The Silly Season

Plagiarize : to steal and pass off (the ideas or words of another) as one's own (Merriam-Webster Dictionary).

I think I must have plagiarized sometime today. I don't keep track, but that's the point. I know I said something to my friend at lunch. I know I spoke to my office mate. Not too long ago, I read the book "Mayflower" by Nathaniel Philbrick. Being excited to tell someone about Bradford's wife, being so distraught, due to her young child being left behind in England (after being told to do so by her overbearing husband) that she jumped to her death into the icy waters below once it anchored of the Cape; and that it was clear to me that the Mayflower Compact was a forerunner to the U.S. Constitution and the Declaration of Independence in that it provided limited government, I think I forgot to give the author of "Mayflower" credit. But then again, were did he get that idea? Then again, where did Thomas Jefferson get his idea?

By Jefferson's own admission, the ideas contained in the Declaration of Independence were commonly expressed throughout the 17th and 18th centuries. I remember studying about Locke and Hobbes in College and seeing that much of what Jefferson said was lifted to some degree. John Adams claimed that Jefferson also borrowed from Samuel Adams. I'm surprised John Adams didn't claim he wrote it. Perhaps they were friends. I recently learned that the Scottish philosophers in the 17th and 18th century probably came up with just about everything. The Irish undoubtedly will be shocked to hear this since they saved civilization in a time when the Romans were failing and medieval Europe was on the rise. Ireland had monks that liked to copy down everything. Oh, and then you can't forget the Dutch and their Oath of Abjuration. It basically discusses the idea of a people's right to denounce and overthrow their leaders should they fail to respect the people's laws and traditions. I got that from Wikipedia. Thomas Paine's pamphlet, Common Sense had in it the line, "life, liberty, and the pursuit of property," as well as the line, "the pursuit of happiness."

So here's the deal: Sometime along time ago when language began, someone said something. It was overheard and someone else liked it. They repeated it. After a few mellenia I repeated it in some from. I apologize that I can't remember her name so as to give her credit. I think it was Ilene. Nonetheless, I didn't mean not to give her credit. Don't get me wrong, if someone is guilty of copyright infringement or if they pass off an idea or analysis as their own without giving proper credit they should be held accountable. Politics, inherently, is nothing but a form of plagiarism. We take something that has hopefully worked in the past and, with a few minor changes, appropriate it and call it our own. The Mayflower and it's passengers mattered. The People watching them from behind the forest cover mattered. Words matter. I think I just plagiarized again. I'm sorry.

Just Being There

Don't ask where this idea comes from. Sometimes I'm of the impression that we are not the source of an idea. The idea exists in and of itself. We are just the receptacles of that thought. If we are open to it, it will arrive. If it arrives, it's up to us to listen to it.

There seems to be the thought that being first at something is the preferred method. It is entrenched in our psyches from birth, whether it's little league sports, being the head of the class or making the most money. It is the pursuit to get ahead at all cost no matter what. You can find it at home, at work, on the ski slopes and on CNN as you watch certain candidates and their spouses this season.

In this Machiavellian model, to progress to an end result at any cost, to achieve more knowledge, more power, more this, more that, we ultimately lose. We lose ourselves. Sometimes taking a breath and doing nothing is the best thing to do. Sometimes getting in your car and taking a scenic drive while listening to Rachmaninov, Shostakovich, Chopin, Miles, or Bill Evans is the best thing you can do. But the reality is, is that the people that get this already do this. And most likely the ones that don't are at this very moment thinking of ways to get on top. Their egos, or lack thereof, don't allow just being there--being in the moment. In my experience, there is no top.

My son is just 16 years old. The fact is, is that he will be a better musician than I am. He has a better temperament than I do. He is gifted with balance. Being first is not that important to him. He's more interested in clarity and understanding. For him happiness will come more easily as he is a better container for bliss. He plays in a band that occasionally asks me to play back-up percussion. I add "color" or so they say. I've learned I don't mind being second fiddle. It gives you the opportunity to look around and observe what's going on around you. It gives you more time to step back and contemplate what your part is and how you can best contribute to the whole.

You need that down time, you need to have a place to go and think. If all you are doing is trying to catch up and ultimately win--whatever that is-- you will most likely miss the point of what the universe is trying to whisper to you. If you want to see a person and what they stand for you have to understand what it is they are doing when no one is watching them. Hard to do, but for yourself.

Perhaps that's why there is a Camp David. Perhaps that's why Lincoln had a cottage that he would ride to about 3 miles North of Washington, D.C. As he rode to that Victorian cottage to find refuge, he would have undoubtedly seen the scores of Union troops encamped for a cause he believed deeply in, a cause to which thousands were dying and would continue to die. Quietly, and by himself, and away from the confusion of the White House he drew up the plans of how to unite a divided country, mourn the death of his son Willie, and dream up the Emancipation Proclamation. He understood the necessity of space and just being there.

Nationwide Recall of Beef being Fed to Our Children

The USDA has ordered the Nation's Largest Beef Recall. Based on what I'm reading and hearing don't be surprised if the Fed's don't bring additional criminal charges against the company Westland/Hallmark. If they don't, they're not doing there job. People should be outraged. Is it not outrageous that food not fit for human consumption is being fed to our children at school? What group of money focused idiots thought this would be a good idea and would go unnoticed? It also clearly calls into question what our government is doing about inspection. Obviously the inspection program at the USDA is soundly asleep at the wheel while our kids are eating beef from sick "downer" cattle. Yet another reason to write your member of congress and tell them to stop hearings that are a waste of time (see blog on Clemens below) and do something for our nations food supply.

Here's the story:

AP Greg Risling
Posted: 2008-02-17 22:31:57

LOS ANGELES (Feb. 17) - The U.S. Department of Agriculture on Sunday ordered the recall of 143 million pounds of frozen beef from a California slaughterhouse, the subject of an animal-abuse investigation, that provided meat to school lunch programs.

In what officials said was the largest beef recall in U.S. history, the Department of Agriculture on Sunday ordered the recall of 143 million pounds of frozen beef from a California slaughterhouse that provided meat to school lunch programs. The recall will affect beef products that came from the Westland/Hallmark Meat Co.
Officials said it was the largest beef recall in the United States, surpassing a 1999 ban of 35 million pounds of ready-to-eat meats. No illnesses have been linked to the newly recalled meat, and officials said the health threat was likely small.

The recall will affect beef products dating to Feb. 1, 2006, that came from Chino-based Westland/Hallmark Meat Co., the federal agency said.

Secretary of Agriculture Ed Schafer said his department has evidence that Westland did not routinely contact its veterinarian when cattle became non-ambulatory after passing inspection, violating health regulations.

"Because the cattle did not receive complete and proper inspection, Food Safety and Inspection Service has determined them to be unfit for human food and the company is conducting a recall," Schafer said in a statement.

A phone message left for Westland president Steve Mendell was not immediately returned.

Federal officials suspended operations at Westland/Hallmark after an undercover Humane Society video surfaced showing crippled and sick animals being shoved with forklifts.

Two former employees were charged Friday. Five felony counts of animal cruelty and three misdemeanors were filed against a pen manager. Three misdemeanor counts — illegal movement of a non-ambulatory animal — were filed against an employee who worked under that manager. Both were fired.

Authorities said the video showed workers kicking, shocking and otherwise abusing "downer" animals that were apparently too sick or injured to walk into the slaughterhouse. Some animals had water forced down their throats, San Bernardino County prosecutor Michael Ramos said.

No charges have been filed against Westland, but an investigation by federal authorities continues.

Officials estimate that about 37 million pounds of the recalled beef went to school programs, but they believe most of the meat probably has already been eaten.

"We don't know how much product is out there right now. We don't think there is a health hazard, but we do have to take this action," said Dr. Dick Raymond, USDA Undersecretary for Food Safety.

Most of the beef was sent to distribution centers in bulk packages. The USDA said it will work with distributors to determine how much meat remains.

Federal regulations call for keeping downed cattle out of the food supply because they may pose a higher risk of contamination from E. coli, salmonella or mad cow disease because they typically wallow in feces and their immune systems are often weak.

About 150 school districts around the nation have stopped using ground beef from Hallmark Meat Packing Co., which is associated with Westland. Two fast-food chains, Jack-In-the-Box and In-N-Out, said they would not use beef from Westland/Hallmark.

Jack in the Box, a San Diego-based company with restaurants in 18 states, told its meat suppliers not to use Hallmark until further notice, but it was unclear whether it had used any Hallmark meat. In-N-Out, an Irvine-based chain, also halted use of the Westland/Hallmark beef. Other chains such as McDonald's and Burger King said they do not buy beef from Westland.

Raymond countered a claim leveled by Humane Society President and CEO Wayne Pacelle, who said a USDA inspector was at the Westland plant for about two hours each day. USDA inspectors are there at slaughterhouses "continuously," Raymond said.

Federal lawmakers on Thursday had called for the Government Accountability Office to investigate the safety of meat in the National School Lunch Program.

Upon learning about the recall, some legislators criticized the USDA, saying the federal agency should conduct more thorough inspections to ensure tainted beef doesn't get to the public.

"Today marks the largest beef recall in U.S. history, and it involves the national school lunch program and other federal food and nutrition programs," said U.S. Sen. Tom Harkin, chairman of the Chairman of the Senate Committee on Agriculture, Nutrition and Forestry. "This begs the question: how much longer will we continue to test our luck with weak enforcement of federal food safety regulations?"

Advocacy groups also weighed in, noting the problems at Westland wouldn't have been revealed had it not been for animal right activists.

"On the one hand, I'm glad that the recall is taking place. On the other, it's somewhat disturbing, given that obviously much of this food has already been eaten," said Jean Halloran, director of food policy initiatives at Consumers Union. "It's really closing the barn door after the cows left."

Associated Press writer Jacob Adelman contributed to this report.

Sesame Seeds and Salmonella

The FDA just sent out the following press release regarding Nutri-Foods Organis Sesame Seeds due to possible salmonella contamination.

Recall -- Firm Press Release

FDA posts press releases and other notices of recalls and market withdrawals from the firms involved as a service to consumers, the media, and other interested parties. FDA does not endorse either the product or the company.
Nutri-Foods Recalls "Organic Sesame Seeds Natural - Unhulled" Because of Possible Health Risk

FOR IMMEDIATE RELEASE -- February 15, 2008 -- Nutri-Foods, Inc. ("Nutri-Foods") of Royal Oak, Michigan, is recalling its .50 pound packages of "Organic Sesame Seeds Natural - Unhulled" due to possible salmonella contamination, an organism, which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting, and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illness such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis.

The recalled "Organic Sesame Seeds Natural - Unhulled" were sold at Nutri-Foods.

The product comes in a .50 pound clear plastic package with a product SKU #170 at the top and a "packed on" date of December 28. This product was sold from circa December 15, 2007 through January 28, 2008.

No illnesses have been reported to date in connection with this problem.

Production of the product has been suspended while the FDA and manufacturer of the product continue their investigation.

Write Congress and Tell Them You Don't Care About Roger Clemens' Injections in His Backside!

How much did we as taxpayers pay today to watch Roger Clemens and his former physical therapist talk before a committee of Congress to discuss whether the PT injected him with steroids and human growth hormone? Based on my experience, it was well into the seven figures. Here's a thought: Why doesn't Congress focus on what "we the people" sent them to do? Enact legislation and pass bills that help the economy, build bridges, roads, dams, schools, healthcare, pollution, global warming, poverty, etc, etc, etc.

Here's something you can do: The FDA recently published a report on the need to partner with Congress to make the changes necessary to transform the safety of the nation's food supply. They call it the Food Safety Plan. The Plan recommends legislative changes to strengthen the FDA's ability to continue to protect Americans from foodborne illnesses. In part, the plan will:

Authorize FDA to Accredit Highly Qualified Third Parties for Voluntary Food Inspections.
Require New Reinspection Fee From Facilities That Fail to Meet current Good Manufacturing Practices (cGMPs)
Authorize FDA to Require Electronic Import Certificates for Shipments of Designated High-Risk Products
Require New Food and Animal Feed Export Certification Fee to Improve the Ability of U.S. Firms to Export Their Products
Provide Parity Between Domestic and Imported Foods if FDA Inspection Access is Delayed, Limited, or Denied
RESPOND Rapidly to Minimize Harm.
Empower FDA to Issue a Mandatory Recall of Food Products When Voluntary Recalls Are Not Effective
Give FDA Enhanced Access to Food Records During Emergencies

See the full Plan here: http://www.fda.gov/oc/initiatives/advance/food.html

Although this Plan is by no means perfect, it does put focus on a too common problem in the United States--food poisoning. The CDC estimates that 76 million foodborne illness, or food poisoning, cases occur in the United States every year, which means that one in four Americans contract a foodborne illness annually after eating foods contaminated with such pathogens as E. coli O157:H7, Salmonella, Hepatitis A, Campylobacter, Shigella, Norovirus, and Listeria. Approximately 325,000 people are hospitalized with a diagnosis of food poisoning, and 5,000 die. The estimated costs in terms of medical expenses and lost wages or productivity are between $6.5 and $34.9 billion (Buzby and Roberts, 1997; Mead, et al., 1999).

Now ask yourself, why do "we the people" care about Roger Clemens and his injections? Write your member of Congress and tell them how you feel about it and, why you're at it, tell them you want a few things to change or you will vote them out. Then they will have plenty of time for America's favorite past-time--just make sure the hot dog is cooked and hot when you get it.

Botulism in Asparagus, Beans and Blackeye Peas

A recent nationwide recall has been broadened by the U.S. Food and Drug Administration (FDA). Unfortunately, due to the sizes of the cans (institutionalized 6-7 pounders) much of what is being consumed might place consumers at greater risk. I suspect the majority of the cans are not being opened by consumers but more likely retail restaurants, and other larger institutions such as schools and hospitals. I hope they are paying attention.

The FDA is alerting consumers, food service operators, and food retailers that New Era Canning Company, New Era, Mich., is broadening its nationwide recall of canned vegetable products for a third time because of the potential for its foods to be contaminated with Clostridium botulinum (C. botulinum).

C. botulinum produces the toxin that causes botulism and can cause life-threatening illness or death. The affected New Era products are large institutional-sized cans, weighing between six and seven pounds, of various types of beans, blackeye peas, and asparagus.

To date, no illnesses have been reported to the FDA. However, consumers should not consume these products, even if they appear to be normal, because of the potential serious risk to health. Consumers who have the affected products, or who have used them in recipes, should immediately throw the cans and food away.

The potentially contaminated products are marketed under ten different brand names:

Classic Sysco
Code
Frosty Acres Restaurant’s Pride Preferred
GFS
Kitchen Essentials
Monarch Heritage
Necco
New Era
Nugget
Reliance Sysco

Processors other than New Era may be packing these brands. Only products packed by New Era are subject to the recall, so individuals must check the lot numbers on the bottom of the cans to determine if the product is affected by the recall. A complete list of specific brands, products, and lot codes subject to the New Era recalls can be found at http://www.fda.gov/oc/opacom/hottopics/newera.html.

Symptoms of botulism poisoning in humans can begin from six hours to two weeks after eating food that contains the toxin. Symptoms may include double vision, blurred vision, drooping eyelids, slurred speech, difficulty swallowing, and muscle weakness that moves progressively down the body, affecting the shoulders first, then descending to the upper arms, lower arms, thighs, and calves. Botulism poisoning also can cause paralysis of the breathing muscles, which can result in death unless assistance with breathing (mechanical ventilation) is provided. Individuals who have these symptoms and who may have recently eaten the products under recall or other food products made with them should seek immediate medical attention.

Any food that may contain the affected products should be disposed of carefully. Even tiny amounts of the C. botulinum toxin can cause serious illness when ingested, inhaled, or absorbed through the eye or a break in the skin. Skin contact should be avoided as much as possible, and hands should be washed immediately after handling the food.

When disposing of these products, double-bag the cans in plastic bags. Make sure the bags are tightly closed, then place in a trash receptacle for non-recyclable trash outside of the home. Restaurants and institutions should ensure that such products are only placed in locked receptacles that are not accessible to the public. Additional instructions for safe disposal may be found at www.cdc.gov/ncidod/dbmd/diseaseinfo/botulism_g.htm . Anyone with questions may call the FDA at 1-888-SAFEFOOD.

This recall is the most recent to result from an ongoing investigation of New Era Canning’s processing plant by the FDA and the Michigan Department of Agriculture. The FDA initiated an inspection of New Era Canning, along with inspections of other low acid canned food manufacturers, following four cases of botulism in consumers who had consumed canned, hot dog chili sauce in the summer of 2007.

Conflict Resolved

I spent most of the my day yesterday in mediation. It was confidential so I can't discuss any of the specifics, but it was successful in its outcome. What I can say is that it was a case that had been litigated up until mediation for over two years. Both sides had risk. Both sides had strengths and weaknesses. In the end, both sides had to give a bit more than what they really wanted to. But also in the end, both sides had more say and control than what they would have if it had been given to a jury.

There are certain things you can do both as a client and an attorney to prepare for medition that will help in having a successful outcome. These ideas are by no means complete but are some thoughts from what has worked for me and my clients.

First things first, know your case. This doesn't mean your side only, it means try to understand your case from the other side as well. Obviously, there is a dispute or you wouldn't be here. Try to objectively discern if the otherside might have a valid point. Also, not all facts are critical at mediation. You may have lived with your case for a few years but trying to explain the details of the front door to your cabin that is 47 miles down a rutted dirt road may not be salient to this process. It's like the details of a book versus the same story in a two hour movie. I once took a screenwriting class that went over how to adapt a book to a movie. The instructor said the following: "Read the book carefully from cover to cover then put it down. Write out what you remember from it--the main points. If you can't remember all the details they were most likely not that important." So know which facts are critical and which are merely background.

I think it's also affective to research any comparable jury verdicts in your area to some degree. I feel this was probably more important to see what value is in your particular area a few years ago. Area distinctions are becoming less dramatic than they were fifteen years ago. The internet has made the world smaller. Just because I live in Utah or Oregon should I take less that a similar case that is in California or New York? So research cases from your area and beyond. See what's out there.

What are your alternatives to settlement? Will this be your last bite of the apple before litigation? Can you try again if it doesn't wotk out? Could another form of settlement be suggested such as arbitration? Timing is every thing. Some case take a while to become ripe. The right answer at the wrong time is still the wrong answer. Don't short circiut the process of getting to quick to mediation and don't short circuit the process once you are at the mediation or you will most likely take less than you would have otherwise. It is a dance that has several components. Patience still can be a virtue.

Another helpful process to go through with your clients is to explain to them how long and how expensive it will be to go to trial and what outcome is possible at trial. If they could settle today for $500,000, is it better or worse than going to trial a year down the road and spending and additional $50,000 with the amount on the table today at risk to potenetially get another $500,000? The answer may be yes or no but you need to honestly make an assessment.

When preparing both you and your client, make sure your are on the same page in most critical respects. You don't want an additional dispute to errupt during this most critical time of potential settlement at mediation. If you feel it coming on, politely ask the mediator to step outside and work through it until you reach an understanding with your client. Remember to listen to your client as they are the ones that have lived thrugh it.

It is also important ahead of time to explain the mechanics of the system (especially how a mediation session goes) so they are not surprised. Explain to them that the mediator is not the judge but someone that can hopefully facilitate a resolution. They are not there to tell you what to do. You and your cleint get to decide that together.

Like I said, this is by no means an exhaustive list. It is just a list of thoughts I have from spending my day in mediation that can hopefully better help in getting conflict resolved.