof where the Vehicle and Deer waited and/or served as “lookouts.” Claus immediately departed for an unknown destination.

However, prior to the departure of the Vehicle, Deer and Claus from said House, the party of the first part did hear Claus state and/or exclaim: “Merry Christmas to all and to all a good night!” - or words to that effect.

Tuesday, December 13, 2011

The Spanish Countryside

The city of Valencia disappeared behind me, replaced by the vibrant green of the Spanish countryside. I sat in the car’s passenger seat, wondering whether I had made a mistake in agreeing to the trip.

The year was 1997. I represented the owner of a famous trademark for towels and bedding in litigation involving the manufacture of counterfeit goods in Spain. I had traveled to Valencia to take the deposition of the Spanish manufacturer, whose plant and warehouse were situated outside the city. The deposition would begin the next day at the Melia Hotel, where my opposing counsel and I were both staying. On this day, I had agreed to travel with the manufacturer and his attorney to the plant to review documents and observe the operation.

We drove for more than an hour, the manufacturer behind the wheel, my opposing counsel directly behind me. We would occasionally comment on the beauty of our surroundings: a sea of green extending in all directions, with occasional villas visible on the horizon. Despite the soothing panorama, I could not relax. I stole occasional glances at the defendant behind the wheel and half-seriously wondered whether I would mysteriously disappear and never make it to the next day’s deposition.

We eventually reached our destination, a large, box-shaped building in the middle of nowhere. The manufacturer insisted that the lawsuit was a mistake, that he did not engage in the manufacture of counterfeit merchandise. He was short for words, however, when an employee inadvertently opened a door into a room that contained counterfeits of not just my client’s products, but of many other famous trademarks, as well.

After several hours of documents and explanations, the manufacturer drove us to an outdoor restaurant at an old hotel situated near the base of a medieval castle wall. The location was breathtaking and the food delicious. The conversation soon turned to the case, with the manufacturer again insisting, despite what we had seen at his plant, that he did not manufacture counterfeits. I responded that, while I appreciated his hospitality, I intended to come down hard on him. It was all very pleasant, but with an underlying feeling of unease.

I spent the next two days grilling the manufacturer and confronting him with the evidence of his activities. At the conclusion of the deposition, we sat down at a café in a medieval section of Valencia and spent several hours negotiating a settlement.

Two days later, I boarded a plane for Madrid, where I would catch my connecting flight back to Miami. The trip had proven successful – I had been able to negotiate a settlement very favorable for my client. Yet what I remember most about the case, and what keeps it fresh in my mind fifteen years later, are not the legal issues, the eventual settlement or even the personalities involved (many were quite flamboyant). Rather, the images that most vividly remain are those of medieval castle walls, ancient countryside hotels, and a long car ride into the Spanish countryside with the possibility of no return.

Wednesday, November 30, 2011

Follow the Leader

So now it’s Newt’s turn.

This year’s Republican presidential primary has resembled the Kentucky Derby, the initial leg of the horse racing Triple Crown: one and a quarter miles of break-neck competition, with countless lead changes preceding a final desperate sprint to the finish. Rarely do competitors lead from start to finish. Those who emerge quickly usually fade as the finish line draws near.

Early Leaders

Michele Bachmann and Rick Santorum were viewed as potential early leaders, and they appeared to emerge well from the gate. Their perceived advantage proved illusory, however, and they quickly faded into the pack. The general feeling is that they have run their race and will not mount a credible challenge.

Rick Perry, the last candidate to the gate, then surged ahead. He was an early favorite and his campaign seemed to be gaining momentum as he began to separate from the pack. However, amidst criticism for softness on immigration issues, he stumbled badly at debates and quickly lost his lead.

Perry’s unexpected drop opened the door for a new candidate to emerge. Herman Cain, former chairman and CEO of Godfather’s Pizza, suddenly materialized atop polls. Cain used his business background to gain favor by preaching economic conservatism and proposing a 9-9-9 tax plan which some viewed as promising while others dismissed as impractical. While some were skeptical of his chances, others viewed him as the future of the Republican party and expected him to remain among the leaders for the balance of the race.

Then the mud began to fly.


There is one significant difference between horse race and presidential campaign. In horse racing, the leader avoids the constant bumps and collisions that inevitably occur when a group of strong, agile animals occupy limited space at high speeds. While trailing horses are subject to mud and dirt raised by the hooves of those before them, the leader can run unimpaired. There is no one to kick mud in its face.

Leading candidates in presidential races, on the other hand, attract mud. They are subject to scrutiny and become vulnerable targets because of their visibility. In presidential races it is the mud hurlers, and not the candidates, who are unimpaired. Thus, the candidate who emerges from the pack must be prepared to face challenges that his opponents may not.

Quite often, those challenges stem from the candidate’s past life. Offenses and indiscretions that may have otherwise remained forever buried suddenly emerge to sully the candidate’s reputation. When those offenses and indiscretions are of a sexual nature, they can destroy the candidate’s chances, as they did Gary Hart’s in 1988.

Soon after Cain’s surprising surge to the front, he was confronted with allegations of past sexual harassment of women and a decade-long extramarital affair. Cain has denied these allegations, essentially turning the issue into a he said/she said, she said, she said and she said verbal battle for the truth. Yesterday, Cain reportedly advised his staff that he was “reassessing” his campaign in light of this development. Unlike Bill Clinton, who overcame similar allegations when he was first elected president in 1992, Cain may abandon his pursuit of the presidency, essentially pulling up lame in the midst of the Presidential Derby.

Enter Newt

Cain’s recent drop in the polls has created a new perceived leader in the race: Newt Gingrich, the former GOP Speaker of the House. Despite obvious problems with a potential Gingrich presidency (President Newt? Really?), the new leader has an advantage that Cain lacked. Because of his visibility as Clinton’s principal congressional opponent during his presidency, Gingrich’s “dirty laundry,” including three marriages and a sanction by the House Ethics Committee for tax violations, has long been aired for all to see. Thus, it is unlikely that Gingrich’s campaign will be derailed by new allegations, such as those that plague Cain. The rehashing of “old news” is unlikely to impede Gingrich’s present momentum. What may impact his overall chances will be the assessment of his electability in the general election versus that of Mitt Romney, who has remained near the front of the pack during the entire race, but has been slowed by the perception that he is not far enough to the right to get his party’s full support.

So here we are. Halfway through the race, Gingrich appears to have a slight lead over Romney, with Cain and Perry falling back into the pack. Yet the race is far from over. By the time they reach the finish line the GOP candidates will be muddied, bruised and exhausted. It seems almost unfair that the winner will be then immediately thrust into a two-horse race with President Obama to determine the next leader of the free world.

Wednesday, November 9, 2011

Heroes and Villains

“You either die a hero or live long enough to see yourself become the villain.”

The line is from Christopher Nolan’s stylish 2008 film The Dark Knight. The accuracy of the statement was evidenced this week in the sporting world.

Joe Frazier died on Monday. The former world heavyweight champion was the embodiment of why boxing, despite its inherent brutality, was once considered a “gentleman’s sport.”

Frazier was not flashy. He was a hard-working, persistent pugilist, who attacked relentlessly with hooks to the head and body, tearing down defenses until opponents inevitably submitted. He is considered one of the greatest heavyweight champions despite successfully defending his title only four times.

In a sense, Frazier was on the wrong side of history. His name will forever be linked to that of Muhammad Ali because his career was largely defined by his three bouts with Ali, considered by boxing experts among the greatest fights ever staged. Frazier defeated Ali in the first of those bouts on March 8, 1971, a 15-round battle that saw Ali dropped to the canvas for the first time, suffering the first defeat of his professional career. Ali took their next two fights, including the brutal 1975 spectacle referred to as the “Thrilla in Manila” that saw Frazier, blinded by Ali’s repeated jabs, prevented by his corner from emerging for a fifteenth and final round.

The 1971 Frazier-Ali bout was deemed “The Fight of the Century,” one of the most anticipated boxing events ever. Ali, a conscientious objector to the Vietnam war, was criminally charged and convicted in 1967 for refusing induction into the U.S. armed forces (his conviction was eventually reversed by the U.S. Supreme Court on June 28, 1971). Ali’s boxing license was suspended and he did not fight for more than three years. When Ali’s license was restored in late 1970, the stage was set for his 1971 bout with Frazier, a battle of undefeated champions in the prime of their careers.

Frazier lacked Ali’s flash and charisma. While Ali loudly proclaimed himself “the greatest of all time,” Frazier went quietly about his business of training and preparing for his next fight. He never attained the world-wide renown and adulation of Ali – yet many believe that Ali would not be Ali without Frazier.

Frazier retired from boxing in 1981 at the age of 37. His death was mourned by many who, like myself, grew up in the 1970’s and remember him as a quiet, proud man whose name and career were synonymous with professionalism. He is remembered fondly, particularly in his native Philadelphia, where he is considered a hero and community icon.

Contrast Frazier with Joe Paterno, iconic coach of the Penn State University football team.

For over six decades (four of them as head coach), Paterno had been the king of college football, overseeing one of the most successful programs in the country. Paterno was deemed an educator who valued sportsmanship and integrity more than his teams’ abundant success on the gridiron. At the age of 84, he was a beloved and revered figure in the sport, and the universal belief was that he would continue coaching until he decided it was time to walk away. When that time came, all assumed that he would depart the game with his head held high. His reputation and legacy were beyond reproach.

All that changed in the span of days.

Late last week, a grand jury indicted Paterno’s long-time friend and defensive coordinator, Jerry Sandusky, charging him with the repeated and systematic sexual abuse of young boys on university grounds over several years. Further, two university officials, including the school’s athletic director, were also indicted based on the grand jury’s finding that they were aware of, yet ignored, Sandusky’s actions.

Paterno testified during the grand jury proceedings that he was made aware by a graduate assistant of a 2002 incident involving Sandusky and a 10-year old boy in the showers of the team’s football complex. The graduate assistant had witnessed the criminal act and notified Paterno, apparently believing that Paterno would contact the proper authorities. Paterno immediately brought the incident to the attention of the university’s athletic director, following school protocol that required notification of Paterno’s superiors.

However, neither Paterno nor anyone else at Penn State ever notified university police, which allowed Sandusky to continue his alleged pattern of abuse unabated for several additional years.

Paterno is not being targeted in the criminal investigation. Local authorities have stated that, by notifying his athletic director, he complied with his legal obligation under the circumstances.

Whether Paterno complied with his moral obligation, given the nature and severity of the act by Sandusky reported to him, has been openly debated for the past week. When the grand jury findings became public, pressure mounted on Paterno and the university’s president to resign or be stripped of their positions.

Earlier today, Paterno announced that he would retire at the end of this season, indicating that the effects of the child sex abuse scandal have been “overwhelming.” This evening, the university's Board of Trustees terminated Paterno's tenure as head coach, effective immediately.

And so ends the career of the man once deemed to embody all that was good about college football. He leaves no longer a hero, his legacy tainted by a scandal unlike any ever witnessed by the sport.

While Paterno is not a “villain” in the traditional sense, his public image has been forever altered. It is sad to think that he will be remembered not for the positives he brought to the sport over a span of 62 years, but for the sordid scandal that led to his departure.

Yet when one thinks of the abuse allegedly wrought upon young victims by Sandusky, and the realization that one call by Paterno to campus police might have prevented several of the assaults, it is difficult to remember Paterno in any other light.

Monday, October 31, 2011


“Almost” only matters in horseshoes and hand-grenades.

This phrase was often repeated by a local Hell’s Kitchen character whenever my childhood friends and I discussed near accomplishments.

He was right, of course. We like to tell our children that “trying” is what is important, that “it is not whether you win or lose, but how you play the game.” Yet no one remembers the name of the person who nearly discovered penicillin, nor of the aviator who came close to crossing the Atlantic before Lindbergh’s famous flight.

Last week, the Texas Rangers twice came within a strike of winning their first World Series. Theirs was a fascinating tale. Their best pitcher fled to Philadelphia after the Rangers lost the 2010 World Series, believing that his chances of attaining a championship would be much improved with the Phillies. Their best player, Josh Hamilton, abused alcohol and drugs for years, nearly losing both career and life, before coming to grips with his addiction and evolving into one of the best players in the game. As a tribute to Hamilton’s struggles and perseverance, after the Rangers won the 2010 American League championship, players celebrated on the field with ginger ale, rather than the traditional champagne. The team’s manager, Ron Washington, disclosed prior to the 2010 season that he had tested positive for cocaine during the previous year, a mistake which he acknowledged and for which he apologized. Many speculated that Washington would be fired, but management and ownership supported him, and he rewarded that support by leading the Rangers to the first World Series appearance in franchise history.

A Rangers victory in 2011 would have yielded an intriguing story. Yet that story will never be told. The St. Louis Cardinals battled back from the brink of elimination and defeated the Rangers in seven classic games. The thrust of journalistic attention will therefore focus not on the Rangers, but on the Cardinals’ historic championship run. St. Louis almost missed the playoffs, overcoming a double digit games deficit in September to qualify for post-season play on the final day of the regular season. That is what will be remembered from the 2011 baseball season – not the Rangers’ successful defense of their American League title.

In the early 1990’s, the Buffalo Bills played in four consecutive Super Bowls, the only team in NFL history to attain that feat. Yet the Bills are noticeably absent from discussions of the game’s greatest teams. They are never mentioned with the Pittsburgh Steelers, Dallas Cowboys, New England Patriots or San Francisco 49ers because the Bills lost all four of their championship games. Likewise, their on-field leader, Hall-of-Fame quarterback Jim Kelly, never attained the glory or stature of Joe Montana, Terry Bradshaw or Tom Brady, all of whom won multiple NFL championships.

In 2007, the New England Patriots took an unblemished record into the Super Bowl, matching the 1972 Miami Dolphins’ accomplishment. But the Patriots were defeated by the New York Giants in Super Bowl XLII. Thus, when we speak of classic undefeated seasons, only the Dolphins are mentioned. The Patriots receive little recognition for their near accomplishment.

The city of St. Louis is celebrating. Championship parades are being staged for the Cardinals and their retiring manager, assured Hall-of-Famer Tony La Russa. Thousands are expected to attend.

It is uncertain whether Dallas will host any parades for its defeated two-time defending American League champions. Yet, even if consolation celebrations are held, it is difficult to imagine thousands of fans lining the parade route and showering the Rangers with chants of “We’re number two!”

Monday, October 10, 2011

A Special Message from Netflix

Dear Netflix Subscriber,

We still can’t understand it. When we announced in September our plans to split off DVD rentals from streaming services, we assumed that our customers would embrace the opportunity to maintain two separate accounts (streaming on Netflix and DVD rentals on Quikster), with different websites, different ID names and different passwords at twice the cost of traditional Netflix services.

We were wrong. Since we made the announcement, nearly one million customers have left the Netflix family, and account cancellations continue to arrive daily.

Our investors are unhappy. They see our decision to abruptly deviate from the “ease of use” formula that has traditionally made Netflix successful as a corporate mistake rivaling Coca-Cola’s 1985 ill-fated formula change.

You have spoken and we have listened. The message is loud and clear: if we want to maintain control of Netflix and our substantial annual incomes, we must re-evaluate our plans.

The first step in the re-evaluation process is a review of the origins of the idea. Why did we decide to make the change? Who was responsible? Our investigation has revealed that the source of the idea was a mailroom employee at Netflix’s main offices in Los Gatos, California. You may rest assured that the individual is no longer employed by Netflix and the company plans to post his address, telephone number and photograph on the Netflix website to give you, our valued customer, the opportunity to express your dissatisfaction directly to him. We will also include a direct link to the individual’s Facebook page, so that you may share your frustration with others. Our principal goal is to enable you, our valued customer, to assuage your rage with the same seamless ease that has traditionally defined Netflix.

The next step in the re-evaluation process is righting the wrong created by that ill-advised former Netflix employee. So we are going to keep Netflix as the one place to go for streaming and DVDs. That means no major changes: one website, one account, one password… in other words, no Quikster. The only noticeable change is that Netflix will now be called Netflix Classic, consistent with Coca-Cola’s resolution of its own PR fiasco.

Don’t get us wrong – we are still raising our prices more than 60 percent. We feel strongly that the increase is justified by the more than 3,500 second-rate TV episodes that have been added to our streaming selection over the past few weeks. We believe that the addition of thousands of shows no one wants to watch more than offsets our recent loss of the rights to top quality programs such as Showtime’s Dexter and our inability to secure the rights to any HBO programs (curse you, HBO-Go!).

So please, give us another chance. If you are one of the one million Netflix subscribers who left as a result of our former employee’s decision, please come back. We will make your return to the Netflix family as painless as possible. And, to avoid the possible stigma that may attach to perceived “turn-coats,” we will continue to charge your credit card for the entire period of your absence. It will be as if you never left!

We value you as a member, and are committed to making Netflix the best place to get your movies and TV shows.


The Netflix Team

Monday, September 26, 2011

On the Field

The game is easy: throw the ball, hit the ball, catch the ball. The difficulty lies in execution. Baseball is, after all, a sport played by men with human flaws and frailties, subject to the ebbs and flows of life.

Spring training traditionally breeds speculation. Teams are analyzed and scrutinized based on previous years’ performances. Prognosticators anoint their would-be champions, favoring those squads that look best on paper. The problem, as traditionalists will tell you, is that the game is not played on paper – victors are determined on fields of dirt and grass.

The human element of baseball comes to mind due to last week’s release of Moneyball, the Brad Pitt vehicle directed by Bennett Miller, of Capote fame. Based on an excellent 2003 book of the same title by acclaimed author Michael Lewis (whose take on the 2008 financial crisis, The Big Short: Inside the Doomsday Machine, appeared on bestsellers lists for several months), Moneyball relates the story of Billy Beane, long-time General Manager of the Oakland A’s, who successfully competed with large market teams during the early part of the new millennium by abandoning traditional scouting techniques and focusing almost entirely on statistical analysis.

Beane’s innovative twenty-first century approach, adopted by other small market teams in subsequent years, revolutionized a sport that, despite its glorification of records and numbers, had been reluctant to abandon the “gut check” method of scouting and player development. While the Yankees and Red Sox lured high profile athletes with big money and the promise of media exposure, Beane focused on less heralded college athletes who did not necessarily possess the traditional tools of the sport (such as power and speed), but who reached base often enough to earn high spots on the A’s unorthodox list of prospects.

The problem with Moneyball is that its principal premise is somewhat dated. After turning down an offer from the large market Red Sox to assume management of its front office (electing instead to remain in northern California, close to his daughter from an earlier marriage), Beane’s baseball success came to a halt. After trading away key players inherited from his predecessor with the A’s, Sandy Alderson (now General Manager of the large market New York Mets), Beane’s teams simply stopped winning. This unfortunate epilogue is conveniently omitted from the Hollywood version of the Billy Beane story.

The eventual dilution of Beane’s success is not surprising because, despite his efforts to prove otherwise, numbers in baseball do not tell the whole story. Quite often, the difference between winning and losing is a hard slide into second base to break up a double play, or hitting the cutoff man to keep the tying run from reaching scoring position – acts which take place on the field and can not be quantified or easily inserted into statistical columns. That is where execution and the human element assume paramount importance.

While the average fan may view baseball players as commodities to be preserved or discarded, depending on the needs of fantasy teams, the product which Beane puts on the field is a matchup of men against men. Beane’s men in recent years have lacked the skill of their opponents. Not surprisingly, the Oakland A’s have not fielded a winning squad since 2006.

This does not mean that Beane, a charismatic personality whose popularity will certainly be enhanced by his association with Brad Pitt, has failed. On the contrary, he will always be remembered as an innovator in a sport that has historically abhorred change – how else could one explain the sport’s refusal to accept black major leaguers until 1947?

Too much emphasis is placed on the off-field impact of men like Beane, whose success will always be measured by what takes place on the field. Players – not owners, managers or general managers – win games. The true role of back-stage players such as Beane is to select athletes, put them on the field, and let them do their thing – while trying to maintain a safe enough distance to avoid mucking things up.

Tuesday, September 13, 2011

Summer of '83

It was short commute, thirty minutes door-to-door. I hopped the A-train at 42nd Street and emerged at Chambers Street to join a sea of grey and blue flowing in waves towards the city’s financial, business and legal centers.

One Hogan Plaza housed the offices of Robert Morgenthau, District Attorney for New York County since 1975. It was the summer after my first year of law school and I had been hired as an intern by Morgenthau’s office, a position that paid little but offered opportunities to delve into the law and observe trials. This was my first job within my chosen profession, and would help shape later decisions in my career.

I had been assigned to “Rackets,” a division housed by young, ambitious and idealistic professionals with the unenviable task of attempting to control the city’s organized crime. I was one of three interns with the Division. The others were Lisa, a pretty first-year student from St. John’s who, for some reason, spoke with a British accent despite her Brooklyn upbringing, and Jerry, a second-year student from Brooklyn Law, whose father was a judge in a civil division. We worked together in a common area, researching legal issues and helping the ADA’s prepare for hearings and trials.

“Rackets” was an elite division within the D.A.’s office. Most divisions were trial-oriented, its attorneys assigned to particular judges. ADA’s in trial divisions had virtually no down time; they moved from one trial to the next, with little time to prepare, relying on secretaries and interns to fill in gaps. “Rackets” was different. Trials were few, and preparation abundant. The ADA’s worked with investigators to prepare their cases and only filed charges when cases were ready.

Investigations often involved field work, and one of the highlights of my summer was a visit with an ADA to a temporary surveillance center in the basement of a building across the street from a target, a seller of furs suspected of trading in stolen merchandise. The center was everything that I imagined: televisions screens depicting activity inside the target’s store, detectives watching the screens and listening over earphones to selected conversation, with audio and video recorded for further analysis. I would later spend time reading through transcripts of audio recordings, highlighting those portions that would help make the case.

Because trials in “Rackets” were scarce, I was given the chance to observe trials in other divisions. I selected a second-degree murder case involving guns, drugs and adultery. The trial lasted three days and the jury deliberated less than two hours before returning a guilty verdict. Later that day, as I related my experience to one of the senior members of “Rackets,” he smiled and nodded. “Convicting the guilty is simple,” he said. “Only the great ones convict the innocent.”

When I think back over my career, I can attribute my decision to become a litigator to my experience that summer. I pictured myself standing before the court, putting on evidence, cross-examining witnesses. I imagined the adrenaline, the rush that every litigator experiences when a trial begins, and I knew that is what I wanted.

I told this to Jerry, my fellow intern, over lunch one day. Jerry was an expert on the local cuisine, having learned of the best places from his father, who presided in a nearby courthouse. We ate that day at what Jerry referred to as “the Chinese McDonald’s,” a small basement restaurant on Mott Street decorated with police photographs and memorabilia. It was a favored destination of the NYPD and featured the best Sesame Noodles in the city. Jerry and I spoke of our experiences, our goals and ambitions, all-the-while dining on Chinatown’s best.

After lunch we took a shortcut through a small alley to Baxter Street and walked south towards One Hogan Plaza. As we approached our building the crowds suddenly appeared, men and women in suits, walking briskly in every direction, heading back to their offices while lost in thought. The revolving doors to our building offered refuge from the waves, thousands of people pondering life, love, and future, lost in a dance of perpetual motion in the shadows of the World Trade Center.

Sunday, August 28, 2011

In the Eye of the Storm

They were ahead of their time - a team built on speed, while others plodded.

The University of Miami Hurricanes of the 1980’s helped reinvent the sport of college football. Before Miami unleashed its aerial attack and defeated previously unbeaten and overwhelming favorite Nebraska for the national championship on January 2, 1984, the college gridiron was dominated by running games. Dominant teams like Oklahoma, Alabama and Georgia followed a simple formula for success: build offenses around big, wide country boys on the lines to open gaping holes for sure-handed running backs. The ball was only aired when absolutely necessary. Even Joe Namath, whose aerial heroics in the AFL and NFL would later earn him a spot in the pro football hall of fame, took a back seat to the running game with Coach Bear Bryant’s Crimson Tide.

The Hurricanes, under coaches Howard Schnellenberger and Jimmy Johnson, took a different approach to the top. They developed a pro-style offense, throwing the ball frequently and sacrificing girth for agility. One by one, the traditional powerhouses fell to Miami’s inventive strategy. It soon became clear that the only way that others would successfully compete against the Hurricanes would be to emulate their approach. This forever changed the sport of college football.

Yet there was more to the evolution of the Hurricanes than a creative offense. The teams that Schnellenberger and Johnson put on the field, the teams that consistently defeated all others, were unlike any previously seen in the sport. The players were arrogant, unabashed, and decidedly urban, many emerging from inner city high schools (which often scared away recruiters) with apparent chips on their shoulders, a sense that they had something to prove.

The Hurricanes’ rise to the top was far from universally embraced. There was a sense of outrage that these players, so unlike anything previously seen in the sport, could so successfully thumb their noses at the establishment. Their antics were criticized, their accomplishments besmirched to such an extent that games against the University of Notre Dame were dubbed “Catholics vs. Convicts.” In the mid-1990’s Sports Illustrated columnist Rick Reilly, never a fan of the Hurricanes, went so far as to suggest that the University of Miami football program should be disbanded.

Recent revelations about problems with the university’s athletic program have unleashed a new bout of anti-Hurricane sentiment. Yahoo.com’s story about booster (and incarcerated ponzi schemer) Nevin Shapiro’s ties to the football team have reawakened university critics, with Sports Illustrated once more calling for the disbanding of the football program.

The story is decidedly not pretty, replete with allegations of millions of dollars spent by Shapiro over a decade on gifts for athletes while administration and coaches looked the other way, content to focus their attention on the thousands of dollars (reportedly ponzi funds) that Shapiro donated to the university. There are stories of South Beach parties, luxury yachts, big screen televisions, strippers, and even an abortion, paid by Shapiro for Hurricane players.

When questioned about these allegations, former Hurricanes now in the NFL did not issue the expected denials. Their attitude was not “that did not happen,” but rather “I don’t have time to deal with this.” The reality is that, if the money flowed as freely and openly as the Yahoo.com story suggests, denials would be useless. Thus, the former Hurricanes’ “candor” is as smart as it is refreshing in a sport where hypocrisy rules.

In January of this year, the college football national championship game was played between Auburn and Oregon, two schools under investigation for major NCAA violations. It was alleged, for example, that, before he settled on Auburn, the father of star quarterback and Heisman Trophy winner Cam Newton (the first pick in this year’s NFL draft), tried to sell his son’s services to other schools. While conducting its investigation (an investigation that is still ongoing) the NCAA cleared Newton to play in the championship game, thus ensuring big television ratings and big paydays for both schools, their conferences, and the NCAA.

The NCAA acts only when compelled. Its stripping USC of a national title was effectively forced upon it by a story (with an eerie similarity to that of the Hurricanes) about the lavish lifestyle of star running back and Heisman Trophy winner Reggie Bush funded by a generous booster. The NCAA (like the universities themselves) looks the other way until it no longer can, and then acts belatedly, after all (athletes and coaches) involved in the scandal of the month are no longer with the universities. When the NCAA brings down its enforcement hammer, it is usually on athletes and coaches who were not around when the infractions occurred.

That is what is happening at the University of Miami today. There is a new athletic director and a new football coach, neither of whom was reportedly alerted of the NCAA’s pending investigation and its possible consequences when they were offered their jobs. There is talk of the “death penalty,” the enforced closing of the university’s football program, which will effectively put the new coach out of a job, and leave many student-athletes, who may or may not have been involved in the sanctioned conduct, in a state of limbo.

The reality is that the NCAA is unlikely to impose the “death penalty” on UM, much to the chagrin of its critics. University President Donna Shalala is too politically well-connected, and the NCAA’s prior limited experience with the “death penalty” has not been favorable. Thus, if the allegations are proven, the University of Miami will likely be fined, stripped of scholarships and TV appearances, and forced to endure a decade of futility on the football field.

Like many other penalized schools, UM will survive its moment in the NCAA spotlight. There is little new about the Hurricanes’ story. The major difference between this and prior scandals, such as Ohio State’s “tattoos for memorabilia” allegations that cost coach Jim Tressel his job, is the apparent openness with which UM athletes thwarted the system.

The University of Miami is, once again, a groundbreaker in the sport of college football. Rather than hide their transgressions, Hurricanes past and present appear to be embracing their renewed “outlaw” image. And perhaps the public should, as well. After all, the Hurricane name is now universally associated with money, parties and strippers – and isn’t that what college football is all about?

Saturday, August 13, 2011


Twenty five years.

Much happens in a quarter century.

In 1986, I was a first-year attorney, learning my craft, beginning to understand the elusive concept of “the law.” I had moved to Miami from New York the prior June after graduating from NYU. For the first time in two decades I had no classes to attend. I was a grown-up working in a grown-up world – or at least pretending to be.

Patricia moved to Miami in early summer and enrolled in the MBA program at UM. Our wedding was scheduled for December, two days after Christmas. We bought our first house, a pre-construction, zero-property line dollhouse, designed with the look of New England in a small, un-gated community called “Hampshire Homes.” We awaited our nuptials, and completion of our home’s construction, in a small, second-story apartment in a lesser part of Coral Gables.

I was an avid sports follower back then – much more passionate than I am today. I was particularly enamored of the Mets, and 1986 was a great year to be a Mets fan.

They were the best and most colorful team in baseball, a collection of characters with nicknames such as Mookie, Nails, Mex and The Kid. While first baseman Keith Hernandez and catcher Gary Carter were the leaders of the team, veteran all-stars with an affinity for the media, the future of the franchise was in the hands of two young players approaching superstar status. It was universally assumed that Dwight Gooden and Darryl Strawberry were launching what would assuredly be Hall-of-Fame careers. They were young, tall, athletic and very talented. Their future appeared boundless.

The Mets dominated the National League East, winning a major league high 108 games, and finishing 21.5 games ahead of the runner-up Phillies. After edging the Houston Astros in an exciting six games in the National League Championship Series, the team squared off against the Boston Red Sox and their own assured future Hall-of-Famer, Roger Clemens, in what would be acknowledged as one of the best World Series ever played.

Game six was the classic. Trailing by two runs with two out in the tenth inning, and two strikes on Gary Carter, the Mets staged an improbable comeback, highlighted by Mookie Wilson’s slow roller through the legs of Bill Buckner that allowed the winning run to score. I watched the entire rally on a small bedroom black and white set, while Patricia studied for an exam in the living room. My hand rested on the on/off button during the entire bottom half of the tenth inning. I resolved to stay with the game through its conclusion, but had no intention of watching the Red Sox celebrate after the final out. The final out never came, my fingers left the on/off button when I leapt into the air as Ray Knight crossed home with the winning run. There was then no doubt that the Mets would win the Series, and the Curse of the Bambino, which had plagued the Sox for more than sixty years, since the team sold soon-to-be immortal Babe Ruth to the hated Yankees, would again become the subject of sporting conversation.

I look back at our wedding photos from that December and can not believe how young we looked. Many of the faces on those photos have disappeared, taken by age, illness or distance. Much happens in a quarter century.

Patricia and I are celebrating our twenty-fifth anniversary this December. The intervening years saw us celebrate the birth of our twins, mourn the loss of Patricia’s father, and survive the devastation of Hurricane Andrew. Through it all our love and commitment for each other has endured. When I look at her, I still see the girl with whom I fell in love.

The Mets have not won another championship. Sure Hall-of-Famers Gooden and Strawberry saw their careers derailed by drugs and alcohol. Roger Clemens stands accused of lying to Congress concerning his use of performance-enhancing drugs. He will likely be boycotted by Hall-of-Fame voters. The Red Sox forever put to rest the Curse of the Bambino, winning two championships after the millennium, and leaving the Chicago Cubs alone in lamenting their own Curse of the Billy Goat. “The Kid,” Gary Carter, is fighting for his life, trying to overcome a series of brain tumors.

My office near the center of the Gables overlooks a small movie theater featuring foreign and independent films. It is a recent addition to our neighborhood and brings to mind the days of my youth in New York, before multiplexes spawned and standing in line for a movie was a regular weekend event.

I am no longer the bright-eyed novice embarking on a legal career. I am instead a partner in a firm of fourteen that bears my name, charged with management of people and cases. I like to think of myself as I once was, but the reality is that change comes to all, and we either embrace it or mourn an unattainable past.

Sunday, July 31, 2011

Turning the Page

You’ve got mail.

The iconic AOL tagline was also the title for the 1998 Tom Hanks/Meg Ryan vehicle, which failed to match the popular and critical success of their prior collaboration, Sleepless in Seattle (1993). The film dealt with the struggles of a small children’s bookstore confronted by a mega-chain, which usurped business through lower prices. The film was effectively a morality tale about the evils of “big business” and its adverse effect on “the little guy.” Technology, in the form of the then surging AOL e-mail service, played a role in the film, symbolizing the inevitable change that ultimately doomed the local bookstore. Despite a lukewarm ending necessary for box office success (the film was marketed as a romantic comedy) the message was clear: times are changing, and the wave of the new will sweep away the familiar.

Fast forward thirteen years: last week Borders, one of the largest bookstore chains in the United States, announced the imminent closing of all stores. Borders opened its first store in Ann Arbor, Michigan in 1971, and over the next forty years grew into the type of mega-chain vilified by the film. Ironically, the cause of the chain’s demise was the very evolution and technology credited for the rise of the mega-chain in the 1990’s.

The public’s widespread access to, and use of, the internet as vehicle of purchase, coupled with the rise of Amazon, has forever changed the way books are sold. The ease of Amazon’s one-stop shopping has made the traditional trip to the bookstore all but obsolete. Moreover, the recent rise of e-books (again led by Amazon with Kindle) threatens to make traditional book publishing (and consequently traditional book selling) a thing of the past.

Barnes and Noble, Borders’ principal competitor until Amazon came along, has made significant strides in adapting to the realities of the new book selling world. B&N jazzed up its on-line bookstore, contracted with Starbucks to open coffee houses within its stores, established relationships with universities (college bookstores are one of the few remaining links to the book selling past – although this also is changing) and even developed its own e-reader, NOOK, to compete with Amazon’s Kindle. Despite its efforts, B&N’s profits are significantly down, and it remains to be seen whether it can successfully navigate the waters of the new book market. Still, while Borders’ stores are holding closeout sales, B&N’s operations continue uninterrupted.

Borders failed because it was slow to react to the changes in book selling technology. Its efforts to modernize lagged well behind B&N’s, thereby cementing its fate as the first of the mega-chains to fall.

I have very fond memories of Borders. During my children’s early years, our local Borders store became a frequent weekend destination. We would arrive as a family and quickly scatter, my kids scurrying to the children’s section, while my wife and I traversed the literature and mystery stacks. My kids learned about such authors as Dr. Seuss at Borders, which helped develop their appreciation for the written word.

Over the years my own approach to books and book purchasing has changed. I am a frequent visitor to Amazon.com, and my Kindle has become a favorite traveling companion when business takes me on the road. Still, whenever I visit a new city, I like to wander through the stacks at the local Borders or B&N, comparing the items on display to those featured at Miami locations. This helps me better understand the culture and, consequently, the people of the city.

The failure of Borders may mark the beginning of the end of book selling as we once knew it. Ironically, the sole surviving traditional bookstores may be local, specialized shops which develop community presence and local following through support of local authors and book signings.

I will miss my Sundays at the bookstore, even as I order the latest releases for immediate delivery with the touch of a button on my Kindle. Our evolving technology makes book buying much easier, but it will never truly replace, nor even approach, the smell of musty stacks, the breaking of the binding, or the anticipation that accompanies the turning of a page as we dive headlong into the world of the written.

Sunday, July 10, 2011

Harry Potter and the Lost Crusade

The countdown has begun. After years of buildup, the final chapter is at hand. Crowds are forming, many camping out for days in anticipation of the opening of doors. All minds are on the conclusion of the saga, with little talk of anything else. It is the most anticipated media event of the year.

And it will take place the same week as the release of the final Harry Potter movie.

Orlando is a city renown for entertainment. Its amusement parks draw millions of visitors annually, with The Wizarding World of Harry Potter the latest and most popular of Universal Studios’ attractions. Yet the focus of most Orlando eyes this week will be not on amusement park rides or cinematic premieres, but on the doors of the county jail, from which Casey Anthony will soon emerge a free woman.

It was not supposed to end this way. The talking heads at HLN (new motto: “All Casey Anthony, All The Time”) assured us that she would be convicted of first-degree murder. When the CNN affiliate decided to alter its format from news to scandal, it expected to carry the story through its logical conclusion: Casey Anthony’s death at the hands of the State.

Yet something happened on the way to better ratings. Despite all assurances, despite network plans to further enhance its coverage of the story, a jury of twelve convened and found Anthony “not guilty” of the most serious charges against her. They acknowledged that she lied to police, and Anthony’s final days in custody will complete a four-year sentence imposed by the judge on those charges. But there will be no execution, no stories about death row appeals or Anthony’s last days on earth. Instead, Anthony will emerge from the Orlando jail to face angry crowds, civil litigation, and disappointed “journalists.”

The media personalities at HLN are trying to make the most of a bad situation. With their credibility questioned, they are attacking the intelligence of the jury and the effectiveness of our judicial system.

HLN’s Nancy Grace, the self-anointed leader of the “Anthony Death Sentence” movement, an apparent graduate of the Hogwarts School of Journalism, would prefer to believe that Lord Voldemort cast a spell on the proceedings. It would be easier to blame the “not guilty” verdict on dark powers, rather than inconclusive evidence and prosecutorial overreach.

But, with Anthony’s image fading from our television screens, the focus of public frustration and scrutiny is increasingly shifting to television commentators and legal analysts. The public feels manipulated and misled by Grace and her counterparts, who may have violated a public trust by placing self-interest before journalistic integrity.

Nancy Grace refuses to acknowledge either responsibility or defeat. She continues to highlight Anthony on her nightly show, refusing to refer to her by name, and instead calling her “Tot Mom.” She has gone on the offensive against those who would find fault with her approach to the case – yet arrogance and self-righteousness make for bad television.

After the jury returned its verdict, a friend confessed that she would watch Nancy Grace that evening because she wanted “to see her head explode.” Had HLN’s management arranged for such a spectacle, ratings would have been substantially higher.

Monday, June 27, 2011

Storm Warning

We seldom recognize evil at its birth. We see warning signs, but fail to grasp their meaning. It is only later, when the unthinkable occurs, when lives are shattered and we stare in disbelief at the desolate landscape left behind that we realize the significance of what we have witnessed. Yet by then it is too late and we are left to wonder whether things might have been different had we seen through the façade to the darkness that lay within.

In 1933, President Franklin D. Roosevelt appointed William E. Dodd as United States ambassador to Germany. Dodd was not Roosevelt’s first choice for the post. His was the third name on a list of possibles, and he was selected only after the first two turned the President down.

Dodd was an academic, a University of Chicago professor whose principal goal was to write a history of the South during the Civil War. He had no political aspirations and no desire to represent the U.S. abroad. He accepted the post due to a sense of patriotism and out of deep respect for Roosevelt, who personally entreated Dodd to take the position after being rejected by his preferred candidates.

Dodd and his family arrived in Berlin at the outset of the Nazi regime. He was skeptical of rumors about Nazi mistreatment of Jews, and assumed that they were exaggerated. His daughter Martha, a twentyish divorcee with liberal sexual attitudes and a thirst for adventure, immediately fell for the pageantry of Nazi parades and the contagious excitement with which the German populace embraced their leader, Adolph Hitler. Over the next three years, however, the veil of deception lifted and the Dodds were able to witness firsthand the brutality and amorality that would eventually define the Nazi government.

The story of the Dodds and their time in Berlin, during the formative years of Nazi Germany, is powerfully related by Erik Larson in his gripping In the Garden of Beasts: Love, Terror, and an American Family in Hitler’s Berlin (2011). Larsen, the author of The Devil in the White City: Murder, Magic and Madness at the Fair that Changed America (2003), one of the better works of American non-fiction of the new millennium, uses journals, correspondence and writings of the time, to bring to life the tale of the Dodds’ awakening to the evils of the Nazi world.

Told in a style reminiscent of the stories of spy novelists John le Carre and Len Deighton, In the Garden of Beasts reads like a work of fiction. Larson’s short, unswerving chapters operate as a series of doors opening gradually to the reality of Nazi Germany. Dodd’s growing alarm at the unabashed violence around him is at times matched by the apathy and thinly-veiled anti-semitism he encounters within the American State Department. His warnings are not heeded, and the Nazi brutality against Jews, Americans and all who pose opposition to the National Socialist German Workers’ Party continues unabated.

The story climaxes in what has become known as The Night of the Long Knives, Hitler’s purge and execution of actual and potential political opponents between June 30 and July 2, 1934. Shortly after the bloody events that cemented Hitler’s grip over the German nation, Dodd was recalled by Roosevelt at the urging of State Department officials who felt he had become too critical of the German government. History tells us what followed, but that part of the story falls outside the pages of Larson’s enthralling tale.

Larson’s story is filled with historical figures who today seem a distant memory: Hitler, Goring, Goebbels, Himmler – all the Nazi leaders are there, interacting with the Dodds and members of their social and diplomatic circles. We know who and what they are because we have the benefit of hindsight, which Dodd lacked. His was a gradual awakening to the horrors of Nazism, and that awakening is vividly related in the pages of Larson’s book. We see the evil as it grows, and the lapse of nearly eighty years is insufficient to insulate us from the feelings of unease we experience as the curtain draws upon a world soon to be forever altered by a monster in its formative stage.

Sunday, June 19, 2011

Oh Canada!

Nothing happened. There were no reports of riots, no instances of tourist attacks in an area that historically has seen its share of street violence.

When the Miami Heat, consensus favorites to win the NBA championship, blew the final series and lost the deciding game at home to an underdog and less talented Dallas team, fans strolled out of the American Airlines Arena, got into their cars, exited lots with inflated prices, and quietly drove home. There were no demonstrations of angst or anger outside the sporting venue, no confrontations with men in blue. All that police officers assigned to the event were left to do was stop traffic on Biscayne Boulevard long enough for departing fans to cross safely.

Contrast this with images from Vancouver a few days later. The Canucks attained the best record in the NHL during the regular season, and marched to the Stanley Cup finals as the favorite to defeat the Boston Bruins, a team with more grit than goals. The series went to a deciding game seven, played in Vancouver, where the home team had not lost. Then it all fell apart. Roberto Luongo, the all-star goaltender whom many have for years contended is the best in the game despite a scarcity of playoff accomplishments, gave up four goals to an underwhelming Boston offense. The rest of the Canucks team fared no better, succumbing 4-0 to the Bruins.

While the visitors celebrated their first Stanley Cup championship in nearly forty years, taking turns skating around the playing ice with the trophy held aloft, things quickly turned ugly outside the Rogers Arena. Film and photos from Vancouver displayed a city in chaos. Disgruntled fans looted nearby businesses, vandalized property and set police cars on fire. Police officers squared off against rioters, dodging flying objects, while non-participating fans stood by and watched.

Vancouver officials have blamed the violent display on fifty thugs whom they insist do not represent Canucks fans or the city of Vancouver. But in 1994, when the New York Rangers overcame a three-games-to-two deficit to defeat the Canucks in the series finale, Vancouver fans had a similar reaction.

I have been to Vancouver twice and my memories of the area are quite different from the media images of recent days. I recall a clean, inviting, pedestrian-friendly city with ethnic neighborhoods, restaurants and parks overlooking a picturesque bay. People were so friendly that it aroused my New Yorker’s mistrust: surely, the strangers who came up to us and offered help when they saw us struggling with a city map were up to no good!

The riots which last week engulfed the city were likely the result of national frustration. It has been nearly two decades since a Canadian team took home the ultimate prize in a sport Canadians claim as their own. Since 1993, five Canadian teams reached the Stanley Cup finals, all losing to American teams, with four of the five series extending to seven games. The latest near miss caused an eruption of emotion by the frustrated Vancouver fans, ardent in their support of their sport and their team.

There is a reason why Miami fans reacted differently. The city has long been dubbed a haven of frontrunners, with sporting events routinely playing before half-empty stadiums and arenas. The season-long excitement caused by LeBron James’ decision to bring his talents to South Beach waned as fans began their parade from the American Airlines Arena with time expiring in game six.

Miami fans will not change. They will exercise selective passion and sell out only big events, not the Thursday afternoon matchup of losing teams. Thus, Miami will never match Vancouver as a sports town. After all, nothing says “fan loyalty” like burning police cars.

Sunday, May 29, 2011

Money Matters

“It’s not about the money, it’s about the principle.”

The client is sincere. It is the outset of the litigation and he feels wronged, violated. He wants his day in court. He demands justice and financial considerations are far from his mind.

But that will change. As the case progresses and hits the inevitable roadblocks, as resolution is delayed by rules intended to assure fairness often achieving the diametric opposite, the bills will add up. And what was once inconsequential will assume paramount importance.

It is my job as counsel to focus the client on the financial realities of litigation. It is sometimes said that a bad settlement is better than a good trial, and there is truth to that. Settlement stems the financial bleeding, ensuring that the parties will survive to live (and possibly litigate) another day.

And so, at the outset of litigation, I focus the client on both the legal and financial aspects of the case. Because, in the final analysis, it is about the money and the principle. The two are often inseparable.

There was a time when wars were waged to strengthen struggling economies. The Romans, for example, used war to bring new riches into the empire. Triumphant parades were held in which the vanquished enemy was displayed in chains, surrounded by gold and other valuables forfeited to the conquering legions. Plunder routinely followed victory. The goods of the defeated became the assets of the victors.

But all that has changed. Today, victory in war is routinely followed by rebuilding of defeated nations, at least for Americans. Wars are expensive, and the financial bleeding does not end when the last shot is fired. Thus, success in war is no longer measured by the outcome on the battlefield. Human casualties are almost an afterthought. Success in war today is measured by dollars and cents.

Which is why the federal government’s prosecution of steroids users in sports is perplexing. Barry Bonds, Roger Clemens and Lance Armstrong have become the new public enemy, pursued relentlessly by prosecutors intent on making them examples for their lack of candor in the government’s steroids investigations. The message is clear: if you lie to the federal government, we (the government) will come after you, especially if you are a public figure and your fall from grace will be spread across tabloid headlines.

The federal government pursued Barry Bonds, the all-time baseball home run king, for more than half a decade because of his perceived lies to a grand jury over his personal use of performance enhancing drugs. A few weeks ago, after years of pre-trial proceedings, rescheduled trial dates, appealed court decisions, and a one-week trial in which the defense did not introduce a single witness, the jury deadlocked on the most significant charges against Bonds and found him guilty only of obstruction of justice, a result which will likely lead to probation, and no jail time for the athlete.

The cost to the taxpayer of Bonds’ prosecution is estimated to exceed 10 million dollars, which raises the question: in a difficult economy, where Congress spends most days cutting social programs to try to bring the federal deficit within some measure of control, should we be spending such amounts pursuing professional athletes for disrespecting authority? We can all agree that lying to the federal government is a bad thing, but does it justify the government’s pursuit of the perceived liars at all expenses?

If government were run like business, the pursuit of Bonds would have been subjected to a cost-benefit analysis at the outset. The correct business conclusion would likely have been not to spend so much on the prosecution and instead redirect funds to more profitable ventures.

Government is, admittedly, not business. The social contract that exists between a government and its people must be considered alongside issues of finance. The correct decision for government will not always be the most fiscally sound, particularly when issues of national defense are at stake.

But Bonds, Clemens and Armstrong pose no threat to national defense. They are athletes whose questionable actions have little discernable impact on societal norms. That is why finances must be considered by prosecutors deciding the extent to which they will pursue such athletes for lack of candor.

Bonds, Clemens and Armstrong are clearly being made examples by prosecutors intent on proving that no one, no matter how wealthy and famous, is above the law. But those prosecutors, as representatives of the people of the United States (the case is, after all, United States of America vs. Barry Bonds) owe a duty to the people to make decisions that are in the people’s best interests. And, in the present economic climate, finances must be considered.

Principle does not override all, not even for government employees intent on making a statement. Prosecutorial restraint must be employed to ensure that correct decisions are made, even if it means abandoning pursuit of public figures caught in a public lie. Money does matter, after all, despite our often cavalier attitude about its impact on what we perceive to be important.