Category: HealthLaw Blog

“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

If you ever feel you can’t summon the strength to climb that next hill, it might help you to think, “if fellow lawyer, Dr. Stan Churchwell can do it,” you can too.

I had known Charles Stanley “Stan” Churchwell, JD, DPM for some time, as a referring transactional lawyer. I knew he had dual legal and podiatric medical doctorates and served as the past president of both the Texas Podiatric Medical Association and the Dallas County Podiatric Medical Society. And I knew he has a thriving legal practice, usually representing other doctors throughout the state in transactional matters. But that’s all I knew.

We decided to meet over lunch at the Capital Grille to discuss a non-compete litigation case he had referred to me. He walked in, sat down and I soon noticed he was making adjustments under the table. He looked up, as if he had just dropped a napkin, and said, “Sorry, I can’t tell where my feet are.” He then explained and later gave me permission to write about it here.

Stan began his career as a podiatric surgeon in 1984, after graduating from Jesuit High in Dallas and earning a BS in Engineering from Tulane.

Then, one night just before Thanksgiving in 1986, Stan was struck from behind by a young drunk driver on I-10 in San Antonio. He awoke in the hospital with fractures to the C-5, C-6 and C-7 and damage to the spinal cord, which rendered him a quadriplegic in what is called a “miracle” spinal contusion. While in the hospital, Stan suffered deep vein thrombosis and a pulmonary aneurysm.

Understand, any one of these might have killed a normal person. But not Stan. Instead, he picked himself up, clawed himself back and after years of grueling rehab, was able to walk and function well enough to become board certified in foot surgery in 1991. But he wasn’t done yet.

Stan then decided to go to law school to add a JD to his engineering degree and DPM. He was licensed to practice law in Texas in 1993. Then, this Energizer Bunny force of nature just kept going and going. He earned an LLM in Estate Planning in 2013, another LLM in Technology and Intellectual Property Law, from the University of Liverpool, 2016.

He has served on the Texas State Board of Podiatric Medical Examiners, Governor Appointment 1996-2002 and seems to have been elected or appointed to a leadership role of every organization he has ever joined.

If you read his c.v., however, you will find no mention of the accident or of the super-human struggles he overcame. In fact, he doesn’t even have a website. Never needed one to keep busy. I now understand why.

“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

People love a shot at redemption. But now there is a literal “shot of redemption.” A miracle in a vial, which will not only redeem your past sins, but also wash clean those you plan to commit on the next fun night out. You can eat anything you like, drink what you like and not pay for it. All in one convenient FDA approved dose. It’s basically like “Jesus in a syringe.” What could possibly go wrong?

If you have ever read the Book of Revelation, you know “all hell follows with” the second coming (we just don’t know what that means). Same with this miracle. God usually doesn’t give with “both hands.” So, maybe slow your roll on this, or at least keep one foot on the ground, things might get a little bumpy when we find out the side-effects.

What is Ozempic? Semaglutide, the ingredient in Ozempic, is a miracle diabetes/weight loss drug which has become so scarce, that the FDA invented rules which throw the patent out the window (a patent creates a monopoly for the company that holds the patent). If a drug is scarce, compounding pharmacies can legally make copies of the drug, to fill the gap. But we still don’t have enough of the stuff.

It has gotten so bad and people so desperate that I am now getting health law cases where nursing and pharmacy staff are alleged to have pilfered patients’ supplies of the drug. Which is a great big “no, no” on so many levels.

Why Diabetes is relative: E=MC2. So how do we get diabetes? In a nutshell, Type II Diabetes comes from eating too many carbohydrates, which come from plants (which are delicious), especially when highly processed. Einstein’s equation works because “energy and mass” are the same thing. (Please don’t ask me about the square of the speed of light part, I have never known, and the equation works just fine without it.) Mass is a store of energy. Neither can be created, nor destroyed. (Also, please don’t ask me where this matter came from in the first place, whatever works for you, works for me.) Just know, at present, energy and mass appear to change forms from time to time, but never disappear. How does this make diabetes?

First, the sun blows up and shoots energy at us through space (energy is mass in a different form). Then plants soak up this energy and through photosynthesis, mix it with carbon dioxide taken from the atmosphere (emphasis on “carbon”), and good old liquid H2O or water (emphasis on “hydrogen”), and “poof” you have “carbo. . .hydrates.” Plant-stored energy. Which is how an acorn becomes an oak tree. It’s really pretty simple. If all these plants die and rot in the ground for millions of years, you get “hydro-carbons,” a different form of “stored plant energy” which makes jets go fast.

Little humans grow into big humans, by consuming plant energy after the sun blew up. Some of which comes from directly from plants as carbohydrates, and some from animals, which is just getting your energy the long way round (the animals ate the plants first, then we ate the . . . well, best not to think too much on this.)

Some of these carbohydrates are delicious, right off the plant. Like maple syrup and fruit. Others, must be processed and cooked to be digested. That’s why we can’t get energy from eating grass, but can mill corn and wheat into flour, which becomes spaghetti or cornbread. The smashing and heating frees up the carbohydrate plant energy stored in seeds. Before we can use this energy, these plant carbohydrates must be turned into a type of sugar in our digestive tracts and enter the blood, hence “blood sugar.”

But humans need insulin, produced in the pancreas, to allow blood sugar to pass out of the blood and into the body for fuel. Insulin also tells our bodies to store the extra carbohydrates in the liver and body for later. Which is why if you eat or drink too much, you get a fatty liver and massive waist line. While too much stored energy as fat is bad for your health, at least the sugar is out of your blood.

Sugar left in the blood is highly inflammatory, and corrosive to nerves and blood vessels. Kidneys will try to pull out as much as they can, but it is a losing battle. That’s why diabetics can lose circulation in their feet and limbs and kidneys will fail. Sugar in the blood has literally eaten away the ability to circulate oxygen and worn out other organs.

While Type I diabetics are born with no ability to produce insulin, Type II diabetics get this way by over-eating carbs. There is a nasty connection between dopamine and things that taste good. If you constantly bombard your body with carbs, eventually the pancreas can’t produce enough insulin to keep up. In some cases, the pancreas just burns out or gives up altogether.

Once this happens, diabetes can be treated in two ways. Plan A: behave yourself. Stop eating carbs and exercise daily, to burn the carbs you do eat, then you won’t have high levels of sugar left in your blood. Doctors will tell you, any plan that counts on us to behave ourselves, had better have a backup plan. So, Plan B: Take drugs like insulin, which has known side effects and now, this new miracle drug, that no one knows if there will be long-term side effects from taking.

That’s what we know so far.

“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

Chris Williamson’s podcast gave me a new rule of thumb: “Don’t imagine someone is acting with ‘malicious intent’ over ‘simple stupidity.’” I am going to attempt to describe the “mailbox money trap,” which can cost doctors their careers, under the assumption that people don’t realize what they are getting themselves into.

Suppose some businessperson, often a competing ancillary provider, shows up at a doctors office and pitches a physician on a new way to make money, in which all the physician really has to do is lend his NPI number to a plan, then go to the mailbox and retrieve the check each month.

There are two main ways these things can turn out badly: (1) pass-through billing, and (2) suspect joint ventures. Precisely how much trouble a doctor can get into often depends upon what type of insurance is billed.

Commercial Payers vs. Government Payers. All health plans use a claims payment manual (both federal and commercial health insurance tend to use CMS Medicare rules). The difference being— the people who show up in a doctor’s lobby to talk about governmental displeasure with a provider’s behavior, frequently have “badges and guns.”

While commercial health insurance plans don’t have law enforcement powers, they do have impressive titles such as “special fraud investigation unit” and have two things going for them. Like “mall cops,” special fraud units are able to “observe and report” suspicious activity to medical boards and law enforcement. They can also get doctors kicked out of their PPO insurance contracts for not playing nice in the money-making sandbox.

“Pass Through” Billing Schemes. As a general rule, each provider must bill only for services the provider actually rendered. If you happen to be a doctor’s office, for example, you can usually bill for any work done by yourself, your partners, and employees, including any in office ancillary services, lab tests, drugs and x-rays, imaging and other items—provided that your group owns all the equipment and the people doing the work are bona fide employees. Your group can also have as many offices as you need.

But what if an independent contractor sonographer offers to wheel in sonogram equipment to a doctor’s office, run the machine, the doctor bills under his NPI (billing number) and the two split the payment 50/50 when insurance pays?

On March 8, 2019, Harris Brooks CEO of Palo Pinto General Hospital in Texas pleaded guilty to multi-million-dollar healthcare fraud due to pass through billing involving labs. (The hospital didn’t have a lab, but billed as if it did.) According to his plea agreement, Mr. Brooks will face up to five years in prison and will be required to pay restitution to those he defrauded.

The logic for the rule lies in the idea that the payment from insurance anticipates the clinic is at risk of loss due to overhead, the cost associated with buying the equipment, employee benefits, and of course, the group must pay the W-2 technician, even when there is no work to do. Not so with a 1099. The clinic only pays money when work is needed, and escapes the overhead.

Suspect Joint Ventures. Suspect joint ventures are best conceptualized as pass through billing “writ large.” Instead of rolling a simple sonogram machine into a doctor’s office, the suspect joint venturer will offer to finance a second clinic, specializing in one kind of ancillary service, which will be fed by the doctor’s existing patients. As before, the doctor doesn’t pay for anything, nor do anything. He just sends patients to the new venture. Usually, the doctor pays a management fee, but only for the new venture clinic, not his existing one.

The OIG has been warning physicians since 1989 that certain of these “suspect joint ventures” could violate the Anti-kickback statute, even if structured lawfully under Stark law’s ancillary services exception.

According to the 2003 OIG Special Advisory Bulletin[ I added the numbers to make it easier to read]:

“[Q]uestionable contractual arrangements where (1) a health care provider in one line of business (hereafter referred to as the “Owner”) (2) expands into a related health care business (3) by contracting with an existing provider of a related item or service (hereafter referred to as the “Manager/Supplier”) (4) to provide the new item or service to the Owner’s existing patient population, including federal health care program patients. (5) the Manager/Supplier not only manages the new line of business, but may also supply it with inventory, employees, space, billing, and other services.

In other words, the Owner contracts out substantially the entire operation of the related line of business to the Manager/Supplier – otherwise a potential competitor – receiving in return the profits of the business as remuneration for its federal program referrals.

The “kickback” lies in the fact that the physician really doesn’t have to do anything except send patients and collect “mailbox money.” This “money without risk,” or financial investment by the physician is the “kickback.” The reason the “manager/supplier” is in this arrangement, is because it doesn’t have any patients of its own.

“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

When I was a kid growing up in a Mississippi river town, we were scared of absolutely nothing. Long before the invention of “personal watercraft,” we would go behind the Yamaha Motorcycle dealer and grab Styrofoam packing crates, about the size of a closet door and use them for river rafts.

Our summers were spent fearlessly rafting with venomous snakes, fast currents, and other hidden dangers. It was just fun for us. Although, come to think of it, there were probably some pretty angry sea turtles in and around Mobile Bay, who might have tried to procreate with those abandoned motorcycle crates after they washed up on shore.

“Never let ‘em see you sweat.” I am not a kid anymore and like most professionals, I do have stress. (Instead of looking in the mirror for signs of aging, I now look for any signs of youth.) I also subscribe to the notion, “never let ‘em see you sweat.” Great, that’s one more thing to worry about just before trial.

But, I have always heard that deep breathing is a good way to combat stress, but never really tried it. Probably, because no one ever explained “why.” I am the kind of person who needs to know “why” something works, before accepting it. My teacher wasn’t amused in 9th grade algebra: “Given x, find y.” I didn’t understand why I would want to find y? Maybe y doesn’t want to be found? (It was the only D I ever got.)

But I did know, from swimming in rivers, that if you breathe in at the wrong time and take in water, you can be in big trouble quickly. That’s how good swimmers drown in lakes. Panic sets in when you can’t breathe normally.

Turns out, that’s also why deep breathing works with stress on dry land. I learned this from watching self-help videos on YouTube this month, and verified it from a study on the NIH PubMed website.

The answer is “carbon dioxide.” We breathe in oxygen and breathe out carbon dioxide. When too much carbon dioxide builds up in our system, we start to panic, hard.

The National Institute of Health tested this:

“We randomly selected six panic disorder subjects, using the Structured Clinical Interview for DSM-IV. All subjects went double-blindly through an inhalation of 35% CO2 and compressed gas (atmospheric air) on two occasions. At the first test five patients (83.3%) had a severe panic attack with high levels of subjective anxiety during carbon dioxide inhalation.”

This makes sense to me. Shallow breathing from stress, increases carbon dioxide in our blood, which sends a message to our brains, “this is the perfect time to panic.” And we do. Deep breathing gets rid of anxiety, by increasing oxygen and lowering carbon dioxide.

Now that you know why it works, maybe like me, you will be more likely to embrace deep breathing the next time you appear in court or present to a large audience.

“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

It’s another week and again my phone blew up, because another round of doctors and Pharmacy executives have been indicted under the Travel Act, (which is code for a “commercial only,” non-federal payer kickback case, like Forest Park.)

This iteration is US v. Mortazavi, in 3:24 -CR-049-S filed in the Northern District of Texas Dallas Division, involving something that happened just a squeak under 6 years ago which I believe is code for “an AUSA was looking for something to do,” and decided to see which cases had a statute of limitations coming up. It’s a “fish or cut bait” issue.

At any rate, the grand jury indicted the defendants for violations of the Travel Act 18 USC §1953, Commercial Bribery, Tex. Penal Code §32.43, Money Laundering, 18 USC §1956 and “Conspiracy to Deprive Patients of the Intangible Right to Honest Services,” 18 USC §1346 (which is a federal “bribery of a fiduciary” statute ).

All of this is related to Andrew Hillman’s Next Health, which was an amalgamation of MSO’s, CLIA Labs, pharmacies, surgical implant and device distributors, and only God knows what else (well, the government knows). Next Health has spun off more civil and criminal litigation than I have fingers and toes to count them with.

Tex. Patient Anti-Solicitation Statute. But what I really want to talk about is the Patient Solicitation Statute. Once again, an indictment mentions, but does not actually charge anybody with violations of the Texas Patient Anti-Solicitation Statute, Tex. Occ. Code 102.001. (The indictment opens with an observation that the Tex. Patient Anti-solicitation statute exists, but then makes no more mention of it in remainder of the entire indictment.)

Which if you ask me, is a clear violation of the narrative principle of “Chekhov’s Gun” (if you show a gun on the wall in Act I of a play, you are supposed to shoot somebody with it the end of Act III.) But nobody asked me.

Why no one is ever charged with 102.001. I have a three-part theory why no one ever is charged with Patient Solicitation under Occ, Code 102.001: (1) it stupidly written (it doesn’t outlaw anything it is supposed to outlaw (2) is probably unconstitutional as a violation of “commercial free speech” problems under the Central Hudson test and (3) it is only a Class C misdemeanor, so the “juice” isn’t worth the prosecutorial “squeeze.”

On the first point, take a look at Sec. 102.003. “Federal Law; Construction.” “Section 102.001 permits any payment, business arrangement, or payment practice permitted by 42 U.S.C. Section 1320a-7b(b) [the AKS] or any regulation adopted under that law.”

Trouble is, every kickback arrangement that does not involve federal payers, is permitted under 42 U.S.C. Section 1320a-7b(b), which only forbids kickbacks in government payer cases. Therefore, kickbacks of every other kind are permitted by 102.001 by the express wording of the statute. There is a reason 102.001 is written this way, it is supposed to recognize the supremacy of federal safe harbors over state law to the contrary. The legislature just butchered the drafting and execution.

Commercial Free Speech. Under 102.001, “(a) A person commits an offense if the person knowingly offers to pay or agrees to accept, directly or indirectly, overtly or covertly, any remuneration in cash or in kind to or from another for securing or soliciting a patient or patronage for or from a person licensed, certified, or registered by a state healthcare regulatory agency.”

The problem here is that unlike, say “soliciting prostitution,” providing pharmacy services is a lawful act. The statute completely bans paying someone to say truthful, non-misleading, commercial speech about a lawful activity, that is not restricted as to time or place. (There is a reason lawyer barratry statutes are specific as to when and how a lawyer can contact a car wreck victim.) These laws must be narrowly tailored to pass “strict scrutiny.”

That is the very definition of a Central Hudson free speech violation found in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), where Justice Blackmun wrote for the majority explaining that states still retained the power to regulate some commercial speech, via content-neutral time, place, and manner regulations. Likewise, states retain the power to prohibit false or deceptive advertisements. However, he held that the states could not suppress truthful information about a lawful economic activity, simply out of fear of potential consequences (people might use too many services paid for by commercial insurance, for example.)

“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

“Help! The FBI is in my lobby!” The call usually begins, but even that is an understatement. When I get there, the client’s lobby looks more like an explosion at an alphabet soup factory. There will be swarms of blue and gold law enforcement jackets emblazoned with “FBI,” “DEA,” the “HHS OIG,” and the “DOD OIG.”

A March 2024 D Magazine article describes these scenes as “a hawk descending on a field mouse.” I can vouch that this is the one time the government doesn’t seem to skimp on the expense of throwing a party.

Most lawyers hope to go their entire careers without their clients ever meeting an FBI agent in person. I would like to help keep it that way. I can start by pointing out that some of the blue blazers often read “IRS.” Even stolen or ill-gotten money is considered “income” for tax purposes. Tax evasion is usually less difficult to prove than underlying crimes. That is after all, how Al Capone ended up in Alcatraz.

But the IRS codes have even nastier cousins down the hall at the Treasury Department, beginning with 18 USC § 1956 “Money Laundering” and the long list of ancillary crimes, like conspiracy and aiding and abetting.

In healthcare crimes, I often see cases where a search warrant results in agents finding a safe with hundreds of thousands of dollars in cash in it (that no one can explain). The “no apparent legitimate business purpose” is one of the tests for tax evasion and money laundering.

Usually, where a lot of money is in a healthcare client’s safe, it is difficult for clients to deny they were “in on” some kind of “white envelope” shenanigans, such as payments are being made under the table to hide illegal kickbacks.

In other client’s cases, it is not so apparent to the recipient that the money is from an illegal source. Other than the obvious fact that there is an awful lot of it. Either way, it’s a fun day for federal agents, when they open a client’s safe and find hundreds of thousands of dollars in cash.

What is “money laundering?” The problem for criminals, which I suppose may of us learned from the television show Breaking Bad, is that it is really hard for them to spend or accumulate cash that hasn’t been reported as legitimate income. They often need to recruit witting and unwitting helpers to launder it.

In layman’s terms, money laundering is taking the proceeds from ill-gotten gains, and making it look like it came from legitimate sources. This often includes a scheme to pay taxes on cash “earned” by a seemingly legitimate business, to cover the money’s illegal origins.

“Smurfing” and other Ancillary Crimes. A really good overview of what money laundering is, and how clients can unwittingly become involved, can be found in the U.S. Department of Treasury FinCen website, entitled “Money Laundering Prevention.” (Just Google it, it will pop right up.) According to the FinCen website money laundering can be a complex process. It involves three different, and sometimes overlapping, stages:

Placement involves physically placing illegally obtained money into the financial system or the retail economy. This can involve “Smurfing” also known as “structuring,” whereby illegal funds are divided into smaller amounts by multiple people (like little “Smurfs”) who deposit smaller amounts into multiple bank accounts or financial institutions. This is done to circumvent financial regulations that require banks to report large transactions.

Layering involves separating the illegally obtained money from its criminal source by layering it through a series of financial transactions, which makes it difficult to trace the money back to its original source.

Integration involves moving the proceeds into a seemingly legitimate form. Integration may include the purchase of automobiles, businesses, real estate, etc.

The “accidental criminal,” meaning the unwitting client who might not know he is doing something wrong, can sometimes end up being charged with “conspiracy” or “aiding and abetting” when he simply thought he was helping out some acquaintance.

Any time large sums of unexplained cash are involved, it is always a good idea to advise clients to tread carefully if not, “run the other way.” Otherwise, they could end up covered in alphabet soup.

This is a topic that has been on my mind for a while, because I see it so much in my health law practice. Sometimes I put partnerships together, and sometimes, they get business “divorced.” And a big reason is today’s topic.

According to Medical News Today, “Emotional Blackmail” can be defined as “using another party’s fear, guilt, or sense of obligation to pressure them to comply with a demand.” Essentially, someone, whether a business partner, a boss, an employee, co-employee, a parent, children, good friends (or maybe someone you just met) expects you to do something you don’t want to do, and there will be consequences (to you or them) if you don’t comply.

Emotional blackmail is a natural phenomenon which requires two people. Much like lighting, which happens because of friction when the wind blows and two clouds rub together. You get people together, there will be friction, there will be flashes, some of it will be emotional blackmail. My point being, you can’t eliminate nature, in fact, you’d have better luck talking to the clouds. But you might just be able to help yourself get out of harms way.

Psychological “splitting.” Psychological “splitting” starts when we are infants. Little versions of humans can’t tell whether our wants and needs are life-threatening. So, just to be safe, infants will go “all out” with temper tantrums.

Psychologists also believe that for a long time, infants can’t tell that the “withholding” parent and the “giving” parent are actually the same person. Hence the “splitting.” The tantrum is designed to make the withholding parent go away, and cause the gratifying parent to come back. You can see where I am going here. You are a saint if you give them what they want, and the devil if you don’t. Emotional blackmailers are often infants that never grew up.

Do you have a “dog problem” or an “owner problem. Some “monsters” are born, and some are created. You first have to figure out if you caused the problem, by giving the emotional blackmailer permission to feel entitled to your help.

In other words, if we had followed you around with a court reporter and a videographer, would we find a point where you gave the emotional blackmailer the idea that they could rely on you to give them money, services, support that you now don’t want to give? If so, you don’t have a dog problem, you have an owner problem.

“Oedipal parenting” behavior. There is a range of possibilities why this would happen, some good and some pathological. On one end of the spectrum, “you are just nice” and therefore a doormat (also pronounced, “target.”) At the extreme other end, you might be a covert narcissist who loves volunteering, then sucking all the air out of the room complaining about being a victim to anyone who will listen.

Somewhere in between is “Oedipal parenting” behavior, where we might tend to infantilize our friends, children or coworkers, to keep them close. Often because we have nothing going on in our own lives. So, we make others weak and dependent on us. Like giving a drunk a drink. It isn’t good for them. But maybe we keep giving, to keep them close and needy. Either way, you’ve got work to do.

What if the problem is you? If you started it, then you can end it, if you want to. Dave Ramsey, the financial guru puts it this way when speaking of cutting off financial resources, “better to feel guilty, than resentful.” But it might take a while to turn the ship around. There might be some anger involved. You might lose friends when you say, “hey, I don’t want to do this anymore.” That’s what infantilizing your relationships will do– turn others into babies. Maybe you can’t go cold turkey, but you can set a deadline for when your help ends. Which takes a lot of courage and resolve, especially if the problem is you.

At the end of the day, only you can decide if you want to continue to allow others’ expectations to become your obligations.

What if the problem is them? Some people are just unfixable. The DSM-5 (a/k/a “The Big Book of Crazy”) classifies some of these people as “Cluster B” (sociopathic, narcissistic, borderline disordered.) I would just call them “parasites,” who don’t care that you don’t want to help them. They feel entitled to your time, money and services. The way to tell, is that they do it to everyone (not just you.) If you have one of those, “run.” You can’t fix them.

What if the problem is both of you? But you don’t have to be a clinical narcissist, nor a co-dependent, to get locked into this type of behavior. There is a book by Ross Rosenberg called The Human Magnet Syndrome, which explains that some people are simply co-dependent “fixers” who are drawn magnetically to narcissistic “takers.” You put a co-dependent and a narcissist in a crowed room, they will find each other. Narcissists just know who you are and vice versa. The same thing seems true for sub-clinical “takers” and “givers.”

The only thing you can do is work on yourself. That is what The Human Magnet Syndrome is all about. How to realize you are worthy of relationships, without giving away unreasonable amounts of resources to others by setting boundaries and enforcing them.

“Please Tell Me you Didn’t. . . How to Keep Client’s Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog

Last week, I found myself in day “one” of a trial, defending a sort of healthcare civil fraud case in small town just north of “Nowhere, Texas.” At the first break, my client was absolutely freaking out. “I can’t believe they are saying such bad things about me! All lies! This is awful! We are going to lose!”

I looked at him calmly and replied, “Yes, it’s war.” I assured him, “they are shooting at us and they are trying to win.” I then leaned in and whispered, “you can either panic, sorta like you are doing now, or suck it up and help me shoot down the next thing they send over the ridge. That’s how we deal with it.”

I would like to say this advice helped. (It didn’t.) But it did occur to me, that I have tried maybe 600 healthcare cases, and I forget that I am used to it. Not everyone is. Maybe I can help other lawyers who are in a similar situation, and are experiencing fear of a courtroom.

Competence vs. Smoothness, or “the zone.” “Competence,” in my way of thinking, refers to the technical ability to get through a hearing or trial. I and do mean, “get through it.” If you are brand new to courtroom work, the rules of civil procedure and evidence are like learning a foreign language.

I remember the first time I asked an Italian person, “Come ti chiami?” And she told me her name. I couldn’t believe it actually worked, since I don’t speak Italian, at least, not until then.

Same with rules of court. There are five steps, for example, when using a writing to refresh recollection, then, getting the writing admitted, when the witness still can’t remember. It’s just a rule, and it does work. Some of the fear of a courtroom, I think, is simply the kind of fear that comes from not believing any of this is actually going to work– that the judge might give you what you want. (They will).

“Smoothness,” or getting in “the zone” on the other hand, is “competence,” plus, being “chilled out” enough to think clearly, free of fear of your own incompetence. Athletes call this being “in the zone.” This is the point where you can reflexively handle anything that gets thrown at you. You aren’t thinking about screwing it up, you are thinking, “I’ve got this.” It is a wonderful place to be.

Exposure therapy.

Here is the thing I think most lawyers don’t realize about “smoothness” or “the zone” in court. It usually doesn’t arrive until day two of a trial. Day one, is more for “ancillary” issues, such as “are we going to settle,” or “is the trial really going to take place at all?” And my all-time favorite, “have I left my trial notebook back at the hotel?”

It usually isn’t until “day two,” that you get “locked in,” that fear melts away and you get in “the zone.” This a problem if all you ever do is 30-minute hearings, or maybe single-day temporary injunctions cases. You might come to believe that “smoothness” or “the zone,” isn’t part of your abilities. When it just might be that you have not had a chance for “smoothness” or “the zone” to arrive for you. You aren’t getting the benefit of “exposure therapy,” because all you ever get is the “day one” jitters, when there simply isn’t a “day two” in a one-day hearing.

“Scary,” “really scary” and “not scary at all.” I used to have the same problem with email which might help you with day-one trial jitters. Every day, there are 50 to 100 emails in my inbox. And I used to dread them. Then, while watching the Stephen King movie “It,” there was a scene where the ghost had three doors, marked “scary,” “really scary” and “not scary at all.” Which was a joke for “comic relief.”

So, one day, I took a yellow notepad, and made three columns for my emails, marked “scary,” “really scary” and “not scary at all.” As I went through my emails for one week, I made a mark in each column to keep up with each type of email (the kind of mark where you make four vertical lines and one diagonal to make “five.” Then you count up the groups of five to see how many you’ve got in total.)

And you know what, at the end of the week, there weren’t any “really scary” and practically no “scary” emails at all. Almost all of them were marked, “not scary at all.” You could do the same thing with “competence.” Make a chart of things that scare you, and keep track of whether or not you could or could not, “handle it with ease,” “handle with difficulty,” or “it was a complete disaster.” My point being, maybe, it isn’t just “exposure” to something, (I was clearly “exposed” to my email inbox) but instead, the trick is in realizing, that your fear is completely unfounded.

Good name in man and woman . . .is the immediate jewel of their souls. Who steals my purse
steals trash . ..’twas mine, now ‘tis his, but he that steals my good name, robs me of that which
enriches him not, and makes me poor indeed. –OTHELLO ACT 3, SCENE 3, 155–161

“Good name in man and woman . . .is the immediate jewel of their souls. Who steals my purse steals trash . ..’twas mine, now ‘tis his, but he that steals my good name, robs me of that which enriches him not, and makes me poor indeed.” –OTHELLO ACT 3, SCENE 3, 155–161

I sure miss high school English class, which harkens me back to a day when entertainment had more . . .“class.”

Dominion Voting Systems v. Fox News. Late night talk shows exploded this week, over The Tucker Carlson Show’s depiction of the January 6th incursion into the Capitol. If you haven’t seen it, the show broadcast a highly-edited version of video taken inside the Capitol on January 6th , with Carlson’s narrative claiming the incursion was nothing more than a peaceful “tourism” trip. The question being raised by liberal hosts, like Stephen Colbert, is simply, “has Tucker Carlson gone insane?”

Short Answer: “I don’t think so.” I stay away politics, left or right, other than to register the opinion, “some sins carry their own penance.” But I am fascinated by the practice of law, and in particular, defamation cases, with their odd twists and turns. That said, let’s unpack this thing.

“Crazy like a Fox.” In order to make sense of what’s going on, first consider, Fox News is being sued for $1.6 billion by voting machine vendor, Dominion Voting Systems, which argues that Fox repeatedly aired allegations that the company helped rig the general election against former President Trump, despite many at the news organization privately believing the claims were false. Emails uncovered in the case seem to bear this out.

Fox Chairman, Rupert Murdoch, was among several at Fox to say privately they didn’t believe the claims made by Trump and his allies, that widespread fraud cost him reelection. In his deposition, Murdoch said he could have prevented guests who were spouting conspiracies from going on the air, but didn’t.

AP reporter, David Bauder described it this way in a March 6 article, “Eye-catching evidence has emerged from court filings in recent weeks revealing a split screen between what Fox was portraying to its viewers about the false claims of election fraud and what hosts and executives were saying about them behind the scenes. “Sydney Powell is lying,” Fox News host Tucker Carlson said in a text to a producer, referencing one of the attorneys pushing the claims for Trump.”

The fact that Fox News executives don’t believe their own stories would be, oddly enough, the most comforting thing I have heard in a long time. It would indicate that the folks at Fox News actually have good sense (maybe even don’t like our former President), but were playing along for higher ratings, because “money.” They aren’t really crazy. Fox’s stock price is directly related to their audience size.

It appears that while “Truth,” is an absolute defense to defamation, Fox executives’ text messages and emails make this claim a bit “dodgy.” Instead, Fox appears to be relying on the back up defense, “what we say is so absurd, no reasonable person would believe us.” Which might explain Carlson’s increasingly “silly” broadcasts. They are playing the “satire” card.

Why would I suspect the “satire” defense by Fox News? Two reasons. First, I have a nearly pathological need for things to make sense in the world. Second, because they have done it before. In a September 29, 2020, NPR news article, David Folkenflik reported on another federal slander case, “You Literally Can’t Believe The Facts Tucker Carlson Tells You. So Say Fox’s Lawyers.” And the federal judge agreed.

This was in the 2020 defamation case, Karen McDougal v. Fox News Network. McDougal had sued Fox News, because Carlson said she had engaged in an “extortion scheme,” when she demanded money from President Trump. Fox lawyers countered and U.S. District Judge Mary Kay Vyskocil agreed, in her 12(b)(6) dismissal opinion, holding that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.'”

Trump’s Texas attorney, Sidney Powell, made the same argument in her motion to dismiss another $1.3 billion defamation lawsuit brought by Dominion Voting Systems, “No reasonable person would conclude that the statements were truly statements of fact.” Instead, she was making “Rhetorical hyperbole,” which, especially when made of a public figure about politics, is often claimed not to be a statement of “fact” and therefore, incapable of being defamatory.

Usually, when someone is joking, there is a “tell,” a slight smile, a raised eyebrow, or other signal that let’s us “in on it.” But “satire,” which is also protected by the First Amendment, doesn’t always have a tell.

According to the First Amendment Encyclopedia’s James Walker. “Satire is a literary form that humorously mocks, ridicules, and scorns individuals and political or social practices, is one of the most effective means of criticism. Since the time of the ancient Greeks, it has been used to lampoon the comfortable, the rich, the famous and, most important from a constitutional standpoint, the powerful.”

If you are trying to make sense out of all this litigation, “don’t.” (Because “it doesn’t.”) I feel like I am watching Steve Martin in the movie, The Jerk, describing carnival prizes on a shelf. “Somewhere, on a continuum, between uttering public criticism as hyperbole, and right there, next to a joke that is so absurd that no one would believe it,” sits a tiny little “sweet spot” where a person can be sued for defamation.” I just don’t know where it might be