May 2006 | e-Newsletter

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In this Issue

Enter Our Billable HoursTM Around the World Contest Advice to Law School Graduates Feature Article: Make Your Dreams Come True: A step-by-step planning guide Daily Legal Toon Humor: A Taxing Disclaimer Humor: Gullibul's Travails Congratulations to Our April Fools Drawing Winners Book of the Month: Transforming Practices: Finding Joy and Satisfaction in the Legal Life

Enter Our Billable HoursTM Around the World Contest

When we launched The Billable Hour^TM Company in November 2005, we knew we'd hit a nerve with lawyers in the United States, but we never expected to become an international sensation. Turns out, lawyers around the world are intimately familiar with the concept of the "billable hour," and get a kick out of our timepieces.

Although we're busy here in New York running the Billable Hour^TM Company, we think it would be fun to see our watches and clocks in their new homes. Take a picture or make a video of your timepiece, and include something unique to your location in the shot. For example, if you live in Florida, you could drape a Billable Hour^TM watch over a grapefruit. E-mail your photos or videos to us at info@TheBillableHour.com. We'll post them on our website, in the new interactive screen in the right-hand sidebar. Each month, we'll give one lucky Around the World participant (chosen at random) a copy of Sean Carter's book If It Does Not Fit, Must You Acquit? Your Humorous Guide to the Law.

Advice to Law School Graduates by Mark Solomon

About a year after graduating from law school, I was invited to dinner by one of my former professors. A discussion of my experiences as a student was inevitable, and we discovered a fundamental schism in our assessment of legal education. The professor’s approach was to treat law as a purely intellectual endeavor, and he held that law school’s purpose was to train our minds in the art of legal inquiry.

I countered that such an approach does a disservice to the student. As I discovered very quickly in my first year of practice, there is a difference between thinking like a lawyer, and representing clients. Clinical electives notwithstanding, an overly academic approach to the law does not prepare you to enter the practice. Imagine a student chef spending three years reading recipes and menus and never touching a roast or a grill. Picture an electrician his first day on the job installing a high voltage feed in an electrical closet, his only prior experience an illustration in a textbook. Law schools must recognize that they are not mere ivory towers, but also trade schools, obligated to teach their students the practical skills necessary to survive in the real world.

As with any art, in law there is simply no substitute for hands-on experience. Practical knowledge and mastery of techniques will come, eventually. You will learn from your successes, and even more from your mistakes. Over time you will learn the right tools to use for any given task, and you will develop increasingly creative solutions to legal problems.

To become a professional, it does not suffice to master the art of the law itself, but the business of law as well (setting up an office, client relations, bookkeeping, purchasing insurance, marketing, etc.). Immerse yourself in learning how to publicize and sell your services to your clients, because proficiency in the business of law will give you the greatest control over your career trajectory.

More than a few graduates, myself included, occasionally question the choices that led us to a career in the law. Anyone can have a bad day at the office, have to deal with unreasonable client or employer expectations, confront prodigiously rude adversaries, or contend with arbitrary and irrational judges and juries.

At those times, maintaining a sense of humor is essential. Remember that being a lawyer is only something you do, it is not who you are. Reflect on those cases that were particularly rewarding to you, how you held a jury rapt, how you constructed a novel and persuasive argument that was quoted extensively in the court’s decision, how you resolved a client’s confusion and concern. May you have an abundance of these good remembrances, and may you take much enjoyment and satisfaction in your career.

Feature Article: Make Your Dreams Come True: A step-by-step planning guide by Cheryl Stephens

Step One: Excavate Your True Desire

• Seek solitude in order to focus your attention on your dream and to make it specific.
• Keep your eyes open—you never know where inspiration will strike.
• Commit your dream to paper: another way of focusing your attention.
• Ask yourself some questions: examine your motives for wanting what you want. Maybe you really want something slightly different.
• Make a decision: don’t get stuck in evaluating your options; go with your gut.

Daily Legal Toon

Daily Toon Click to enlarge
Lawyer Cartoonsby Andertoons

Humor: A Taxing Disclaimer by Sean Carter

Recently, I received an e-mail from a tax lawyer who reads my weekly humor column. At the bottom of this e-mail, I found the following disclaimer:

IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication (or in any attachment).

Humor: Gullibul's Travails1 by James M. Rose2

Daniel D. Gullibul, (born of the cusp of Capricorn), who once suffered from the delusion that Elvis was impersonating him, called a 900 area code telephone number he saw on cable television for the purpose of obtaining a personal horoscope from Claire Voiant of The Psychic Boiler Room, a show on the Phrenology, Astrology, Tarot, and Spiritualism Information and Entertainment (PATSIE) Network.

He gave his birth time, date and place and was told, "Venus conjoins Uranus, and your stars are favorable for romance. Approach a person who has previously rejected you, and she will be more favorably inclined towards you romantically."

Gullibul followed this advice, although his boss had previously told him that his fellow worker, Priscilla "Prissy" Victoria, did not want him within fifty feet of her, and if he upset her again he would be fired. Armed with the knowledge from his astrologer that she would not reject him this time, he asked her to join him in his apartment for dinner and gave her a present of lingerie. Victoria was not amused.³ She had Gullibul fired, and filed a multi-million dollar sexual harassment suit against him and his employer for turning her workplace into a hostile sexual environment.

Gullibul call Voiant back, and she opined that he must have approached a Virgo who had rejected him, and her advice would only have been valid of he had approached a Moon Child.

He went to the local district attorney's office and angrily demanded that Claire Voiant be charged with the misdemeanor of fortune telling.⁴ In addition, he requested that the District Attorney seek a sentence that provided for restitution from Claire Voiant⁵ for the cost of his call, and indemnification for any damages Victoria may obtain from him in her sexual harassment suit.

Voiant hired the immense Wall Street law firm of Rock, Paper & Scissors, who attacked the misdemeanor information in human waves of young associates directed by a partner with a corner office—Charles Evans Huge (a Taurus).

Their first assault on the information involved freedom of religion. Claire Voiant said that it was her religious belief that she had the ability to predict the future based upon her interpretation of the stars. Since this was a good faith belief, the state could not interfere with it. The case came before part time Village Justice and health food store entrepreneur Millie Tonin Neuage (an Aquarius) who expressed skepticism. She noted that horoscopes in newspapers appeared not on the religion page, but most often with the cartoons. However, it was pointed out to the judge that she had often remarked that the local newspaper, which she referred to as the Distorter Repatch, seemed to get things that went on in her court backwards, and that she would not take notice that what appeared in it was accurate.

C. E. Huge directed the court to People v.Ballard⁶ (where a defendant was charged with five counts of fortune telling) in which the Appellate Division said "The defendant argues that the application of these criminal statutes to him infringes upon his constitutional right to freely practice his religion (US Const 1st, 14th Amends; NY Const, art I, §3). However, as we noted above, the jury properly rejected the view that the defendant's repeated promises to his victims to the effect that he could influence evil spirits were sincere, and instead found that the defendant's promises were deliberate lies, made with fraudulent intent."

The Ballard case stands for the proposition that the question of whether the defendant could influence evil spirits was a factual one for the jury to decide, and not a legal one! Sincerity in one's religious beliefs was therefore a defense.⁸

However, the court rejected that argument, indicating that Ms. Voiant was free to divine the future and draw horoscopes to her heart's content as long as she did not do it on a 900 telephone number requiring the caller to foot the bill. The First Amendment guarantees the right to practice a religion, but not to profit from it.⁹ The statute does not prevent fortune telling—it only prevents fortune telling for a fee.

Huge and associates then argued that the statute infringed upon freedom of speech. Horoscopes were a protected form of commercial speech. In New York City v. Learning Annex,¹⁰ New York City was prevented from banning commercial speech which involved distribution of flyers advertising courses in astrology.

This statute, they argued, simply could not prohibit the distribution of predictions of the future for a fee because a great deal of the economy of the United States involves people who earn their living doing just that. Does the fortune telling statute apply to any stockbroker or market newsletter that offers advice or predictions to the bulls and bears of the stock market? Does it apply to government or bank economists who read the harbingers of retail sales to predict interest rates and employment, to futures traders who buy and sell options on commodities, mortgage brokers who try to predict interest rates, or weather forecasters? Is fortune telling practiced by government agricultural agents who do crop forecasts, or the Farmer's Almanac, by odds makers, by epidemiologists, or doctors who advise special diets for illness, or the Harris Pollsters¹¹ when they do their job?

Did the judge herself violate the statute when she sentenced the previous defendant and said, "If you violate the terms of your probation I'll send you to jail?"

Justice Neuage held that the statute required more than just a statement about what might happen in the future: it required a detailed one with the pretense it would be the fate or fortune of the customer. The predecessor to this statute was interpreted in 1914 in People ex. rel. Priess v. Adams.¹² The judge in that case wrote: "I believe that there is a line of distinction between the person who pretends to be able to read the future and tell with positiveness what will or shall happen; and the one who merely reads a sign as indicating what ought to happen but is particular to make it plain that he is not attempting to predict future events."

Judge Neuage then noted the same distinction was made in People v. Malcolm.¹³ The defendant in that case was convicted because, rather than just attempting to give general advice as to the future, she predicted a particular marriage. In this case Voiant gave particularized advice that would bring her within the ambit of the language.

But Rock, Papers & Scissors was not finished. It noted the long history of astrology, dating back to 3000 B.C. in Babylon, Assyria and Egypt.¹⁴ Some scientific basis for astrology has always been asserted. In People ex. rel. Priess, the defendant argued that she studied the science of astrology. "In the reading of the horoscope the defendant went through an absolutely mechanical, mathematical process to get at her conclusions. She claims that astrology never makes a mistake and that if the figures are correct the information given is correct."¹⁵

The defendant's brief in that case argued that:

Astrology is the science which describes the influence of the heavenly bodies upon mundane affairs and upon human character and life. It is a mathematical or exact science as it is based upon astronomy which describes the heavenly bodies and explains their motions, etc. It is an applied science in that it takes the established principles of astronomy as its guide in delineating human character, and all its judgments are based upon mathematical calculations. It is an empirical science, because its deductions are based upon accurate data gathered for thousands of years. Astrology is the oldest science in existence. It is not only pre-historical but pre-traditional, and must not be classed with fortune-telling . . . . Astrology is the science of the effects of the Solar Currents on the living things on Earth including human life.

However, Justice Neuage pointed out that many current theories in physics sound like only crackpots¹⁶ would believe them. Quantum physics says that a particle can go from point A to point B without traveling across the space in between, that a positron is an electron traveling backwards in time, and that someone who traveled close to the speed of light would age slower than someone who did not. Non-scientists are skeptical of those theories, but that does not mean they are not correct.

The present statute adopts a concept from its predecessor, in that it contains the phrase "he claims or pretends to tell fortunes." The court held that elements of the offense of fortune telling that the District Attorney was required to prove beyond a reasonable doubt were that astrology did not have a scientific basis, and that Claire Voiant could not actually predict the future.

The case was adjourned for the parties to line up their experts.

¹ This column is not a prediction of the future. Do not try to predict the future yourself without the aid of a trained professional—although what else is there to predict?

² Mr. Rose is the author of "The Right to Counsel During Bar Examinations."

³ Victoria's secret was that she was scared to death Gullibul was a stalker.

⁴ N.Y. Penal Law §165.35 reads as follows:

Fortune telling:

A person is guilty of fortune telling when, for a fee or compensation which he directly or indirectly solicits or receives, he claims or pretends to tell fortunes, or holds himself out as being able, by claimed or pretended use of occult powers, to answer questions or give advice on personal matters or to exorcise, influence or affect evil spirits or curses; except that this section does not apply to a person who engages in the aforedescribed conduct as part of a show or exhibition solely for the purpose of entertainment or amusement.

⁶ 533 N.Y.S.2d 558 (2d Dep’t 1981).

⁷ Spirits such as ghosts were held to exist as a matter of law in Stambovsky v. Ackley, 572 N.Y.S.2d 672 (1st Dep’t 1991).

⁸ If the Legislature concluded that any assertion that a defendant could predict the future was illegal as a matter of law, it would not be a question for the jury.

⁹Which is why the Not-for-Profit Corporations Law applies to religious corporations. See Rector, Church Warden and Vestrymen of St. Bartholomew's Church in City of New York v. Committee to Preserve St. Bartholomew's Church, Inc., 445 N.Y.S.2d 975 (1st Dep’t 1982).

¹⁰ 571 N.Y.S.2d 380 (Sup. Ct. N.Y. Co. 1991).

¹¹ Who often start reports with "If the election were held today . . ." (but seldom follow that phrase with "no one would vote because everyone thinks it's going to be the second Tuesday in November.")

¹² 32 Crim. Rep. 326.

¹³ 154 N.Y.S.2d 919 (Ct. of Gen. Sessions 1915).

¹⁴ See Paulson-Howe, "Is Astrology Fortune-telling?" 64 American Astrology 27.

¹⁵ 32 N.Y. Cim. Reports at 339.

¹⁶ The scientific term for "crackpot" is "psychoceramic."

James M. Rose is an attorney and legal humorist in White Plains, New York. The Supreme Court Jester is a collection of Mr. Rose's articles in book form.

Congratulations to Our April Fools Drawing Winners

Everyone who purchased a Billable Hour^TM timepeice between February 15 and April 1 was automatically entered to win a copy of Sean Carter's bookIf It Does Not Fit, Must You Acquit? Your Humorous Guide to the Law. Our three luck winners of the April Fools Drawing are Cheryl Maze of Tallahassee, Florida; Jacquie Truemner of Edmonton, Alberta; and Thomas Boyce of Bath, England. We're sure Cheryl, Jacquie and Thomas will enjoy reading Sean's book as much as we did!

For your chance to win a copy of Sean's book, enter our Billable Hours^TM Around the World contest.

Book of the Month: Transforming Practices: Finding Joy and Satisfaction in the Legal Life

The publisher writes: Spirituality and law practice may sound like an oxymoron, but a quiet quest to find deeper meaning in life and work as a lawyer and to cure the ailments of today's cutthroat law firm environment is well underfoot within the legal community. Transforming Practices: Finding Joy and Satisfaction in the Legal Life is the first book to explore this movement toward bringing one's soul to the practice of law and returning to lawyering from a healing perspective, rather than an adversarial one. Filled with inspiring profiles of lawyers who have successfully changed their work habits and attitudes and who have healed the split between inner and outer, "us" and "them," and individual and community, Transforming Practices makes it clear that the opportunity for transformation exists for every lawyer, in every kind of law practice. Through the use of narrative, interviews and anecdotes that draw upon the experiences of lawyers from a broad spectrum of practice areas, the book demonstrates that it is okay for a lawyer to be human, to care, to let the values and priorities that matter at home also matter at work. Interestingly, Steven Keeva is not a lawyer himself. Rather, as a senior editor for the ABA Journal, the most widely read legal publication in the world, he has written about lawyers and the legal profession for nearly a decade.

This book has an average customer rating of 4.5 out of 5 stars on Amazon.com.

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