Life is a fight....a fight you will win

With the end of the year upon us, I see many people struggling in one way or another. There are untold countless others who suffer silently. Good news - it will get better. Good days are ahead. For some, they're right around the corner. For others they're further away, but still on they're way. It won't be easy. You'll have to fight. But that's ok.

Life is a fight. Fights are always tough, grueling, and full of personal trials. I train a few styles of combat focused martial arts. The number one rule is to keep your hands up; to protect yourself. Yet we all still manage to get punched in the face at some point. How?

In sparring, getting punched in the face really gets your attention in a way nothing else quite can. Sometimes the opponent is just better/more experienced and there was nothing you could do. Other times its because without even realizing it you dropped your defenses ever so slightly. When you get tired, complacent, overconfident, or comfortable - you drop your hands without even realizing it; till its too late. Most importantly - if you get knocked down, you get back up. Maybe it takes a second or two to shake the cobwebs, but you get back up.

Same with life. Bad things happen. You'll take punches. Sometimes it's beyond your control. Other times it was because you dropped off a bit without realizing. You WILL get knocked down. But you must get back up. After all, even the greatest fighters get knocked down. Muhammad Ali said there wasn't anything wrong with getting knocked down; but staying down was wrong. There's a Japanese proverb that says essentially: fall seven times, then get up eight.

So if 2018 punched you in the face or knocked you down: know that better days are ahead. Reassess your situations. Learn from the mistakes. Sharpen your focus. And always, ALWAYS - get back up. 2019 has great things in store. 

Kill the Ego

Kill the ego. Sounds easy enough. I recently learned, it's anything but.

I always had really good leg strength. But years ago I gave up squats. Partly due to major sports injury. Mostly because they made me feel like I was going to break into pieces. My ankles, knees, hips, back - all hurt. I decided I was too old for squats. I retreated to the leg press.

The squat is the single most effective lift for building leg strength and burning calories. The leg press just isn't. Yet I settled because I felt stuck, with no options.

Until I watched a video about leg work. It was all technique, control, and ego. How bad form causes pain. For real growth, real strength, you must strip all the weight and start over. Perfect your technique. Then add weight.

Terrifying. Noone wants to go light. The gym can be the most judgmental place on the planet. We constantly compare ourselves to others, and vice versa.

I started with the bar. Then 95 pounds. Ya, I got funny looks. Doubt creeped in. Girls were squatting more than me. A guy was squatting three times my weight. Suddenly I noticed my legs were jello! Proper form loaded my muscles like never before. The best leg workout of my life, without joint aches and pains.

Everything changed because I was willing to change. Funny how that also applies to life.

Feel trapped? Hit a plateau? Think this is as good as it gets? Doing things a certain way because it's how you always do it?

Strip it down. Analyze it. Start over. Try a different approach. Do what others won't. Don't miss out on the very best because it requires an unusual sacrifice. Don't be prisoner to your ego. This applies to gym, work, or relationships.

To get something you've never had, do something you've never done.

Kill your ego. Strip it down. Start over. Then enjoy your breakthrough.

The OJ Simpson trial: How the Juice Got Loose

Thanks to the new mini series and 30 for 30; there's alot of renewed interest in the OJ trial. I've been asked about it alot. Did he do it? How can his lawyers live with themselves? How did he win? How did the prosecution lose? I haven't watched any of the recent OJ material, so if any of it is duplicate information, my apologies.

As Denzel Washington's character (Alonzo Harris) said in Training Day: "Its not what you know. Its what you can prove". This is true in all cases, but especially so in the OJ trial. Very very few people think OJ was actually innocent. But that isn't the standard. A criminal defendant MUST be presumed innocent, and proven guilty beyond a reasonable doubt. The jury panel, in all their interviews said just that - the prosecution didn't meet their burden. 

Without a doubt, this is a case the prosecution should've won. There was the history of domestic violence, DNA evidence at the scene, motive, opportunity, etc. But the police and the prosecution fell to a common error - trying to turn a good case into an air tight case. They paid for it with a loss, and their careers.

The direct evidence they had (OJ's blood at the scene, etc) was torn apart by the defense team, because the police did a terrible job handling the evidence. Mark Fuhrman was a known racist, and should've never been the lead detective on the case; or any case for that matter. There were allegations of evidence being planted. When asked about it on the stand, Fuhrman plead the fifth. Someone pleads the fifth when their answers to a question could result in them incriminating themselves. Even though noone can say definitely - the only possible outcome one can deduce given the response was that Fuhrman had planted evidence.

Also the prosecution drug their part of the trial out far too long. The more they presented, the more holes the defense team tore in the case. As a wise judge once told me while I was arguing a motion early in my career, "Mr. Ashley, if you'll just be quiet, I'll go ahead and rule for you".

Its always best to prove your case as efficiently as possible. Anything else is a waste, and opens up weaknesses that aren't there otherwise. In fact, many of the openings they gave the defense team was by putting on iffy testimony that wasn't even necessary. It seemed like the prosecution's ego demanded they try to out wrangle the dream team rather than putting on their best case.

We all remember the moment where Darden requested OJ put on the glove; which was a spectacular failure. Like I said above, this was totally unnecessary. The glove itself was plenty good enough. Plus its a good teaching point for all lawyers - never swing for the fences unless you KNOW its going to work. No way this should've been attempted, because there was no way Darden could've known if the glove would fit or not. It didn't, and it became the basis for the theme in Cochran's masterful closing - "If it [the glove] doesn't fit, you must acquit",

Nothing wrong with having a good case. But bad things happen when you try to take a good case, and stretch it into a great case. This was a perfect example.

Speaking about the dream team, here are some of the important players:

• Robert Kardashian: Yes, believe it or not, there was a time when Kardashian wasn't a household name. Now hes famous for being Kim's dad, the man was also on the dream team, but wasn't really much of a cog in the defense wheel. Kardashian was a long time friend of OJ, and was used more of a liason/handler than an attorney. In fact, when he became part of the dream team, Kardashian hadnt practiced law in 20 years, and had NEVER tried a criminal case. 

• Robert Shapiro: Known more for his negotiating than his trial expertise, Shapiro already had a reputation for negotiating star athletes out of legal trouble. Shapiro was also a master at dealing with the media, and was held in high regard by Judge Lance Ito. Although Shapiro was initially lead counsel, he eventually fell out of favor with the rest of the dream team; likely due to the fact he wasn't a prominent or skilled trial lawyer. 

• Barry Scheck: Much more low key than most of the dream team. However, some thing Scheck was the most important member defending Simpson. Known for having a masterful grip on the law and procedure. This was especially important in those days, before the internet made legal research much more efficient. Even more important, Scheck was an expert in challenging DNA evidence. This was crucial, because Scheck devastated the prosecution's witnesses when it came to the handling of the all important DNA evidence collected at the crime scene. His cross examination was 1 of the 3 important keys to the defense victory. Scheck started the innocence project, which uses DNA evidence to free wrongfully convicted death row inmates.

• F. Lee Bailey: Clearly in the twilight of his career at the time. Yet Bailey was widely regarded as the best criminal trial lawyer who ever lived. A true legend in the art of cross examination. His powerful cross examination of Mark Fuhrman was the 2nd of 3 keys to the acquittal. F. Lee Bailey was subsequently disbarred and no longer practices law. 

• Johnnie Cochran: The charismatic Cochran rose to fame during the trial probably more so than any other of the dream team. Cochran eventually overtook the role of lead attorney from Shapiro, much to the disdain of Shapiro. Cochran delivered the masterful closing, which included "if it doesn't fit, you must acquit"; the 3rd of what I believe were the keys to the defense victory. He died in March of 2005.

How can a lawyer live with winning a case when the client is guilty? Personally, I never ever ask the client if they're guilty. May sound crazy, but whether they did it or not really doesn't matter. It just matters what the government can prove. If I ask that question, then it may make it harder to practice my case objectively; and being able to objectively evaluate my case at all times is extremely important. 

I've won many trials I thought I should've lost. Not because I thought my clients were guilty. In fact, I wont try a case if I think my client is guilty as charged. But because the resources of the state/federal government are vast, and they are excellent at prosecuting a case. Trust me, you do NOT want to be in their cross hairs; especially without an excellent lawyer by your side. 

After the OJ case, both Kardashian and Shapiro expressed their doubts about OJ's innocence. F. Lee Bailey maintains OJ is innocent. To my knowledge, neither Cochran nor Scheck have commented on the topic. 

In the end, you cant buy freedom. However by hiring the best lawyer(s) possible, you can definitely increase your odds at winning; which is the next best thing. The defendant is presumed innocent, and only guilty if proven beyond a reasonable doubt. Remember, "Its not what you know. Its what you can prove".

Pets and Estate Planning (The basics)

When I die, what will happen with your pets? Who gets them? Will they be cared for?  If I die before I wake, who will feed "Jake"? Huge, legit concerns. And one of them made for a pretty fine country song back in 1991. I'm not telling you which.

In Kentucky, and most states - when someone dies (decedent), a court procedure must be initiated to ensure their belongings are disposed of properly. This is probate. In Kentucky, the rules for disposing property differs depending on if the decedent had a will (testate), or not (intestate); and if the property is real estate (real property/realty) or personal (chattel).

As with many areas of the law, probate uses terminology that sounds like something right out of Game of Thrones. This is mainly because most of the terms came over from England; and have somehow stuck around. I'm not even joking.

In the eyes of the law, pets are considered personal property.

If the decedent died intestate, there are statutes that clearly and strictly govern how property is to be disposed. This is called "intestate succession", and trust me - you don't want to read about it because its incredibly boring. But....the important part is you have absolutely no control over who gets your pets. None. The law is clear, its followed to a tee, and no one will have any ability to deviate from it. Not what you want.

If the decedent had a will, courts GENERALLY follow it; with some exceptions that I wont go into for fear of putting you to sleep. Your will, gives you the tools you need to care for your pets after you die. You can name who you want to care for your pet, leave money for that person to care for your pet, etc.

My favorite pet friendly estate planning vehicle? Trusts; testamentary trusts (OK Im allowed one lame Bond/estate planning joke per piece). A trust is a legal entity created by law, where one person (Grantor) places property (corpus) in the possession of another (Trustee), for the benefit of someone/something (beneficiary). A testamentary trust is a trust created by a will.

Why do I like it better? Wills go through probate, probate goes through court, and a probate case must be eventually closed. Also, if you will money to someone to care for your pet; there's no legal requirement they use the money properly. They could go buy a new car, new clothes, etc.

A trust on the other hand, doesn't require judicial oversight; and it's perpetual until the money runs out or the purpose for the trust ends. Plus the trustee has a fiduciary duty to use the money as directed in the trust, pursuant to the restrictions/guidelines in the trust document and state law. Finally it lets the will go through probate, and the probate be closed while the trust continues on.

I prefer trusts, but they too have their own limitations. Each state and each case is different; so definitely consult with an attorney to discuss which choice would be best for you and your pet.

The UL Sex Scandal: On the Verge of a Break

A few days ago, Katina Powell and her daughters made the media rounds, and provided loads of documentation and evidence backing up their version of events. This information was also independently verified by Outside the Lines through an independent investigation.

That day, and the days that followed, were a PR nightmare for UL. Nearly every talking head in the industry called for Pitino's resignation. The remainder, acknowledged the severity of the scandal and predicted he wouldn't survive professionally.

Then came news Pitino was not going to the ACC media days, instead students would be sent like lambs to the slaughter. More PR nightmares ensued. That is, until yesterday.

Starting yesterday, it all changed. Local sports personalities suddenly changed their tune, all at the same time. This is no coincidence. But what does it tell us?

It tells me that UL thinks they have a plausible theory they're about to release; and I expect Forde to be the one who breaks it. Remember my predictions when the story first broke? I predicted McGee would fall on the sword, and UL let Forde break the initial story because that would make him more credible later on in case UL needed to float a questionable story. 

McGee resigned his position last week, which means he is no longer under the control of UMKC. This was step 1 to having him fall on the sword. I THINK the local sports writers are just batting lead off; and they're about to let Forde come in for the clean up with some theory about inappropriate relationships with Powell and McGee; and hope it gets traction. Or that McGee paid for prostiutes for the guardians without the recruits present. Those are the only angle that makes sense, given the new direction taken by the local personalities. Especially so since at least one story attacked the "in other places" portion of Powell's story.

So in the coming days, keep an eye on Forde; because he'll be the one who breaks it.

The UL Sex Scandal. What to know. What to expect.

I rarely write about sports. The rare exception is when my experience as an attorney and crisis manager may give useful insight to the casual observer. This is one of those times.

In case you missed it, news broke late Friday evening that a book was about to be released by a Louisville Madam who claims she was paid for her and her friends to perform sexual acts for current and prospective UL basketball players. Allegations included the pay for sex with prospective players was to entice them to sign with UL.

Explosive is an understatement. But lets break down exactly what we know, what it means, and what to expect.

1) Pat Forde broke the story late Friday evening. Anyone in PR/crisis management knows Friday evening is the time to dump bad PR news. That way there's an entire weekend news cycle before Monday hits. Typically, weekend news ratings are very low. Plus there's always the good chance another big news story will break over the weekend, which gives people something else to talk about on Monday. For example, this weekend will be Hurricane Joaquin.

The other important part, is letting Forde break the story. Forde is a long time friend of the UL program and Pitino. Forde even co-authored at least 2 books together. So he's hardly an unbiased reporter. By letting Forde break the story, he becomes the "authority" to the casual observer. This means he can be used to later filter in the UL side of things later, without the casual observer knowing any better. Its already happening, with Forde saying Pitino had no knowledge. Maybe Pitino did. Maybe he didn't. But don't believe it just because Forde says so.

2) The press conference was a disaster. Jurich and UL knew about the allegations since August. They almost surely fed Forde the information, and coordinated with him about its release (remember it was Friday evening). So its not as if this was totally unexpected. Yet it went terribly, which speaks volumes. This likely means they think the allegations are true, or mostly true.

There was also an important interchange between Pitino and a reporter. During the exchange, a reporter tried suggesting that Pitino was saying the allegations weren't true. Pitino quickly and sternly corrected him, and explained that he was not saying they weren't true. This likely means Pitino was mindful of avoiding any language which may result in a defamation suit. This leads us to the next point.

3) There was likely negotiations to keep this information private. Blackmail/extortion is illegal. However, its legal to offer the sole and exclusive right to publish the book to anyone who's willing to pay the asking price; including Pitino, Jurich, or any of the players. Of course that means the book would never be published, but that's the point. Why do I think this?

Players were contacted months ago about this book. Pitino and Jurich knew about it since August, and there's even been an investigation. Yet there's been no leak and the Friday press conference looked a little surprised, given all things. Why wouldn't the story break before now? The publisher certainly would not choose to release this book Friday night. There's really no other explanation except negotiations had been ongoing, but suddenly fell apart; so Jurich and company went preemptive.

4) Jurich and UL are incredible at protecting information. Players knew for months. Jurich and Pitino knew since August. Compliance knew. Private investigators knew. Thats alot of people to know about such explosive allegations. Pretty incredible noone leaked it.

5) McGee almost certainly did not act alone. Im not saying Pitino knew about it. But someone almost certainly funded this operation. We may never know, unless this case ends up in the legal system; which is a definite possibility. But there's almost certainly a bank trail, since the book mentions McGee getting money from ATM's.

6) What to expect. There are several factors to consider. Pitino is a legend, with his legacy at risk. McGee is on the move up, but is a true company man. The 2013 national title is in jeopardy. Jurich will be untouchable, short of the money being traced back to him. As of now, UL thinks the allegations are true.

I would have McGee take the fall, claim Pitino had no knowledge, admit to major infractions; but only following the 2013 season. McGee is on the way up, but is still expendable in this scenario. This somewhat saves Pitino's legacy, which will be tarnished regardless. It would save the 2013 banner. Jurich is safe regardless. Based on what we know right now, its what Id do. I think its what they'll do too.

Critters and the Court System

In certain areas, the law greatly lags behind society. This is true in technology, social media, and pets in divorce actions. In a typical divorce case, the two main disputes concern custody and property distribution. Currently, under the law there are two types of property: real and personal. Real property includes all real estate, and attachments. Personal property covers everything else; including pets.

In cases with children, usually the pets go with the children. In other cases, it isn't so easy.

In most states, personal property and debt must be distributed equitably. I'm often asked: "whats an equitable property division?" Its different in every case; but it often isn't equal. Not much of an answer, I know. This is especially difficult with pets. After all, how can you enjoy 1/2 of a pet? Or split up pets? Neither are good ideas.

Even worse, the method for distributing personal property is based on its fair market value. Fair market value is usually the price a willing buyer would pay to a willing seller for the property; in this case the pet. This is particularly devastating to pet owners, because the fair market value of a pet doesn't begin to reflect the actual value to the owner. Yet under the current state of the law; courts cant take that into consideration.

Of course there are whispers of cases where Judges have deviated and applied the "best interest" standard to pets, which is normally reserved for children. "Best interest" standard, means the court looks at whats best for the children, rather than the interests of the parties. But applying that standard to pets is extraordinarily rare, even in the more progressive local jurisdictions.

A growing number of states (30, according to www.animallaw.info)  give pets particular protection in domestic violence cases. Neither Kentucky nor Indiana do, as of the date of this article.

What if you aren't married? Then you get to file a personal property lawsuit, which most jurisdictions call "trespass to chattel". If you doubted me when I wrote this area of law is seriously lagging, using words like "chattel" should remove all doubt.

How to navigate this minefield? The law may change, which could govern pets much like children. But that's far from certain. At best custody of pets is an area of the law in flux and underdeveloped in many jurisdictions; and non existent in others. This is particularly difficult, because it doesn't give an attorney much indication on how a court is likely to rule. Which segues into my next point.

In litigation, although an attorney may have an idea; noone cannot control or accurately predict what a court will do. Otherwise, there would never be litigation. So the outcome is always unknown; and dealing with the unknown is always tricky. This is especially true when dealing with something as valuable as pets. The best way to control the outcome, especially regarding pets, is through an agreement via settlement.

There are four different types of agreements: Cohabitation, Prenuptial/antenuptial, Post nuptial, and property settlement agreements. Cohabitation agreements would be appropriate when the parties wish to live together, without considering marriage at that time. Prenuptial is before marriage, in consideration of marriage. Post nuptial is post marriage, but pre-divorce. Property settlement agreements are after marriage and with a divorce pending; in which the agreement resolves the property issues in the case.

Agreements avoid the unpredictable outcomes associated with litigation; reduce litigation costs; and help provide a set schedule for when/where each party can enjoy time with their pets. Finally they can also help parties appropriate veterinarian costs; which is often litigated more frequently than actual pet custody/visitation. Any pet owner knows, vet bills can be very, very expensive.

Which agreement fits your situation? Well, it depends. Typically, its best to reach an agreement early as possible. I know, I know - nothing says romance like a good prenup or cohabitation discussion. Am I right? Even so, an agreement while both parties are still amicable, are the easiest and least expensive. There's more agreeing, and less fighting. Plus it gives you both a degree of comfort and stability on the issue moving forward. Those are always good things.

Attempting to negotiate agreements after litigation ensues means litigation costs were already incurred, and a vindictive spouse can attempt to leverage the pet issue for purposes of negotiating a favorable settlement on other issues.

So get the pet issue resolved as early on as possible. Agree on something while you're both still happy; and reduce it to writing. Its a cheaper more predictable outcome in every situation.

The Confederate Flag Conundrum

Recently a young man who'd previously posed with a confederate flag carried out a vicious shooting attack on African American members of a Charleston area church. As a result, many politicians, companies, and citizens decided to ban the confederate flag; citing the flag as a divisive symbol of racism.

I carry no love for the notion of the confederacy, or its flag. In fact, I was surprised to learn it is/was flown at many state capitals/monuments across the south. I'm also vigorously opposed to the notion of discrimination or racism, on any level. Hate is a terrible thing. However, the flag controversy is a very slippery slope. 

1) The first amendment makes it unconstitutional for any state actor to ban or inhibit speech based solely on its content. Hate speech is even protected, for the most part. While the first amendment clearly doesn't apply, due to the outcry being from individuals, I think the values of free speech should still apply. 

Its dangerous social precedent to ban speech/symbol, based solely on content. Maybe this time, you're on the popular side of the issue. But what happens when you're not? What happens when society wants to silence you, based on what you're saying? Because this starts a slippery slope. Whats next to be banned because people don't approve? Our society thrives on the concept of free flowing ideas. Not only the ones we agree with. 

2) History is history. The good, the bad, and the ugly. The flag was a symbol of seceding states (which, frankly, I'm surprised doesn't offend people) and used by racists only in the past few decades. Even though its often seen as a symbol of hate, its still history.

Our nation's history definitely has its warts. From the awful acts of slavery, to the trail of tears, to the internment of Japanese-Americans during WWII. We cant afford to forget history just because its bad. In fact, one might argue this type of history is MOST important. 

George Santayana correctly stated the famous line: "Those who do not remember the past are condemned to repeat it." Yes its awful. Yes people get emotional, upset, angry, etc; and I understand why. But by learning about the ugly parts of history, we can be better situated to not repeat these mistakes. This is even more true for the monuments, and historic sites; which politicians are now clamoring to ban.

If you're fighting for this flag because it represents your racist view fueled by hate, then you're the problem. Even so, I think its a dangerous precedent and a very slippery slope when we begin censoring people and editing history; just because we don't like what they say.

Social Media: A Blessing and a Curse

Recently I read an article discussing the difficulties of maintaining a marriage. A key issue discussed was the impact of social media on relationships. It struck me as being extremely accurate. But it also made me look beyond relationships, and consider the impact of social media on our lives in general.

Social media is both a wonderful benefit, and an incredible burden. Its removed the humanity, from being human. We can digitally connect with anyone in the world, yet we've stopped personally connecting altogether. Wonder how your old friend from high school is doing? In the past you'd call them up, have lunch, etc. Now, just check Facebook.

We're always accessible anywhere, anytime; especially if you're a small business owner. I LOVE the fact my clients/prospective clients can contact me anywhere, anytime using Facebook. My clients will agree. I'm always accessible through social media, and its often times the most efficient way to communicate. My clients' phone numbers may change, but their Facebook stays the same. However some people really struggle with having to "always be on". While I appreciate the business aspect of it, I somewhat struggle with it in my personal life.

It destroys our self esteem. I've seen a quote floating around that says "don't compare your 'behind the scenes' with other people's 'highlight reel'". Incredible observation. We're all guilty of it; both ways.

If someone looks at my Facebook/Instagram; it probably gives the appearance of a world traveler. While I've certainly traveled, this couldn't be further from the truth. I post pictures of nice meals at nice restaurants; but I leave out pictures of times I've eaten from the dollar menu at McDonald's, or eaten a turkey sandwich at home because I'm short on money. We're all guilty.

The other side of that coin is we're all guilty of comparing everyone's social media highlights to our real lives. We look at pictures others' cars, travels, homes, etc. and think: "boy, I wish I was that financially successful".

We look at marriages/relationships and think: "I wish my marriage/relationship was that perfect". I call that the "Wheel of Fortune relationship". When Pat Sajak asks the contestants about their life, they always say "I have a wonderful wife/husband". We know that's not always true. 

In reality, we're all basically in the same boat. We all have our ups and downs. We all struggle. We've all held our breath, and hoped our debit card wouldn't be rejected at the grocery store.

We've all had rocky times in relationships. But no one posts THOSE pictures or statuses. I'm still waiting on the first contestant to say, "I have a husband; and he's gained alot of weight. But he's still OK; I guess." Or "I have a husband, but he won't work or help me with the kids. He sucks."

We all know these things to be true. So why let it effect us in such a way?

My goal for the past few months has been less social media interaction and more personal interaction. Lets put down our phones, log off Facebook, Twitter, etc; and start paying attention to the person across from us, to the people in the room with us, and to the experience we're having. We don't really need a Snapstory of your entire night out; and neither do you. You don't have to Periscope/Meerkat everything. Just enjoy the moment. The memory is far more valuable than the amount of likes it brings on Instagram.

I've been trying, and truthfully, its not been easy. Anyone who knows me, knows I love Twitter as much as any material possession. So its a work in progress. Still, I'm working to return to the days where human interaction was a major part of being human. Where social media was a great tool, rather than a giant crutch. Where we don't feel the need to portray ourselves as better than we are. Where we aren't always "on". Where we can enjoy an event or experience without making the entire night a Snapstory. Where life isn't reduced to the number of "likes".

The Straight Answer about Gay Marriage

Unless you live under a rock, you know gay marriage is today's hot button issue. A few lawsuits are pending at the US Supreme Court which will decide the issue.

Basically, Plaintiffs allege denial equal protection law because of discrimination based on sexual preference. Meanwhile, states claim they are allowed to enact legislation governing who may marry.

These cases reached the 6th circuit, which upheld the bans on gay marriage. Now it rests in the hands of the US Supreme Court.

That's the current legal situation. You could read that anywhere. I'm interested in the current public opinion.

Most know I drafted the Fairness Ordinance for the City of Vicco, which made national headlines. Most also know I'm a straight man in favor of gay marriage. So people often engage me in debate/discussion about gay marriage. In the end, people almost always find they don't oppose the legal concept of gay marriage.

Almost every objection to gay marriage is based on religious or moral concerns. But really that doesn't matter in terms of equal treatment under the law.

Most everyone agrees throwing someone out of a restaurant based on their sexual orientation, gay or straight, would be wrong. In fact, many people think that's already illegal; although its generally not. People almost always see the issue with this scenario; and why it isn't fair.

Apply that to marriage. Its the same scenario. Certain states, including Kentucky, refuse to issue marriage licenses to certain people; based solely on sexual orientation. This is inherently wrong, just like the restaurant example.

Once opponents realize there is a separation between the religious/moral objection and the legal objection; they gain clarity. Maybe they don't become proponents of gay marriage. But they stop being opponents; which is a huge step.

"Stingray" devices: Are your rights being violated?

The Washington Post has a very informative article discussing new "stingray" devices used by law enforcement (http://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html).

Basically a stingray mimics a cell phone tower. It tricks YOUR cell phone into thinking it's connecting to the tower. Instead, your phone actually connects to a device that can take whatever information from your phone they want. It can also be used to track your location. It all happens without your knowledge.

The picture is from the article,  and is a great illustration of how the stingray works.

To date, Im not aware of any reported rulings one way or the other regarding 4th amendment or other constitutional issues surrounding stingrays. For now, the issue appears to be undecided.

Eastern Kentucky: Modern Day Parable.

Over the past week, life in Kentucky, and most specifically Eastern Kentucky, has been especially difficult. Massive snow, impassable roads (some still impassable, even a week later), water outages, power outages, grocery shortages, floods, ice, etc. It made me recall an article published in June of 2014 by the New York Times which labeled Clay County, Kentucky as the toughest place to live in the US (http://www.nytimes.com/2014/06/26/upshot/where-are-the-hardest-places-to-live-in-the-us.html?_r=0&abt=0002&abg=0). I still disagree with the article, but it feels awfully accurate at the given moment.

Of course the weather is beyond anyone's control. Yet the secondary effects (ie the water, power, and roads) are within a reasonable amount of control by federal/state/local leaders. The amount of water outages that go on across the region are inexcusable. The 10 years I had my practice in Hazard, seemingly one in every ten days the city was under a "boil water advisory". Not long ago residents of Hindman, Kentucky went an extended period of time without water. Even worse? Parts of Eastern Kentucky still await public water/sewage. It's 2015. This just is not acceptable. 

What can be done? Who can help? Enter: SOAR (Shaping Our Appalachian Region). SOAR is a political creation that burst onto the scene just following the economic collapse of the coal industry in Eastern Kentucky; and was a welcome sign of hope. For reasons described above, one would naturally assume infrastructure would be the primary, and immediate goal. Wrong. Their first announced target was high speed internet, in an attempt to draw companies to the area.

This prompted memories of Sunday school class, and the parable of the wise and foolish builders. Essentially one built on a foundation of rock, so his structure was sturdy. The other built on a foundation of sand, so everything he built thereafter was weak. The gist: one must build on a solid foundation. While some readers may reject biblical concepts, surely this lesson is one we can all accept as logically sound.

Another application is Occam's Razor. A shortened explanation of Occam's Razor states "the simplest answer is often correct". It was conceived sometime between 1287-1347 AD. Both the parable and the Razor are as true today as they were 1000+ years ago.

Then why address internet before infrastructure? So residents of Eastern Kentucky can read online about places with dependable water and electricity?  How can one access the internet during the all too frequent power outages? Sure, companies may be interested in high speed internet. But companies won't relocate to an area lacking dependable water, sewage, and electricity. Furthermore, these infrastructure issues MUST be dealt with soon, especially some of the aging water lines, before they completely collapse. So why not now while grant money flows in? It defies logic.

No need to ignore concepts proven true over the course of 1000+ years. Take the simple answer - re-build the foundation of the region. It isn't as catchy as high speed internet; but its a much bigger need. Otherwise, everything else you build on the current shaky foundation will just come tumbling down.

What Happens with Lloyd Tubman?

There's been much discussion regarding the recent Lloyd Tubman news. There are two related, yet mostly separate issues in regards to Tubman and UK:

1) Legal - Tubman was presented to the grand jury (Id be interested in seeing a transcript, as Im guessing it was a softball presentation) and the grand jury reported No True Bill. This means the grand jury didn't believe probable cause exists to believe the crime was committed. Further, the prosecution stated they would not present this case again. It is not a declaration of innocence; but its the closest thing.

The victim appears to be sticking to her story, which is smart IF she testified at the grand jury; otherwise face perjury if she later changes her story. She can not appeal. However, there is no statute of limitations for felonies; so Tubman could be presented again at any time should a prosecutor so choose. Very unlikely, unless new information surfaces.

Ive tried multiple serious, serious rape cases. The law presumes innocence. However make no mistake - for these types of cases, Defendants are usually viewed as guilty until proven innocent. These are very emotionally and politically charged cases, which make them potential nightmares for any elected prosecutor. Ive seen prosecutors hammered in the press and/or election ads for dismissing rape cases that should have been dismissed.

2) UK's PR issues - Tubman wasn't fully cleared, but seems he wont be prosecuted. However there are potential PR landmines with this case. In the court of public opinion, anyone accused of rape is considered guilty; period. Don't believe me? Look at Bill Cosby (an example for the media treatment of these cases, not a comparison of facts in the case).

Media comes down so fast and hard on these cases, UK had no choice but to suspend Tubman immediately. No "we'll wait on the investigation", etc. Just an immediate, indefinite suspension. For comparison look at the Barker, Baker, Dubose situation. That's the difference in a rape allegation and an assault allegation.

Where does UK go from here? I think Tubman can come back, if his academics, etc are in order. I think there will be a minor, short term social media outcry. Maybe. But nothing major. I think the real question is: does Tubman want to come back? If so, is there anything else preventing him from re-joining the team (ie academics, out of shape, no longer wants to pursue football, etc)?

US and the solution to the involvement in the Middle East...

Unless you've been living under a rock, you know the US began a bombing campaign against ISIS. History proves this isn't a valid solution. There's been fighting in the middle east since biblical times. This suggests there will always be war in that region.

The US has two options: active involvement or no involvement. Recent history proves active involvement does not work. In fact, it only strengthens radical Islamic factions.

In combating radical Islam, the US is battling an individual or a group of individuals. Its a battle against an ideal itself. That's why killing militant leaders do nothing to stop the movement. In fact, it strengthens the ideal by making the leaders martyrs and kindles more hatred for America. The only REAL way active involvement ends in victory is by completely eradicating every single combatant. We all know this is neither practical nor acceptable, as it amounts to practical genocide.

Withdrawing all involvement seems it would be ineffective. Yet its really the only solution. Firstly active involvement simply doesn't work, as discussed above. There will be fighting whether we're involved or not. Secondly by withdrawing, we stop turning their leaders into martyrs, we stop kindling hate for America, and we stop giving their leaders a platform from which to broadcast their ideals.

Finally, we remove the inevitable collateral damage that occurs in the form of innocent lives and property. This inevitable collateral damage makes it easier for radical leaders to recruit new members to their cause.

Saving Eastern Kentucky.....The End of the Road

Time for the final installment of my series. In previous posts, I've discussed my ideas for re-shaping Eastern Kentucky. In short, they involve embracing our culture, focusing on hospitality industry (food, alcohol, and tourism), and spending our money at home.

It wont be easy. It will take time. There will be growing pains. Its also likely the region will experience a very distinct shift in the population. Some, like me, must leave. Its inevitable based on the shifting economy. People like me need be replaced with artisans, chefs, etc. People like Abigail Tolliver (who co-manages the Letcher County farmers' market); Kim Owsley (a talented Native American artists and musician); and Tim Crager (who operates a unique wood carving business) will thrive in a hospitality based economy.

It won't be easy. Teamwork is a must. There needs to be a regional coalition formed by tiny counties that will give them greater cooperation in pursuing opportunities where they present themselves.

Its the same in the hospitality industry. Although counterintuitive, the type of tourism I outlined in Part 1 works for EKY with a regional, synergistic approach where all counties, provide different yet similar options. This provides a multitude of choices that attract visitors. Tourists will not drive to Eastern Kentucky to visit just one restaurant, or just one attraction. However multiple restaurants, wineries, distilleries in the area become a reason to come spend a weekend (for a good example look at Huber's Orchard/winery just outside of Louisville). Like I mentioned in my last post, this is exactly what cities like Louisville, Chattanooga, and Asheville have used to fuel their resurgence.

If Eastern Kentucky can get through the next 1-3 years using a growing hospitality economy, and buying local; the area can then focus on reversing the population trend.  At the same time, the new hospitality based environment creates a very attractive market for a small/medium sized business to locate.

On December 12, 2013 I had the opportunity to hear Texas Roadhouse CFO Scott Colosi speak. At the end of the impressive discussion, Mr. Colosi took questions. One of the great questions was: why locate a business headquarters in Louisville? Mr. Colosi explained that when examining the options, the company knew it could attract top talent only if the headquarters was in a location that had food, drink, entertainment, and culture. Why? Because these are what makes a desirable place to live; and therefore easier to attract top talent.

This brings us full circle: taking advantage of what the area has and what its residents can do. Food, drink, and tourism will not only keep the area alive - it gives the area a real chance of rebuilding. For decades, outsiders traveled to the mountains to marvel at our way of life: the music, the food, the wine/moonshine, and the craftsmanship brought to life by the hands of its people. They'll come again. Then IF we give them reason; they'll keep coming.

Moving forward doesn't always require becoming more modern. Sometimes it means remembering our history. In the end, the answer was always there; right from the beginning. In order to save ourselves, we just have to be ourselves. Easier said than done.

Saving Eastern Kentucky.....Part 4 "Buy Local"

After looking at some of the government intervention that can help; lets look at what WE can do.

"Buy Local". Its not just a catchy phrase. Its a concept; and it works.

Why does buy local work? One reason it works is because the world is growing smaller; in its own way. In 1990's/2000's there was a socioeconomic-geographical movement called "Californization". Californization was a label given to the incredible amount of urban sprawl that started in California, and moved nationwide. Its where businesses, and consumers, moved from downtowns to the outskirts/suburbs. Big box stores like Walmart, Applebees, etc all exploded in growth. Small, local businesses wilted and died.

Today, the nation is contracting back to downtowns. In fact, in many developers are scrambling to construct urban residential properties. Higher gas prices combined with infuriating drive times play a large role. This movement back towards  is being called "manhattanization" and its clearly taking place all over the country.

What is buy local? The concept is simple: buying local. Stop spending money at "big box" stores, like Walmart and Applebees. Yes, I know Applebees is tricky because its a chain but has several units owned by Perry Countians (who are very successful business people).

Stop driving to Lexington, Huntington, or Johnson City for food, entertainment, and shopping. Remember, we're trying to pull revenue into Eastern Kentucky. This starts by spending money at home. Think of it as a financial circle. An investment in the region.

On the consumer end, its about spending a little more money in return for a MUCH better product. creating and shopping at local farmers markets or organic markets/butchers. Eating at restaurants who use a "farm to table" approach.  Purchasing craft beer from local brewers and moonshine from local distilleries (both these are a little ways out; but not as far as one might think). Buying from local artisans rather than big box stores.

In the end, its about showing entrepreneurs you're willing to spend your money with them; if they will use local vendors.  Many people are hesitant initially, because of the slightly higher costs. However once they experience the far superior quality and see the reinvestment into the community; the concept quickly catches fire.

On the Entrepreneur side, its a little different. Its a leap of faith. If an entrepreneur decides to open a restaurant, his research will show there's a much greater chance of success if they pay a large sum of money and purchase a franchise. In fact, who could blame a business owner for this decision? Especially without research showing the region will "buy local". In fact, I would guess Eastern Kentucky consumers spend very little money with local vendors.

However once opened, and "buy local" starts working FOR your business; make sure your business starts working for "buy local". Don't buy food services from gigantic companies like Sysco. Don't pay exorbitant franchise fees to corporations who's money will never make its way back to Eastern Kentucky. True, it'll cost a little more per unit, but the money will come back to you through the community.

Growth of downtown areas in cities like Louisville, Asheville, Chattanooga, and Cincinnati are all showing incredible growth in restaurant and hospitality; mostly based on buy local. All are cities within about 3 hours away from our region. All have elements of their revitalization that Eastern Kentucky could use to aid in our revitalization. All will be examined in a greater detail later.

Hospitality is just the start. Once buy local becomes a movement, it spreads to other things. Local designers start opening clothing boutiques. Local artists open art galleries. There are tons of talented designers, artists, and musicians in the region. Unfortunately right now, they all ply their trade elsewhere because there simply isn't a market in Eastern Kentucky.

All of this makes Eastern Kentucky a better place to live. An easier place to attract visitors. And ultimately an easier place to attract small/medium size employers. A more attractive place for small/medium sized businesses (which Ill cover later). All necessary for the survival, and resurgence of Eastern Kentucky.

The Ultimate Drivers Exam

I'm convinced. If you can drive in the parking lot of any EKY walmart - you can drive anywhere. ANYWHERE.

Crackheads. Old people. Ancient people (on scooters or in cars). Along with the general person who has no concept of what's going on around them.

All these people trying to navigate a parking lot while obeying virtually none of the existing traffic laws. Noone understands the working of a 4 way stop. Crosswalks become a game of "chicken"; pitting human vs car.

Its total mayhem.

Music Festival Dos and Donts

Not all bellies are made for belly shirts.

Don't do VIP. Part of the experience is being apart of the crowd. Not apart from it.

Unless you're taking pics/video; put down your phone.

If you answer a non emergency phone call, the person on the other end should reach through the phone and throat punch you because there's no way either of you hears any part of the conversation.

If you're wearing ear plugs -why are you here?

Don't pass out. Sadly, this must be stated.

If you're wearing jeans and/or a dress shirt - you're trying WAY too hard.

Just because you can get it on doesn't mean it fits. Know your limits.

On women - the less body hair; the better. I'm told its the opposite on men.

However, apparently, the more facial hair; the better. This does not apply to women.

You're a hipster. We get it. No need to beat us over the head with it. And I don't think there's a prize for the "biggest hipster at the music festival". Although I could easily be wrong.

Wear whatever you want.

Do whatever you want.

Have fun at all costs.

 

Saving Eastern Kentucky.....Part 3B

I planned to discuss all legislative actions that could help save Eastern Kentucky in one post. Then I quickly realized the wet/dry issue would require so much detail and discussion, that anything else would get lost in the mix.

The innovation and creativity of the Appalachian people will be the catalyst behind revitalizing Eastern Kentucky. Government help isn't a requirement; but could definitely make the process MUCH easier.

To fully realize the roughly outlined tourism plan, Eastern Kentucky must attract new entrepreneurs and a work force skilled in hospitality (jobs dealing with recreation, food, tourism, etc).

How can Eastern Kentucky find new entrepreneurs? The best way is for federal, state, and local governments to give financial incentives to prospective entrepreneurs in return for opening hospitality/tourism based businesses in Eastern Kentucky. In other words, "money talks".

The federal government could provide incentives through the Small Business Administration (SBA). The SBA doesn't make loans themselves. Banks (hopefully local banks. Remember: "buy local") loan the money. The SBA simply guarantees should the business default, the federal government will cover the default; reducing the bank's risk.

As one might imagine, there are some fairly cumbersome guidelines to qualify. These guidelines should be relaxed and the amount of monies available increased for anyone planning to open a hospitality/tourism business in Eastern Kentucky. Banks could loan more, at a reduced risk. This in turn makes it easier for prospective business owners to bet on themselves and Eastern Kentucky.

The state government could relax state income tax on limited liability organizations for businesses operating in Eastern Kentucky. The federal government, along with nearly all states, allow "flow through" limited liability entities to operate without taxation of the entity itself. This is done to avoid double taxation, because the payments from the entity to the owners are taxed too. Kentucky is one of the few states who have an oppressive and ridiculous state income tax on limited liability organizations. This could be forgiven for the first few years for any business opening/operating in Eastern Kentucky.

Finally several creative local tax strategies/incentives that could be in place to encourage the location/relocation of hospitality/tourism business in Eastern Kentucky versus other parts of the state/country. Property tax, local employment tax, etc. could all be forgiven, delayed, or otherwise reduced.

These would make Eastern Kentucky an attractive location for outside and local entrepreneurs to open new hospitality/tourism business.

In addition to talented business owners, the region needs skilled employees. What would talented businesses be without skilled employees? The best way to hone a workforce for the skills needed in hospitality/tourism is through training and education. Training and education could be obtained at local institutions with a track record of results. Several in state institutions offer associates, bachelors, and masters in business. There are recreation degrees. And there are culinary schools in Louisville turning out incredible chefs.

The problem? Education and training costs money. Sometimes a lot of money. The solution? Student loan or subsidized tuition incentives. Federal student loans could be forgiven or offered forbearance in return for being employed in the Eastern Kentucky region. Furthermore the federal and/or state government could subsidize tuition for any prospective student from Eastern Kentucky that commits to the region for a period of time.

These economic incentives make Eastern Kentucky an attractive location for prospective business owners. Furthermore they ensure these same business owners will have a talented and skilled workforce from which to staff their business.

Saving Eastern Kentucky.....Part 3A

The next two installments discuss legislative moves that will help fuel Eastern Kentucky's revival. While a complete revival doesn't necessarily require help from the government. There are definitely several things local/state/federal government could do to aid the revival. 

Up first is a change that must happen socially, then at the polls - the wet/dry issue. Most counties in Kentucky are dry (click the link for a map). To spark growth in tourism, this MUST change.
 https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh1Ejtf86mE9DdugWsss9vgBpf2kigYQfAQ1WNSRwYdv2Dypx8VWqcRMY3EtezzBJLQ2a51orVeeYO0RnMNh8EHOsZqpO45Hrs_79R1scRtBtd1PJUCrizYNArUv226KPwhpRbpz9ghI3A/s1600/Wet+Dry+Counties+in+Kentucky.JPG

If you have religious/moral convictions about the issue, think about this: Being dry doesn't stop drinking. It stops potential revenue, which stops growth/development opportunities, which stops the revitalization of our region. Its a financial decision.

Since the invention of the modern automobile, anyone in a dry county who wants to drink; will. They just go to a nearby county/city taking their potential revenue with them. It doesn't promote underage drinking. There are restrictions that come with the relevant ABC licenses and heavy fines associated with serving underage. The same cant be said for bootleggers. So if you oppose being wet for moral reasons, its really not making an impact.

It doesn't cause an increase in DUI related accidents. That's an argument unsupported by facts. Logic suggests residents in a dry county drive further to get a drink, therefore putting them on the road longer; increasing the chances of an accident. Furthermore drinking and driving are already illegal. So anyone making the conscious decision to break the law, it really has nothing to do with county/city lines.

Let's talk money. Restaurants are extremely hesitant to open in dry counties, and for good reason. Alcohol has a high profit margin. Probably the highest. If given the choice, why would a new restaurant open in a dry county? They wouldn't. Its why cities like Prestonsburg, Pikeville, and Whitesburg all show some growth in the entertainment/restaurant sector; while dry counties/cities are stagnant.

Whitesburg is an excellent case study in favor of the wet vote, because it voted wet only a few years ago. Whitesburg voted "moist" in 2007 and wet in 2012. The direct financial impact is incredible. Speaking with Eleanor Caudill, who is the city ABC administrator, stated that going wet generates approximately $120,000 for the city. Per Kentucky law, these funds can be used ONLY to pay for administration and law enforcement. However this still clears up funds from the general budget to be used for other matters.

The indirect financial impact has been just as incredible. Whitesburg added two very busy restaurants/music venues. They've added an active farmers market, which I will discuss in a later post. These additions increase revenue, build a sense of community, and promote a "buy local" culture; which Ill also discuss later. All in all, it makes Whitesburg a place that people want to visit.

If going wet for a tiny town the size of Whitesburg makes $120,000 direct impact, think of what it could do for a dry county. Or the region as a whole.

One might ask: if nearby counties are wet, why should MY county be wet? Being wet is absolutely crucial for food/drink tourism that will focus on Appalachian moonshine distilleries, wineries, and craft beer. Ill outline all these later in more detail. For now, just know these businesses will work alongside adventure related excursions to create the "pull" that makes people want to visit. The more options, the greater the pull. Noone will drive to Eastern Kentucky to visit a lone restaurant.

If counties won't vote wet, then cities need to. If cities wont, then communities need to incorporate into new cities and vote wet. The importance of this issue truly cant be overstated. Without it, Eastern Kentucky's future looks extremely bleak.