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.

Saturday, May 21, 2011


I never check baggage at airports. I usually pack everything needed for a short business trip into a carry-on and store it in the overhead compartment. I can then relax in my aisle seat, confident of no problems upon arrival.

My recent trip was different: three cities in seven days (Palm Springs, St. Louis and San Francisco) with connections on all but the last leg. Three of the flights had departure times before 6:30 A.M. Even before I set foot on the first plane, I knew this was going to be a rough week. I was forced to check my garment bag – no way to pack a week’s worth of provisions into a roll-on.

At first, all seemed promising. I met my friend Jennifer, a fellow attorney who would join me for the first two legs of the trip, at MIA. The electronic board assured us that our 2:10 P.M. American Airlines flight to Dallas-Fort Worth, where we would catch a connecting flight to Palm Springs, was scheduled to leave “on time.” We boarded on time and departed the gate on time. Then all changed.

The plane did not head to the runway, but instead circled the outskirts of the airport and returned to the gate. The pilot announced that, due to bad weather in Dallas-Fort Worth, the flight would be delayed several hours – more information to follow. I then received an e-mail that our connecting flight, the last American flight of the day from DFW to Palm Springs, had been cancelled. There was no way we would make it to Palm Springs in time for our morning meetings if we stayed on this flight.

So Jennifer and I got busy. We called American reservations and explained the circumstances. We were placed on a flight to San Francisco, scheduled to leave in an hour, with a connecting Alaska Air flight to Palm Springs to depart soon after our arrival at the City by the Bay. The only problem: my bag would remain on the flight to DFW. I was told that it would likely arrive in Palm Springs the next morning.

We made our way to our new gate. The electronic board again assured us that the flight would leave “on time.” We boarded on time and departed the gate on time. Then, once again, all changed.

The pilot announced over the loudspeaker that, because of bad weather in Dallas-Fort Worth, our departure would be delayed by two hours. This meant that we would miss our connecting flight, unless it was similarly delayed. This time, we were offered no alternatives. We sat on the runway for two hours and hoped for the best.

When we landed in San Francisco several hours later, Jennifer checked the status of our connecting flight. It too had been delayed and had not yet left the gate. Because we had been placed on the San Francisco flight at the last moment, our seats were near the rear of the plane. Thus, we waited for the nearly thirty rows ahead of us to empty before we managed to exit the plane, Jennifer all-the-while checking her smart phone for the status of our connecting flight.

We arrived in Concourse D. Our connecting flight, which Jennifer’s phone told us had not yet departed, was to leave from Concourse A. We asked, and were told that, in order to get to Concourse A, we would have to exit security. We ran for what seemed a half-mile through the emptying corridors of the airport (it was now nearly 9:00 P.M.), our roll-ons trailing behind. We again passed through security, where I was stopped briefly for a quick check of my carry-on. When we finally arrived at the departure gate, the plane was no longer there. We had missed it by a few minutes.

We learned that there were no other flights from San Francisco to Palm Springs that night. Jennifer suggested skipping Palm Springs altogether and flying to St. Louis, the next leg of our trip after our scheduled one-day stop in Palm Springs. However, neither of us wanted to miss our meetings the next morning. And there was another problem: even if we circumvented Palm Springs, my garment bag would not. It was still scheduled to arrive there the next day on an American flight from DFW.

We spoke with a local who suggested that we fly that night to Ontario (California) the closest airport to Palm Springs, about 90 miles away. We made our way to the American ticket counter and requested that they check for flights to Ontario on other airlines (there were none that night on American). After what seemed like hours, but was probably no more than a few minutes, we were placed on a United flight scheduled to depart at 10:40 P.M. While I dealt with the ticket agent, Jennifer was on the phone with her husband Bill, arranging for a rental car for the drive that night from Ontario to Palm Springs.

We eventually left the American counter, and headed to yet another airport concourse, where we would again go through security. This time, it was Jennifer’s turn to be stopped for a bag check. We arrived at our new gate on time, and even squeezed in a few minutes to eat. Our flight left on time, and landed in Ontario at around midnight. We then picked up Jennifer’s rental, which Bill had reserved for us, and began our 90-mile drive through desert roads to Palm Springs.

By the time we arrived at our hotel, it was nearly 2:00 A.M. We both had early morning meetings. With the time change, I had been up for nearly 24 hours. This was going to be a short night, and coffee would be at a premium the next day. My garment bag, presumably, was sitting in Dallas-Fort Worth, waiting for a morning flight to Palm Springs.

I awoke the next morning feeling surprisingly rested. Before I left for my meeting, I called American Airlines to check on the status of my bag. I was told that, because our last flight the previous day had been with United, I should check with them. I pointed out that American, not United, would transport my bag, but that did not persuade the American agent to provide additional information. I then asked whether the bag would be on the morning flight from DFW, as I had been told. The agent responded that I should check back after 10:40 A.M., when that flight was due to arrive and all bags would presumably be scanned.

After my meeting ended at 11:30 A.M., I again called American and asked whether my bag had arrived on the morning flight from DFW. The agent could not answer my question. Like the previous agent earlier that morning, he suggested that I contact United. I called United and explained the situation. I was told that there were no records of my bag anywhere at any time. It seemed to have vanished, quite literally, into thin air. I asked the United agent whether I should drive to the Palm Springs airport, less than 10 minutes away from our hotel. He responded that it would be a waste of time, assuring me that he would have a record of my bag if it had arrived.

I decided not to heed the agent’s advice and drove to the airport. I asked Airport Information for the proper procedure on filing a claim for my lost bag. I received conflicting responses from two representatives: one said I should file with American, the other with United. The one thing they agreed on was that the morning American flight from DFW had arrived a couple of hours earlier.

I was scheduled to leave for St. Louis the next morning, and had no other changes of clothing. As I pondered my options, I strolled through the baggage claim area. And then I saw it. In an inconspicuous corner, sitting in the company of two other bags, unguarded and unattended, was my garment bag. I grabbed it and made my way out of the airport, back to my hotel and the rest of the day’s events.

And so, after the bad weather, cancellations, runway delays, mad dashes through airports and midnight drives through the desert the previous day, the story had a happy ending. My bag and I were together again, ready for the next leg of our trip.