Columns

It’s time to jettison the so-called political experts

April 18 ,2024

Former Republican National Committee (RNC) Chair Ronna McDaniel’s career as an NBC political analyst lasted all of four days. She did not even get the chance to characterize any election as rigged.
:  
Berl Falbaum

Former Republican National Committee (RNC) Chair Ronna McDaniel’s career as an NBC political analyst lasted all of four days. She did not even get the chance to characterize any election as rigged.

She was hired on March 22 with the major assignment to analyze elections and, then, on March 26 she was fired following an on-the-air firestorm over the appointment.

The criticism came from every quarter of the TV talk show news land. Chuck Todd, a former host of “Meet the Press” and now NBC’s chief political analyst, castigated his employer and did so on the air. MSNBC host Rachel Maddow devoted almost a half-hour of her program blasting the appointment.

On and on it went, interrupted only by commercials.

After all, as late as July 2023, McDaniel still maintained that President Biden’s election was “unfair.” And, the critics had the nerve to point out she tried to convince some electors not to certify the election.

Come on, who would be more qualified to analyze

elections and help us understand who won or lost and why?

Well, the powers to be at NBC decided maybe -- just maybe -- there was some validity to the criticism and cancelled their contract with McDaniel.

Said Cesar Conde, the chairman of the NBCUniversal News group which oversees NBC News, MSNBC and CNBC:

“After listening to the legitimate concerns of many of you, I have decided that Ronna McDaniel will not be an NBC News contributor. No organization, particularly a newsroom, can succeed unless it is cohesive and aligned. Over the last few days, it has become clear that this appointment undermines that goal.”

Okay, even though Conde is more concerned about kumbaya in the newsroom then hiring someone who wanted to destroy democracy and suppress the peaceful transfer of power, he made the right decision. We won’t quibble.

But now we have the opportunity to keep the ball rolling and get rid of several other “tainted” talk show commentators. I’ll name a few, beginning with Reince Priebus, who has joined ABC News as a political analyst.

According to Vanity Fair, Priebus advised Donald Trump after the Access Hollywood tape became public, that if Trump did not drop out, he would suffer an election loss worse than Arizona Senator Barry Goldwater did in 1964 when he won just six states for 52 electoral votes while LBJ won 486 electoral votes in 44 states and D.C.

Priebus then made public a statement of his own about the tape in which he stated, “No woman should ever be described in these terms or talked about in this manner. Ever.”

Forgetting he once had a little commitment to basic decency, after Trump won the 2016 election, Priebus served as Trump’s Chief of Staff for six months, defending him not only against charges of sexual assaults on dozens of women, but all the lies and other corruption. He is now an “objective” Republican political commentator.

Then we have Alyssa Farah Griffin, who served as Trump’s director of strategic communications and also assistant to the president. She is a co-host of ABC’s “The View” and a CNN commentator.

Griffin and several of her former White House colleagues frequently appear as “analysts,” criticizing their former boss on policies, policies they probably, at one time, defended or even proposed. They also condemn his character and lies, blatant untruths they helped to cover up when they served in the White House.

Add to the list Marc T. Short, who was White House Director of Legislative Affairs before being name Chief of Staff for Vice President Pence. Thus, he is an expert on the evils of Trumpism first and second-hand. He frequently appears on “Meet the Press,” NBC News, and CNBC.

On the other side of the aisle, we have Donna Brazile, who served as chair of the Democratic National Committee (DNC) and is a regular ABC News contributor.

While she is not plagued with the sins of Trumpism, she sounds more like a cheerleader than analyst. I always wait for her to bring along a set of pom poms.

As can be expected given the positions she has held, all is good with Democratic policies and no Democratic officeholder should be subject to questioning from the president on down.

Here is the major point: Partisans should not be used as commentators. It’s as simple as that. True, we need to hear different voices but they ought to come from analysts who don’t carry partisan baggage, i.e., historians, professors, journalists, and scholars who have studied American politics.

There is nothing to be learned from having Brazile argue with Priebus.  It is shallow and all too predictable. For them, obfuscation is an art.

McDaniel will be the first to tell you that as she watches political analysis in front of the TV instead of participating in the studio.

 
   —————

Berl Falbaum is a long time political reporter and author.

An ‘awards’ night that is well-suited for glitz of Vegas

April 11 ,2024

Once again, my editors barred me from seeking press credentials to cover a “fine arts” film awards program in Las Vegas January 27.
:  
Berl Falbaum

Once again, my editors barred me from seeking press credentials to cover a “fine arts” film awards program in Las Vegas January 27.

The event is the AVN (Adult Video News) dinner at which the best in the pornographic film industry is honored. This is the 41st time the program has been held and given my commitment to the highest journalistic principles and the “public’s right to know,” I have asked editors 41 times, through the years, to let me cover the ceremony. Alas, to no avail.

For those unfamiliar with this celebration, let me explain that the AVN hands out “Oscars of Porn” to industry participants.

Like at the Academy Awards, the awards are bestowed in more than 100 categories, ranging from best actor to top director.

Each year as I pleaded with editors, I pointed out that countless questions need to be answered to help the public understand the underpinnings of the awards.  (Since this is a family newspaper and a family column, I need to be careful how I write about my concerns and journalistic interests) That said:

--Like actors in Hollywood, do porn actors take lessons before becoming professionals and qualifying for AVN recognition?

--In the non-porn film industry, actors take lessons in speech. Do porn actors get help with panting, grunting, and other advice that will help them when filmed?

--Do directors shout instructions at actors while shooting a scene? Does that impact concentration and, more importantly, is that cheating and does such help disqualify a potential winner?

--How many times can a director instruct actors to reshoot a scene, particularly males?

--What if the actors complete a scene prematurely?

--Can actors refuse a partner?  You know they didn’t have the Bogart-Bacall chemistry?

Believe me these are just a few, very few, of the questions I have if my editors ever relent.

If I were to cover the awards, being a writer, I would concentrate on the scripts.  They never impressed me. Whoa…I will explain.

When I was a member in a fraternity (mucho years ago) we watched pornography in the basement of someone’s home, with the shades drawn.

I’ll admit, the dialogue was not the highlight of the films. The films were very much alike with intriguing titles like,” Housewife Meets Flower Delivery Man.”  The script:

(Stage direction:  Flower delivery man rings doorbell.  Off Stage “Ding Dong.”  Woman opens door.)

Flower delivery man: Here are some flowers for you.

Woman: They are beautiful. Would you like to come in?

Flower delivery man: Sure.  

Woman: Let me put these in some water. I will be right back.

She returns half naked and the woman thanks him for the flowers. She did not have to thank him; the flowers were from someone else. She asks if they can reach some kind of “settlement” since she did not have money to pay for
the flowers.

Strange how I could remember the dialogue almost word-for-word after so many years.  

It did not really matter whether the character at the door was a delivery man, an electrician, cab driver, roofer, plumber, gardener, pool boy, or the next door neighbor. The only ones who did not succumb were the door-to-door Jehovah Witnesses.

But the major point I want to make is that the scripts were pretty much alike.  As to the acting, well we weren’t watching for that either.

Another question: what do the winners do with the trophies? Are they displayed above the fireplace in living rooms, and what do they tell grandma?  I did not even tell my grandma that I watched porn.

I was curious if the public can attend the award ceremony. Yes, they can. Ticket prices average about $250 for the upper balcony. For about $2,500, you can buy a pass that gets you backstage.

You will probably run into a “porn star” since the publicity brags that about 1,000 will be attending.  

And did you notice that actors in the porn industry are always “stars” -- not just actors -- while in Hollywood you need to reach a certain status to earn that recognition.

I also learned that the AVN has a Hall of Fame. I won’t even begin to discuss the questions I have on how one qualifies for induction. But, I assume, the standards are pretty high.

I do have a suggestion for the AVN. Why not invite Joe Gow, the chancellor of the University of Wisconsin-La Crosse, to be the principal speaker. He was just fired for producing and participating in pornographic films. That would give the event some academic respectability.

I would also like to suggest, humbly, a scene which begins with Gow dressed in cap and gown, handing out diplomas. The scene develops with coeds accepting their diplomas.

So, I will pester my editors again for permission to cover the 42nd annual awards dinner next year.

If you think journalism would be served by having them approve my request, send them an email.

Thanking you in advance.

 —————

Berl Falbaum is a long time political reporter and author.

Mediator/party relationships: Creating the foundation for a successful process

April 11 ,2024

When mediators build a relationship with party decision-makers, gaining trust and promoting confidence in the mediator and the process, they create the foundation for a successful mediation process. 
:  
Sheldon J. Stark

I. Introduction
When mediators build a relationship with party decision-makers, gaining trust and promoting confidence in the mediator and the process, they create the foundation for a successful mediation process.  

II. Advance Knowledge

Typically, I know the lawyers who select me, but rarely have I met or known their clients. For me, then, the relationship building process begins the morning of mediation when I convene a confidential, private, introductory/get acquainted meeting with each party and counsel.

By the time of that meeting, I’ve gathered valuable information about each party. I’ve read the written submissions which describe the conflict and the parties. Advocates often attach supporting material such as deposition transcripts, email exchanges, and relevant documents. All shed light on what parties knew, how they think, and how they became embroiled in the dispute. I try not to pre-judge. The summaries, after all, are drafted by advocates and may not be an accurate or honest picture.

After reading the summaries, I call each lawyer on a confidential ex parte basis a day or two before the start of mediation. “How can I help you with your client?” I ask. “Is there a message I can reinforce or a message you’ve been reluctant to deliver on which I can do the heavy lifting?” The question elicits valuable insight essential to my preparation.

Just as I am learning about them, the parties generally learn something in advance about me. First, their attorney has told them good things about me, particularly why I was selected or agreed to. Second, they have my Curriculum Vitae. Third, most people conduct a computer search to see what they can learn. That’s what a content-rich website is for. See, www.starkmediator.com.

III. The First Meeting

I look forward with great anticipation to meeting parties for the first time. It is not at all uncommon to find they are nothing like their description in the papers.

While I don’t pre-judge, I bring certain presumptions to our first meeting. The conflict is the source of stress. For many, litigation has been an emotional roller coaster ride. Lots of money has been or will be invested in attorney fees and costs with the prospect of more ahead if the dispute doesn’t resolve. Their business or work has been disrupted. They are anxious about their business reputation, continuing disruption of their enterprise, exposure of private, sensitive or embarrassing information, financial loss, damage to future economic prospects, and more. Few come to the table with high expectations their matter will be resolved. Rather, they are often highly suspicious, skeptical of the mediation process, and at least slightly worried their counsel is losing confidence in their claims or defenses. All these issues surface one way or another during our first meeting without my having to directly ask.

Significantly, no matter how experienced or skilled they are at negotiating in their work or professional lives, they generally have little or no familiarity with how law suit negotiations unfold. A key part of preparation is to give them a better understanding of what to expect. The more their understanding is deepened, the greater the likelihood they will recognize the value of the process. See, https://www.starkmediator.com/practice-tips/2021/05/03/negotiation-101-what-parties-should-know-about-negotiations-at-the-mediation-table/

IV. Confidence Building Measures

If the mediation is in person, I always plan satisfactory food service. Many parties are too anxious to sleep the night before a mediation. They may not have had time to catch breakfast. By providing coffee, tea, bagels and cream cheese, and fresh fruit at the mediation, I meet their immediate physical needs, demonstrate sensitivity to their situation, and increase their confidence that there is something worthwhile and positive going on. Besides, as my grandmother taught me: Food is Love. It’s the grand oral equation. Plus, I add cookies and chocolate in the afternoon – reducing the chances we’ll break for lunch and lose momentum.

Before soliciting information, I discuss the confidentiality of the information they will be providing in caucus. The entire mediation process is, of course, confidential as to the rest of the world. What about our private, ex parte caucus communications? I promise that anything they say which they do NOT want communicated, will be protected from disclosure.

If I believe communicating confidential information would be helpful, I promise to ask permission first and explain my reasoning. Final decision remains theirs. The promise of confidentiality increases party trust in the mediator, confidence the process is safe, and simultaneously encourages candor.

V. Information Gathering

In General: My very first question after explaining confidentiality is, “How ya’ doin’?”

Not expecting that question, most parties are demonstrably relieved, increasing comfort with the process. With a nervous laugh, they typically say they are a bit anxious but otherwise fine, to which I respond: “as your head was hitting the pillow last night any issues or concerns going through your mind?” If something is troubling them, this approach typically brings that out.

I then ask whether they have any questions for me. Typically, there are none. Occasionally, however, their “question” opens the door to a robust exchange about important topics.  

Mediation/Litigation Experience: I’m a great believer in the need to educate parties and advocates about the unique opportunity presented by mediation as a dispute resolution process. The more they know and understand about mediation, the more benefit they will derive and the greater the likelihood of a satisfactory outcome. Mediation is not simply another stop on the litigation express. It is truly an opportunity to take a step back from the conflict, climb up to the balcony, examine perspectives, take a hard look at the risks and their magnitude, and collectively search for a resolution providing mutual benefit and closure.

Their experience and understanding provides a golden opportunity to explain my individual approach to the process and what they can expect from me throughout the day. I assure them mediation is entirely voluntary. No one will twist their arm to settle or deny them food and water until they cry “uncle”. My job, I explain, is to provide them all the information available so that they are able to make a good judgment about whether to settle and on what terms.

Party Preparation: I want to know if their preparation included anything other than speaking to their lawyer. Did they do a Google search about mediation? Did they read any articles? Did they visit my website? Did they review their own lawyer’s mediation statement? Do they think it is accurate? Was anything important omitted? Did they read the other side’s submission? Do they have an understanding of the strengths and weaknesses of their case? As mediation is nothing if not an excellent process for the exchange of information, this discussion reveals what parties need to know to make resolution decisions.

Party/Business Background: After the various preliminary matters mentioned above, I turn to learning about each party or, in a commercial dispute, their business. “Tell me about [yourself/your business],” I ask; then sit back and listen. “Sometimes it becomes important to know something about [you/your business] when I’m in the other room. I know a little from the written mediation summary, but not that much and I generally can’t leave the room to come over here and ask, so let’s talk about it now.” People appreciate the opportunity to tell you who they are or describe the enterprise they’ve built or proudly worked for. Patient listening instills confidence, builds credibility, and enhances the relationship.

Goals and Objectives: Next, I solicit party goals and objectives. “Without telling me a specific number, in broad general terms, what do you hope to gain from the mediation process today? What are your goals and objectives?” Some parties appear shocked as no one has ever asked them this question. Before completing their list, I ask counsel if they have anything to add. Sometimes the list of goals reveals whether the party is approaching mediation realistically or not. Sometimes, the list leads to a better understanding of the underlying needs and interests driving the dispute. In any event, this question has a powerful impact on the development of trust and confidence in the
mediator.

VI. Techniques

One message: After we’ve had a thorough discussion in the “get acquainted” meeting, I ask if there is any one message they truly want delivered to the participants in the other room. Sometimes this can move the mediation forward – as with declarations of an intent to find an off ramp to the dispute - and sometimes it can stimulate a constructive discussion about who the other side is, what motivates them, and how best to communicate with the person making the decision in the other room.

Service as Negotiation Coach: As the only person who will be in both caucus rooms, the mediator is in a unique position to anticipate how various proposals and counterproposals will be viewed when communicated. Part of the mediator’s role is serving as a negotiation coach. I remind parties that I will not tell them what to settle for, but I do ask permission to “push back” on an unproductive proposal to see if we can’t figure out a better way to approach the next round. Advice about how to “package” a proposal can be especially constructive.

Reframing: We train new mediators in the 40-hour basic training to use reframing when parties make opening statements. The technique is equally powerful throughout the day, especially when parties escalate or crank up the emotions. Reframing shows parties that you’ve heard and understood them. If I can repeat what they said in my own more neutral or abstract words the temperature is lowered and we can move forward.

Providing Process Information: Discussion topics with counsel often involve legal issues like dispositive motions, the admissibility of evidence, jury selection, and judicial track records. Parties feel left out and confused. I bring the clients back in by explaining what we are discussing and why it might be important. “Judges have track records,” I might explain. “The judge you’ve drawn in this case is considered plaintiff oriented. That means, a motion to dismiss these claims is unlikely to be granted. (Or vice versa). We’re discussing what that might mean for this case.” Parties appreciate these explanations and start paying closer attention.

Remaining Calm, Neutral and Engaged: People can get emotional in the mediation process, even sophisticated participants. They can escalate. They can grow impatient. They become hyper-critical of unproductive proposals. They express consternation and hostility when the other side fails to match a concession or match a productive proposal. By maintaining our neutrality, remaining calm and confident in the process, and reminding everyone of the progress made to date, mediators are role models for optimism, patience, and rationality.

VII. Conclusion

When parties trust the mediator, have confidence in the process, and value the relationship growing stronger throughout the day, a solid foundation is laid for considering proposals thoughtfully, weighing risks realistically, and finding a solution providing mutual benefits and gain to all. Building a solid relationship with the parties is well worth the effort and will pay dividends in a negotiated resolution.

—————

Until he retired at the end of 2022, Sheldon J. Stark offered mediation, arbitration, case evaluation and neutral third-party investigative services.
He was a Distinguished Fellow of the National Academy of Distinguished Neutrals, continues to be a Distinguished Fellow with the International Academy of Mediators and was an Employment Law Panelist for the American Arbitration Association.
He is also a member of the Professional Resolution Experts of Michigan (PREMi).
He is past chair of the council of the Alternative Dispute Resolution Section of the State Bar of Michigan and formerly chaired the Skills Action Team.
Stark was a distinguished visiting professor at the University of Detroit Mercy School of Law from August 2010 through May 2012.

Threat of nuclear war should put U.S. on high alert

April 04 ,2024

I read the paragraph several times. I wanted to make sure I understood all of its implications. When I did, just one word came to mind: Insanity.
:  
By Berl Falbaum

I read the paragraph several times. I wanted to make sure I understood all of its implications. When I did, just one word came to mind: Insanity.

Insanity, pure insanity.

How else can one describe Russian President Putin’s threat to launch nuclear weapons and destroy the Earth?

In his annual state of the nation speech (February 29), Putin was very clear about the threat. He bragged about his country’s nuclear arsenal and that he was prepared to use it even if he had to sacrifice Russia and the rest of the world.

Insanity.

While acknowledging that a nuclear attack would bring retaliation, Putin nevertheless threatened such an attack which, in effect, would be a death sentence for Russians and have worldwide consequences.

For what? A nuclear Armageddon does not achieve his objective of taking Ukraine.

Insanity.

This is stuff for psychiatrists not political pundits or analysts. This is impossible to deal with rationally.

Mr. Putin said NATO countries that were helping Ukraine strike Russian territory “must, in the end, understand” that “all this truly threatens a conflict with the use of nuclear weapons, and therefore the destruction of civilization.

“…[W]e also have weapons capable of striking targets on their territory.  Everything they are inventing now, spooking the world with a threat of a conflict involving nuclear weapons, which potentially means the end of civilization -- don’t they realize this?

“Strategic nuclear forces are on full combat alert and the ability to use them is assured,” he said.

Insanity.

He has suspended participation in NewSTART, Russia’s last major arms limitation treaty with Washington and has moved tactical nuclear weapons to ally, Belarus.

NewSTART, which limits the number of warheads that each side can deploy to 1,500, was due to expire in 2026. The U.S. and Russian have 90 percent of the world’s 12,500 nuclear warheads held by nine countries.

Insanity.

Incidentally, Putin’s threat came about two weeks before The New York Times published a series of articles on the threat of nuclear war. Resulting from a year of reporting and research, the series is titled “The Threat of Nuclear Weapons in an Unstable World.”

In the series’ introduction, Kathleen Kingsbury, opinion editor, writes: “The growing threat of nuclear weapons is simply not part of the public conversation. And the world is less secure. Today the nuclear safety net is threadbare.”

W.J. Hennigan, the project’s lead writer, describes what would happen if one -- just one -- nuclear device were detonated. It is hair-raising, not bedtime reading.

He observes: “Even a limited nuclear war could be catastrophic.  A 2022 scientific study found that if 100 Hiroshima-sized bombs, less than one percent of the estimated global nuclear arsenal, were detonated in certain cities it would generate more than five million tons of airborne soot… creating the largest worldwide famine in history.  An estimated 27 million could immediately die and as many as 225 million may starve within two years.”

Insanity.

He makes public how close the world came to breaking the “decades-long nuclear taboo” in the fall of 2022. The odds of a nuclear strike at the time were 50-50, according to expert analysts and, as far as I know, not one word was published on this threat.

Here is how Hennigan says the threat developed and how the U.S. responded:

The Russians said that Ukraine was planning to use a so-called “dirty bomb” which the U.S. and Ukraine decided was a ploy to give Russia an excuse to use a nuclear weapon. Supplies were flown to Europe; hundreds of radiation detectors were set up; U.S. sent more than 1,000 hand-held radiation monitors; 200 Ukraine hospitals were identified as go-to facilities; thousands of doctors and nurses were trained to respond appropriately; and millions of potassium iodide tablets were stock piled around the country.

“Nuclear war is often described as unimaginable. In fact, it’s not imagined enough,” Hennigan said.  

Insanity.

For a week, the White House and the highest-ranking officials worked around the clock and planned for the worst.

A nuclear doomsday was averted, but as Putin makes clear and The Times articles corroborate, the world is sitting on a nuclear power keg, and the dangers of it exploding are not far-fetched. We cannot rely or take solace in the fact that we were on the right side of the 50-50 odds in 2022.

“The possibility of a nuclear strike, once inconceivable in modern conflict, is more likely now than at any other time since the Cold War,” says Hennigan. He continues:

“…[M]ost of the world has barely registered the [nuclear] threat. Perhaps it’s because an entire generation came of age in a post-Cold War world, when the possibility of nuclear war was thought to be firmly behind us. It is time to remind ourselves of the consequences in order to avoid them.”

We cannot and must not let this insanity fester without treatment.

—————

Berl Falbaum is a long time political reporter and author.

The ripple effect: A look back at Mayfield v. ASC Inc.

April 04 ,2024

Years ago, I attended an American Bar Association Conference held in Beverly Hills, California. One of the speakers was Jay Foonberg, Esq., a marketing guru in the legal profession.
:  
JJ Conway

Years ago, I attended an American Bar Association Conference held in Beverly Hills, California. One of the speakers was Jay Foonberg, Esq., a marketing guru in the legal profession. Foonberg was a real character. He said a lot that day. One of the things I remember is that he referred to his law degree as a “magic carpet.” He carried the example even further saying that when he kneeled on it, it took him to places he could never imagine. I thought it was a funny line, maybe a bit wacky. As time has marched on, I am beginning to realize just how right Foonberg was. His magic carpet analogy just keeps coming back to me as I look back at some of our clients’ cases that shaped the law and served to help others in a tangible way.

Mayfield v. ASC Incorporated Health & Welfare Benefits Plan (E.D. Mich. 2007) was one such case. The case would have otherwise been a routine healthcare denial but for the person who brought it. Christopher J. Mayfield was a dynamic salesperson with an infectious enthusiasm for life. He brimmed with optimism and punctuated every observation with a huge smile and hearty laugh. As lawyers, we know there are some clients whose call we would take anywhere, anytime. Chris was one of those clients.

He and his wife, Liz, an impressive person in her own work life, had a son who was struggling during the early stages of his development. The child’s actions suggested that he was having difficulty communicating and making sustained eye contact.

The couple sought out help from the child’s medical providers. They were informed along the away that their son, in all likelihood, had autism spectrum disorder. The condition was on the rise, and statistically the number of cases among toddlers was growing rapidly– 1 out of 150, 1 out of 100, 1 out of 60.

Still, there was no known cause and no known cure.

The couple began researching treatment options and seeking out the advice of medical providers. What they found was that young children receiving a decades-old therapy known as Applied Behavioral Analysis — or ABA — showed progress in establishing improved communication abilities and independent living skills. For those children on the spectrum who were higher functioning, ABA held the promise to help those children’s functional abilities become almost indistinguishable from children without autism.

As promising as ABA therapy was, there was a dearth of treatment centers. And because the signs of autism tended to surface around 18 months, which coincided with the age for administering the Measles, Mumps, and Rubella (MMR) vaccine, the internet was awash in misinformation. This was a perfect setting for health insurers to exploit. Medical plans reflexively denied all claims for ABA therapy by labeling it “experimental” or “investigative.” That meant that ABA treatment, which was costly, could be denied under the general exclusions section that appear in all health insurance contracts.

The problem with this reason for the denial for the Mayfields was that they saw real gains in their son’s abilities. Their son’s ABA therapy, which sometimes involved 40 hours per week of intensive work, was showing real functional improvements. And the setting where the therapy took place was safe – it was kid-friendly but also had sufficient clinical controls and was overseen by top-notch physicians on staff with a major medical center.

The Mayfields also noticed what later became known as the “parking lot problem.”  The cars in the ABA treatment center parking lots tended to be expensive cars suggesting that care was available for those with means, not those without. At the time, the cost for ABA therapy was as much as a year of college tuition with room and board — and there was no 529 plan to tap. In other words, without insurance coverage, parents were paying college-tuition size bills for therapy being provided to two-year-olds.

The Mayfields resolved to fight the denials and fight them hard. They asked me to go and observe the ABA treatment of their son. They set up interviews with ABA experts. They made arrangements for me to receive a crash course on the therapy’s efficacy by doctors who provided me with studies and literature that would allow us to challenge the underlying basis for the denial.

So, we went to heart of the denial — was ABA therapy really still in its experimental stages as the insurers alleged? There was so much research showing it was an established mainstream treatment that the old studies were embarrassingly shallow.

The Mayfield’s case was 100 percent evidence based. They kept it data-driven by design.

After all the internal administrative appeals, litigation, and ultimately a federal court hearing, Judge Anna Diggs Taylor’s order in their case was elegantly simple. She overruled the insurance company, threw out the exclusion as applied to ABA therapy, and ordered the treatment covered. She ruled the therapy was proven, mainstream, and effective. It was a brief, terse ruling.

But this brief order was like throwing a stone in water, as it would have real implications for the rights of children with autism and their parents in the coming years.

The Mayfield case led to many cases seeking ABA therapy on both an individual and class-wide basis (which will be discussed in a future column). But the universal takeaway is that a lawyer should listen and learn from their clients.

No one knows a case better than the client, even a case involving purely medical evidence, and there is an extremely valuable knowledge base there. The idea of listening, learning, and incorporating those ideas into a case makes for a winning strategy and rewarding lifelong relationship.

—————

John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

Despite his record, President should drop out of race

March 28 ,2024

Sometimes in politics, as in life, there are no easy choices, and this is one of those times.
:  
Berl Falbaum

Sometimes in politics, as in life, there are no easy choices, and this is one of those times.

The quandary I am talking about is whether President Biden should drop out of the presidential race.  After long and serious reflection, I think he should.

Biden supporters hold your emails. Let me explain.

I think Biden has done an outstanding job both domestically and in foreign affairs. I have written about his record in previous columns.

To repeat: His legislative record in modern times is second only to LBJ. On the world front he unified NATO, is handling two wars (Ukraine and Israel) with skill and has respect throughout the world.

While it has not inexplicably penetrated the public consciousness, the economy is strong. Unemployment has been under 4 percent for two years; 15 million jobs have been created; inflation fell from 9 percent to less than 4 without a recession as predicted by some economists; the stock market is at record highs; consumer confidence jumped to a two-year high in January; and the GDP has grown 3 to 4 percent in the last two quarters.

Federal Reserve Chair Jerome H. Powell has hinted that, given the health of the economy, he may recommend cutting interest rates later this year.  

This is not to suggest that I have no bones to pick with Biden. For instance, to cite a few issues: the Afghanistan withdrawal was disastrous and he lied about the advice he received from the military, he has added trillions to the deficit, and approved drilling on pristine public lands in Alaska.

A president, however, needs to be judged, as others must, on the totality of their work. No one in public office ever pleases everyone; it’s not possible.

And, let me emphasize, I do not believe that he is suffering from a deterioration of mental acuity. But admittedly, I have serious concerns that, at his age, Biden is more susceptible to illnesses both physical and mental.  He will be 82 November 20, 15 days after the election.

So, you ask, and rightly so, if I believe Biden has been an excellent commander-in-chief, isn’t it unfair to ask him to bow out?

Absolutely, I agree totally. But we cannot afford the risk of having Donald Trump elected to another term and it appears that he is the odds-on favorite to defeat the sitting president.

According to polls, the electorate is prepared to re-elect a twice impeached president, a narcissist, a pathological liar, a sexual pervert who not only bragged about assaulting women but has been found guilty of doing so, has 91 felony charges facing him, has threatened to tear the Constitution to bits, has alienated Allies worldwide, has lied about the 2020 election, incited a deadly insurrection which threatened the peaceful transfer of power, and embraced white supremacists fomenting racism and antisemitism.

And that is just a brief summary. Who would not want to vote for a man with this record?    

We need to understand that a Trump victory will not result from just Republican votes. He cannot win with that support alone. He also has the backing, according to polls, from a large percentage of independents and even some Democrats. I don’t comprehend that either; I have never understood how Trumpism took root since it rode down that golden escalator in 2015.

Biden supporters maintain we need to have faith and hope, something “major” may yet happen. But Biden needs more potent political weapons than faith and the hope that an unexpected “bombshell” will boost Biden to overcome some of the following dismal facts: In polls, Biden trails Trump nationally and in crucial swing states; he is losing support among the black, Latino, young, the pro-Palestinian and college electorate; many Democrats, overall, are unhappy with his candidacy; dislike his running mate, Kamala Harris; and his approval rating, nationally, stands at a depressing 38 percent.

With a new candidate three negatives would be erased immediately: the age/mental acuity factor, the lack of enthusiasm among Democrats for Biden, and opposition to Harris.

I know that stepping aside would not be an easy decision for Biden. Putting pride and ego aside, the presidency, after all, is the most powerful office in the world and to surrender the opportunity to occupy it for another four years would require a huge sacrifice.

But given the devastating fate facing the nation should Trump win another term, Biden needs to reevaluate his decision and act accordingly.  

Of course, there are practical questions. Is there time for a new candidate to organize and raise the cash needed to launch a substantive campaign?

Would a fight among possible Democratic presidential candidates weaken the ultimate winner and make it easier for Trump?

I would propose that Biden convene the best minds in the party and develop a plan that would give us more than mere faith/hope that Trump can be defeated.

Some have suggested that the party choose a replacement at the Democratic National Convention to be held August 19-22 in Chicago.

That’s a possibility but it might be too late, only a mere two months before the November 5 election. Organization and money are not the only issues vital for a vigorous presidential campaign. A candidate also needs to establish an identity among voters and there may not be enough time to accomplish that within two months.

I don’t know if, at this point, we can, to use a cliché, change horses in mid-stream, but the issue should be seriously explored.

Risks are hard to gauge, but I think the risk of a Trump victory is greater with Biden than with a new Democratic candidate -- even at this stage.

Biden is a decent man who has dedicated his life to public service. I firmly believe that he understands completely what is at stake, i.e. the future of this country as the world’s greatest democracy. Given a comprehensive and plausible alternative, I think he would sign on, withdraw and work for and with his replacement.

We need to mobilize our entire political arsenal to make sure that we avoid a self-inflicted fatal wound. But a decision needs to be made now.

—————

Berl Falbaum is a long time political reporter and author.