There are things we know we know, there are things we know we don't know and there are things we don't know we don't know."
Former Secretary of Defense Donald Rumsfield (Paraphrased)
There are four sorts of men:
He who knows not and knows not he knows not: he is a fool-shun him:
He who knows not and knows he knows not: he is simple-teach him.
He who knows and knows not he knows; he is asleep wake him;
He who knows and knows he knows: he is wise-follow him.
Lady Burton
Recently, I read a book entitled "Zen Golf" by Dr. Joseph Parent.
In the book there is a little Zen allegory that has had a profound effect on me and has considerably improved my golf game as well as my practice in the bizarre world of Workers' Compensation.
Empty Your Cup
A young man had read all the books he could find about Zen.
He heard about a great Zen master and requested an appointment with him to ask for teachings. When they were seated, the young man proceeded to tell the master everything he had understood from his reading, saying that Zen is about this and Zen is about that, on and on.
After some time, the master suggested that they have tea. He performed the traditional tea ceremony while the student sat at attention, bowing when served, saying nothing. The master began to pour tea into the student's cup. He poured until it was full and kept pouring. The tea ran over the edge of the cup and onto the table. The master kept pouring as the tea ran off the table and onto the floor. Finally, the student couldn't contain himself any longer. He shouted "Stop! Stop Pouring! The cup is full-no more will go in!"
The master stopped pouring and said "Just like this cup, your mind is full of your own opinions and preconceptions. How can you learn anything unless you first empty you cup?" (Zen Golf page3).
Tiger Woods could, justifiably, be arrogant about his golf game and conclude that he didn't need to practice much or constantly work on his game, however, having been trained in the oriental tradition, he remains as an empty cup and is always ready to learn more in the endeavor to master a game, that he would be the first to admit, cannot be mastered.
As a lawyer, it never ceases to amaze me how some of my clients insist on employing their "legal strategy" in place of mine. Why hire an attorney if you're not going to listen to his advice?
However, as an attorney in the PRACTICE of law, it would foolish, and dangerous, to be arrogant and assume that I have completely mastered my craft especially in light of the massive and confounding changes that were implemented with SB899.
And why do they call it the "practice of law" in the first place?
The first day of law school I was lucky enough to encounter Professor Arthur Schaffer and I always remember the first lesson this Zen master taught me.
He said the law can be summed up in one short sentence, "different words mean different things at different times".
The meaning of the word "practice," when applied to golf is understood to mean to keep doing an act until you become better at it. "Practice makes perfect" is a quip that comes to mind.
Thus a lawyer becomes a better lawyer as he gains experience.
But within the context of the term "The Practice of Law" there is a more esoteric and more significant meaning to the phrase. As mentioned in an earlier rant, the term practice includes the concept of PRAXIS which is the act of putting theory into practice.
In law one has a right based upon a legal theory of liability. Thus the Truly Injured Worker is entitled to disability benefits if it can be proven, with evidence, that he is in fact disabled.
The attorney's job is to identify a theory and then to put that theory into practice in court by presenting the evidence and argument that proves that theory. This becomes much more difficult than it sounds as the defense attorney is attempting to prove his theory by presenting evidence to the contrary.
Thus, it's one thing to say "we'll just have the witness testify that he saw you get hurt" and another thing entirely to actually get the witness to court and state what you want him to state. Often it doesn't work out quite the way you theorized. Thus, the "Burden of Proof" is truly a burden in the literal sense of the word.
The Optimist and the Pessimist
The optimist proclaims that we live in the best of all possible worlds; and the pessimist fears this is true.
Branch Cabell
One optimistic attorney, William Morris Esq., theorized that if he just got the ball rolling and drafted an approved initiative, to return to the Truly Injured Worker the right to pick his or her own doctor, it would take off like wild fire.
He believed that his colleagues and their association, (CAAA), would enthusiastically embrace it. Once the momentum got going it would expand exponentially and the 470,000 signatures needed to get it on the 2008 ballet would be a piece of cake.
Gathering the signatures is the first step or hurdle that must be overcome in order to get the initiative passed.
The State of California is not going to spend millions of dollars to print an initiative on several million ballots unless it can be demonstrated that at least a small portion of the voting public would vote for it. In other words, if we cannot get 470,000 signatures then, THEORECTICALLY, it is highly unlikely that the initiative has any chance of passing so why waste the money printing it.
Once it qualifies by the collection of the necessary signatures, the next step is to convince the voters to vote for it. There is little point in wasting our energy worrying about that process until we prove it's worthy.
(However, if you must dwell on the issue: how will we get it passed once we have completed phase one, the gathering of the signatures, please read my earlier rant How an Initiative Could be Won. Don't worry the chess master has already conceived a plan of action for that).
Most people who know me, I'm sure, would tell you that I am a pessimist. In fact, I would have probably agreed with them at least until I became aware of the courageous act of Mr. Morris.
When I heard that CAAA would not embrace the initiative I optimistically thought that once I wrote the rant, OH CAPTAIN, MY CAPTAIN, the local CAAA members would get the spirit of the Ninja and join Mr. Morris in this struggle to restore a semblance of Freedom and Dignity to the Truly Injured Worker.
When this didn't happen I started to collect signatures at the San Diego branch of the Workers' Compensation Court. I theorized that my fellow applicant attorneys would awaken and offer to become collectors of signatures themselves. I really believed that would happen.
So much for my theory.
In practice, the response was less than enthusiastic. Though most applicant attorneys I approached did sign the initiative not one asked to become a collector. None asked much of anything about the initiative and none could be prodded into becoming a collector.
What we have Hear is Failure to Communicate
Cool Hand Luke
What I got, from my fellow attorneys, was mostly the sympathetic look you might give a child selling lemonade on the corner telling you she was saving up for her college education.
A couple of my ESQUIRE brethren were too "busy" to stop and sign their name.
What really took the cake, though, is that the CAPTAIN, who attended the CAAA food and booze orgy, (otherwise known as the CAAA convention), in San Francisco, reported that the initiative wasn't even mentioned in CAAA's sojourn to find the lost Freedom and Dignity of their Truly Injured Worker symbionts.
Esquire
If you have ever received a letter from me in my capacity as a lawyer you might note that I never include the "ESQ", (the abbreviated form of the word Esquire), because I always thought it seemed pretentious. I had never taken the time to research this term and I was, therefore, ignorant of its true significance.
I note that many of my brethren have no compunction whatsoever, and revel in bestowing this title unto themselves.
These are same brethren who barely give Mr. Morris ESQ. the time of day with regard to his initiative while he was collecting signatures at the "CAAA Convention."
In continuing with this "sociological experiment" I have been conducting; I have been asking these Esquires what the word Esquire means.
To be honest it didn't surprise me that these masters of Zen Law had not a clue.
Typically, when you need a legal word defined one turns to Black's Law Dictionary.
Black's Law Dictionary defines Esquire as follows: "In English law, a title of dignity next above gentleman, below knight.
It might be of interest to note that in the United States of America it is technically illegal to have a title. The framers of the United States Constitution, having rebelled against the aristocratic pecking order of England , didn't want that type of system to emerge in the new born land of the free where "all men are created equal."
Notwithstanding the ban against titles many of my brethren seem to feel they are worthy of attaching a title of dignity to their name.
If a person is going to claim they are entitled to a title that conveys dignity they have the obligation to act dignified which means to act with honor.
I submit that the attorneys who make up the applicant's bar and have not taken any action to promote this initiative, other than signing it, should remove the ESQ. from their signature as they are not living up to such a lofty title.
The Knights and Their Symbionts
During the Middle Ages when aristocrats had a dispute, at times, the dispute would be resolve by designated Knights who would joust. While jousting the Knights were separated by a bar and would attempt to knock the other off his horse with a lance.
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The victorious Knight also brought victory to his Lord.
From time to time, the commoners, who had no standing, would be given the chance to select a Knight to represent them in a dispute.
This concept has been brought forward to our modern legal world.
The Attorney, a learned man, and woman these days, is conferred a title above the "commoner".
In most Courtrooms the Attorney, having been admitted into the "Bar", is separated from the people by a physical bar similar to the bar between the Knights of Old. In the Workers' Compensation Court the attorney's client remains in the waiting area while the attorney speaks on behalf of his client in the courtroom.
The attorney, as in days of old, is acting as the Knight, The attorneys "joust" and the victor also brings victory to his client.
Thus the attorney, who has agreed, for whatever reason, to represent the Truly Injured Worker, has the duty to represent the working men and women zealously. In failing to do so the attorney, like a Knight, would lose his dignity and honor and would probably loose his title as he certainly would not be deserving of it.
Moe the Cat
The other day I took my cat, MOE, to the veterinarian. When we arrived, MOE, who speaks to me telepathically, said "Pops, I don't like this veterinarian. I wanna t pick my own doctor."
I said "MOE, shut up, you're just an animal. You have no say in the matter. I'm paying for it and you'll go wherever I decide."...jeeeez the nerve of that cat!
With the advent of the Managed Provider Network the Truly Injured Worker has been stripped of his Freedom to choose his own doctor and, in doing so, has been stripped of his Human Dignity to decide who will be responsible for his life and limb.
IN SHORT, OUR SYMBIONTS ARE BEING TREATED NO BETTER THAN AN ANIMAL!!!
In fact, if you treated an animal as poorly as some of our symbionts you would probably wind up in jail for animal abuse.
Perhaps the Insurance Industry will discovery that they can "reduce costs" by using veterinarians. The next thing you know, the term, "Primary Treating Doctor", (PTP), will be replaced with the term Primary Treating Veterinarian, ( PTV)!
Considering the care some of the Insurance selected COMPANY DOCTORS provide this might be an improvement.
Sadly, by conceding the real issue at stake, the Dignity of the Truly Injured Worker, and by conceding this issue without a fight, my Esquire Brethren have, along with their symbionts, lost the dignity that is the foundation of title Esquire.
It reminds me of the movie "Rainmaker" in which Matt Damon plays a young idealistic attorney.
In response to some dirty tactics by the veteran insurance defense attorney, played by John Voigt, Damon says, "do you even remember when you sold out?"
We applicant attorney's will loose our honor if we do not fight for the dignity of our symbionts and we will no longer deserve our title of Esquire.
In the rant, "Are We Knights in Shining Armor or Mercenaries", I attempted to rebut the contention by defense attorney Dan Mozzarella that we were deluded in our belief that we are Knights. I made the argument that we are symbionts and not parasites as inferred by Dan. At best, at that time, I could conclude that we were Knights in Tarnished, rather than Shinning Armor.
Harkening back to the Knights of the Round Table the one thing that was clear was that the Knights would never betray their own brethren when the motto they lived by was "One for all and all for One?"
One of our brethren, who for honorable reasons only, WILLIAM MORRIS ESQUIRE, standing alone, has courageously challenged the dragon and has called for help from his fellow Knights.
What has our honorable response been?
SILENCE!
If General Patton, Old Blood and Guts, had adopted this attitude, that it's a loosing battle so why try, he would never have turned his entire army and, at record speed, arrived at Baston just in the knick of time to save the world.
The signatures must be collected by the beginning of September 2007.
If the unions went into action I'm sure that the signatures could be obtained. Some of our local brethren have been making a tidy living from their union connections. All of us have made a tidy living in this field and now is the time I to give something back.
In conclusion we must remember the words of a great man who stated:
Justice is a machine that, when someone has given it a starting push, rolls on of itself.
Gallsworthy
A local prominent Applicant's Attorney once told me to never be blinded by the fee. That was good advice. To that, however, I would add to never be blinded by your own arrogance.
Joel Geller ESQ.
P.S. Your comments on the commentary section are always appreciated.
- J. Geller
July 16, 2007
