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Sheriff's Report

January 24th, 2021 2:41am - Posted By: Mark Cohen

Sheriff's Report - April 26, 2053

Reporting Deputy: Kim Jones

Deputies were dispatched early this morning to a remote location west of Left Hand Reservoir after hikers reported a dead body. 

After grabbing some donuts in Nederland, Deputy Smith and I arrived on scene at 0835 and observed a 1967 Oldsmobile Vista Cruiser station wagon with a "F*&$%ck Trump" bumper sticker on it and expired plates. 

After walking to the west of side of the reservoir, we identified an odor best described as a combination of cheap whiskey, bitterness, and jock itch.  We then observed what appeared to be an elderly, deceased white male beneath some pine trees.  The body was covered with abrasions, puncture wounds, and scratches.  Further investigation revealed the corpse was dead. 

Deputy Smith retrieved the deceased's wallet from his jacket and found an expired driver's license issued to Mark Cohen (DOB 5/21/58).  The license had expired eight years ago. Except for the abrasions, puncture wounds, and scratches, the photo on the driver's license appeared to be a photo of the deceased. 

I searched the deceased's pockets and prepared an inventory: 

            1. Wallet with $8.32 in it and seventeen credit cards, along with some business cards identifying the deceased as the Consul General of the Democratic People's Republic of Korea.

            2. Set of car keys, including a key to the aforementioned Oldsmobile.

            3. Small plastic container of edibles purporting to be a strawberry margarita flavored, fast acting variety, each gummy containing 10 mg of THC and 10 mg of CBD.

            4. 1 battery power hair clippers

            5. Three XXL condoms (ribbed).

Deputy Smith and I then reconnoitered the area to look for signs of foul play.  I then heard Deputy Smith shout, "Holy Mary mother of freaking God in a chicken basket," or words to that effect.  I ran to Deputy Smith's location and observed what appeared to be an adult deceased male bear weighing approximately six hundred pounds. There were six half-eaten edibles beside the bear. The bear's body was covered with abrasions, puncture wounds, and scratches. Further investigation confirmed the bear was dead. 

It appeared Cohen, having consumed an unknown quantity of edibles, had attempted to use the aforementioned hair clippers to carve "F*&$%ck Trump" into the bear's torso, and a fight had ensued.  Deputy Smith phoned the Division of Wildlife regarding the deceased bear.  We loaded Cohen's body into a standard body bag, then returned to Nederland for more donuts. 

Status: Case closed. Nobody was alive to charge with a crime.  The fight was a draw.

           

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Should Businesses Provide Contracts in Other Languages for Customers that Do Not Speak English?

January 8th, 2021 2:42pm - Posted By: Mark Cohen

Businesses sometimes ask whether they should translate their contracts into other languages for customers that don’t speak English.  I appreciate the desire to help customers understand legal documents, but I believe providing contracts in other languages is unwise.

One fundamental principle of contract law is that one who signs a contract is presumed to have read it, understood it, and agreed to its terms. It is well-settled that a mentally competent person who signs a contract must be held to have known what words were used in the contract and to have known their meaning, and must be held to have known and fully comprehended the contract's legal effect. Delfingen US-Tex., L.P. v. Valenzuela, 407 S.W.3d 791, 801 (Tex. App. 2013).

While this may seem harsh, any other rule would wreak havoc on the legal system.  Without this rule, litigants would bombard courts with lawsuits seeking to invalidate contractual obligations based on claims that one party did not read or understand the contract.

The courts have applied this rule even when the person seeking to avoid the contract does not speak English. Chen v. New Trend Apparel, Inc., 8 F.Supp.3d 406 (S.D.N.Y. 2014); Morales v. Sun Constructors, Inc.,541 F.3d 218, 222 (3d Cir. 2008)(“In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.”); Tamez v S.W. Motor Transport, Inc., 155 S.W.3d 564, 570 (Tex. App. 2004); Vera v. N. Star Dodge Sales, Inc., 989 S.W.2d 13, 17–18 (Tex. App. 1998); In re Ledet, No. 04-04-00411-CV, 2004 WL 2945699, at *5 (Tex. App. 2004) (“Whether a party is illiterate or incapable of understanding English is not a defense to a contract.”); Fried for Use of Berger Supply Co. v. Feola,129 F.Supp. 699 (W.D.Pa.1954)(Difficulty understanding English does not render contract unenforceable).

If a business chooses to translate its contracts into another language, it assumes a duty to make certain the translation is accurate.  Hialeah Automotive, LLC v. Basulto, 922 So.3d 586 (Fla. App. 2009).  So, in addition to the risk of being sued by a customer claiming breach of contract, that business also assumes the risk of being accused of not providing an accurate translation and losing the benefit of the contractual provisions intended to protect that business.

Another possible problem if a business attempts to provide a foreign language version of a contract is that the meaning in the foreign language document may differ from the meaning in the English document.  The question then becomes which document controls. There could also be litigation and a “battle of experts,” with different experts opining on the meaning of the foreign language term.  See, for example,Ramos v. Westlake Services LLC, 195 Cal.Rprt.3d 34 (Calif. App. 2015).

For these reasons, I believe businesses should not provide translated versions of their contracts to potential customers unless the law requires it.  However, if a business has strong feelings on this issue, rather than translate a contract into another language, I recommend the business include something like this in the contract in English and in the other relevant language:

IF YOU DO NOT SPEAK OR UNDERSTAND ENGLISH, YOU SHOULD HAVE A QUALIFIED EXPERT TRANSLATE THIS AGREEMENT FOR YOU BEFORE YOU SIGN IT.  IT IS YOUR DUTY TO MAKE CERTAIN THE TRANSLATION IS ACCURATE.  IF THERE IS A CONFLICT BETWEEN THIS AGREEMENT AND THE TRANSLATION, THIS AGREEMENT WILL GOVERN.    If you have any questions, please contact me at mark@cohenslaw.com

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Identifying and Dealing with Opposing Counsel that are LFOP

January 2nd, 2021 5:26pm - Posted By: Mark Cohen

IDENTIFYING AND DEALING WITH OPPOSING COUNSEL THAT ARE LFOP

If you prefer to read this in a PDF format, CLICK HERE.

The law -- at least the litigation side of it -- is an adversarial profession.  Disagreement comes with the territory.  Still, I like most opposing counsel I work with.  A few, though, are full of poop.  If you are dealing with a lawyer full of poop (LFOP), it's nice to know it from the start.  This screed summarizes some indicators that opposing counsel may be an LFOP and suggests ways to deal with them. 

1. The first communication from opposing counsel is a request for a lengthy extension of time to answer.

Yes, there are times when a client receives a summons and delays hiring counsel until the last minute.  In such cases, opposing counsel may legitimately request an extension of time to answer.  But those cases are rare, and that is unlikely to be the case if the defendant is an entity with in-house counsel or a standing relationship with a firm.  Such a request may be, but is not necessarily, a sign that opposing counsel's strategy will be to delay, delay, delay.

I will always agree to a request for a seven- or ten-day extension because I may want opposing counsel to return the favor later and because I know the judge will grant the extension over my objection anyhow, but when opposing counsel requests a thirty-day extension, that may be you first indicator that opposing counsel is a LFOP.

            Cohen's first law of LFOP:

The longer the requested extension, the more likely it is that when opposing counsel finally files a response it will be a baseless motion to dismiss rather than an answer to the complaint.  Probably a motion alleging your thirty-page complaint, complete with ten attachments, doesn't contain sufficient factual allegations to meet the Twombly/Iqbal plausibility standard.

2. Opposing counsel's answer lists inapplicable boilerplate affirmative defenses.

Many lawyers, particularly those in insurance defense firms, include a boilerplate list of affirmative defenses in every answer they file.  I have even seen lawyers list contributory negligence as a defense in a breach of contract case.  Including a defense where there is no factual basis for it clearly violates Rule 11. Gargin v. Morrell, 133 F.R.D. 504 (E.D. Mich. 1991).  But it is common, and most judges allow lawyers to get away with it "because everyone does it" or "that is how it has always been done."  Some state court judges did the same thing before being elevated to the bench, so filing a motion for sanctions may be a waste of time. 

There is now a split of authority on whether Twombly/Iqbal standard applies to affirmative defenses, but at least one federal circuit has held that it does. GEOMC Co., Ltd. v. Calmare  Therpeutics Incorporated, 918 F.3d 92 (2nd Cir. 2019).  Even if it does not apply, an affirmative defense must be stated to give notice to a claimant, who can then use the discovery process to investigate more fully the factual basis supporting the defense.  United States Welding, Inc. v. Tecsys, Inc., No. 14-cv-00778-REB-MEH, 2015 WL 3542702, at *2 (D. Colo. June 4, 2015).  Thus, a motion to strike may be appropriate, but it may not get you far because the judge may rule that you can use the discovery process to ascertain the basis for the defenses.

A better approach, I think, is to file a reply to affirmative defenses under Rule 7 to highlight the lack of specificity and show that opposing counsel put little thought into their answer.  Put differently, it's a way to show that court that opposing counsel is a LFOP.

In jurisdictions that require the parties to submit a proposed case management order, another approach is to include something like this in the proposed CMO:

"Defendant has listed an affirmative defense of failure to join an indispensable party without specifying the identity of the allegedly indispensable party.  Plaintiff asks the Court to order Defendant to specify the allegedly indispensable party within seven days."

3. Opposing counsel engages in extensive written discovery when most facts are undisputed and known to both parties. 

I believe written discovery is largely worthless.  Almost every request is met with a long list of boilerplate objections followed by equivocal weasel language written by opposing counsel.  Yes, some lawyers are legitimately concerned that if they don't engage in massive written discovery their client may later accuse them of malpractice, but in many cases they are just running up their bill and trying to impress their client with the massive volume of electronic paper they can generate. 

 In most cases both parties know the facts and many facts are undisputed.  Mandatory disclosure of documents required by Rule 26 should ensure that counsel for both parties have nearly all of the relevant documents.   I rarely engage in written discovery. The boilerplate objections and evasive responses almost always invite a motion to compel, but most state court judges don't want to be bothered with such disputes and you run the risk of being held responsible for the other party's attorney's fees if the judge gets it wrong. 

I much prefer depositions where I can ask the witness follow up questions and opposing counsel must be silent, except to make objections. 

4. Opposing counsel repeatedly makes speaking objections while defending a deposition.

F.R.C.P. 30(c)(2) (and its Colorado counterpart) provides:

An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

I always bring a copy of that rule to any deposition and have, at times, handed a copy to opposing counsel on the record and made it a deposition exhibit.

The best solution to this behavior is, after opposing counsel is done, to look at the witness and say, "Now that your lawyer has completed their objection, let me repeat the question…"

5. Opposing counsel objects to pattern interrogatories approved by your state's supreme court as "irrelevant, unduly burdensome, vague, and not reasonably calculated to lead to the discovery of admissible evidence."

I've seen it happen, and I've seen judges let opposing counsel get away with it.

6. Opposing counsel produces thousands of pages of documents in response to a Request for Production without any index and responds to the request with, "See documents produced herewith."

This is poop at its finest.  See, e.g., Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009), in which the court held that in responding to interrogatories by producing documents the party "must specify the documents from which the responses to the interrogatories can be derived in sufficient detail to enable the interrogating party to locate the documents as readily as the responding party could."  The court wrote, "It is not sufficient for a responding party to simply direct the interrogating party to a mass of business records.  The court noted that "when voluminous documents are produced under Rule 33(d), they must be accompanied by indices to guide the interrogating party to the responsive documents. Citing, O'Connor v. Boeing N. Am., Inc., 185 F.R.D. 272, 278 (C.D.Cal.1999).  The court held that the same rule applies to requests for production of documents. The court found that the defendant's production of more than 7,000 pages of documents was insufficient because they "were not accompanied by any indices or other tool to guide plaintiffs to the responsive documents" and wrote that "the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant's duty to sufficiently identify the location of the relevant documents."

7. Opposing counsel objects that discovery requests are "premature."

This is usually poop.  The rules require discovery responses within a specified period and specifically require litigants to supplement their responses when new information becomes available. 

Generally, a discovery request is premature only if served prior to the time allowed by the applicable rule.  Taylor v. Great Lakes Waste Servs., Not Reported in F.Supp.2d, 2007 WL 422036 (E.D. Mich. 2007).  An objection that a request is premature may also be appropriate when the request seeks to force a litigant to provide information prior to the deadline to do so.  For example, a request that asks for information about your expert's opinion prior to the deadline for your expert's report. McKellips v. Kumho  Tire Co., Inc., 305 F.R.D. 655 (D. Kan. 2015).

But in most cases the claim that a discovery request is premature is poop.

8. Opposing counsel objects to a request for production because the parties are already under a duty to disclose all relevant documents.

I know, it sounds like the dumbest objection ever made, but I have seen it.  Obviously, there would be no rule allowing requests for production if this argument had any validity.  Courts have universally rejected it. A litigant is "entitled to individualized, complete responses to each of the requests, as numbered and identified in the requests, accompanied by production of each of the documents responsive to the request, regardless of whether the documents have already been produced."  See, e.g., Louen v. Twedt, 236 F.R.D. 502 (E.D. Calif. 2006).  This objection is pure poop.

9. Opposing counsel claims no duty to produce documents because you already have them.

Courts have universally rejected this argument as well. See, e.g., Walt Disney Co. v. DeFabiis, 168 F.R.D. 281 (C.D. Cal. 1996)(Defendant's responses were insufficient and Defendant was "required to produce documents he has in his possession, custody or control, regardless of whether he believes plaintiff already has those documents."); Beydoun Foods, Inc. v. 7-Eleven, Inc., Not Reported in F.Supp.2d2013 WL 5515348 (E.D. Mich. 2013)(Court rejected argument that Defendant had no duty to produce documents it believed Plaintiff already possessed, and imposed sanctions); Beach Mart, Inc. v. L&L Wings, Inc., 302 F.R.D. 396 (E.D.N.C. 2014)("The rule is not that a requesting party in a case must go out and find responsive documents. Rather, the rule is that even where a requesting party already has documents in its possession, or could otherwise access those documents, the disclosing party may not withhold those documents…).

This objection is poop for another reason.  Opposing counsel has no way of knowing what documents you possess.  If opposing counsel has supernature powers and has used them ascertain what documents you possess, opposing counsel should at least provide an affidavit establishing the foundation for their supernatural powers and how they were used to ascertain what documents you possess.  See, C.R.C.P. 43(e).  

10. Opposing counsel repeatedly accuses you of unethical or unprofessional conduct.

Goebbels wrote, "Accuse the other side of that which you are guilty." 

11. Opposing counsel rarely responds to emails.

Some lawyers prefer phone calls to emails, and phone calls can be productive.  Some judges even require phone calls where the law imposes a duty to confer regarding a motion.  But a repeated refusal to put anything in writing despite requests for specific authority to justify a stated position often indicates opposing counsel knows there is no support for his/her position on an issue. 

12. Opposing counsel repeatedly claims to have not received emails.

It is certainly possible that an email you send to opposing counsel ends up in his/her spam or junk folder.  But such problems quickly come to light and are easily remedied.  When opposing counsel repeatedly claims to have not received emails, even though you have not received any automated "undeliverable" messages, your poop threat level should move from yellow to orange.  In some cases you may want to provide opposing counsel with an alternate email address if you have one and/or send emails that request a read response.

13. Opposing counsel never provides legal authority for any position.

Some lawyers take bold positions on issues, but never provide any authority to support those positions other than "Because our firm says so."  I always email opposing counsel an invitation to provide legal authority for their position so I can understand it.  If opposing counsel does not respond, I start to think I am dealing with a LFOP.

 14. Opposing counsel repeatedly takes snippets from emails and depositions, and incorporates them in motions and responses, out of context to give the court a false impression.

This may not always be an ethical violation, but courts find it irritating.  Robinson v. Gerritson, Not Reported in F.Supp.2d, 2002 WL 1052042 (N.D. Ill. 2002).  See also, Minch Family LLLP v. Buffalo-Red River Watershed District, Not Reported in Fed. Supp., 2009 WL 10700939 (D. Minn. 2009)(Court denied motion to amend supported only by "Affidavit which purports to interweave a rag-tag collection of snippetsfrom depositions, agency meetings, notations, jottings at Hearings or from witness interviews, and the like, so as to infuse that unlikely pot-pourri with foundation."

The remedy for this is simple.  Include the full email or other relevant portions of the deposition transcript in your response and paint opposing counsel as a lawyer that is intentionally misleading the court. 

Although conventional wisdom holds that a lawyer defending a deposition should ask few, if any, questions at a deposition, I make it a point to listen for witness answers that may be taken out of context and used against my client later, and I often ask the witness questions when it is my turn so I can use the witness' answers to my questions when the deposing attorney submits a snippet out of context.

I don't hesitate to ask leading questions either.  It's not my deposition, so I am cross-examining the witness and thus entitled to lead.  There is no requirement in F.R.E. 611 that dictates a party cross-examining a friendly witness is precluded from using leading questions. Giter v. U.S., Not Reported in F.Supp.2d2009 WL 4730551 (M.D. Fla. 2009).  It is well recognized that the Court may allow counsel to propound leading questions to his or her own witnesswhen such witness has been called as an adverse witness by opposing counsel. Stahl v. Sun Microsystems, Inc., 775 F.Supp 1397 (D. Colo. 1991).  See also, Alpha Display Paging, Inc. v Motorola Communications and Electronics, Inc., 867 F.2d 1168 (8th Cir. 1989)(District court did not abuse its discretion in allowing Motorola to use leading questions during the cross-examination of friendly witness); Morvant v. Construction Aggregates Corp., 570 F.2d 626 (6th Cir. 1978)(Not error for the trial court to permit the defense to use leading questions when cross-examining its own employees, who had been called by plaintiff on direct examination as part of her case-in-chief)

15. Opposing counsel repeatedly blames his/her staff.

Everyone makes mistakes.  Responsible lawyers own them.  If opposing counsel repeatedly blames his/her staff for missed deadlines, failure to return calls, undisclosed documents, etc., that's a poop indicator.

16. Opposing counsel sends you an email (or leaves you a VM) asking your position on an anticipated motion to satisfy his/her duty to confer, then files the motion ten minutes later informing the court that you did not respond to his/her request to confer.

When you receive such an email or voice message, if you don't have time to respond immediately, promptly reply (by email) that you will respond within 48 hours so you have a record of it you can attach to your response to the motion. 

Acknowledgment

I would like thank several firms for providing the inspiration for this article..           ...

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The Impact of Covid-19 on Commercial Contracts

May 17th, 2020 2:49pm - Posted By: Mark Cohen

The COVID-19 pandemic has caused many businesses to seek legal guidance concerning whether the crisis relieves them of their duty to perform contractual obligations.  Much of ensuing discussion has focused on force majeure clauses, but it is important to also consider the common law defenses of impossibility and frustration of purpose.

Force Majeure Clauses

A force majeure clause is a contract provision that excuses a party’s performance of its contractual obligations when circumstances beyond their control make performance commercially impracticable, illegal, or impossible. 

In general, a force majeure event must be an unforeseen event beyond the control of the parties, but the language of the contract may alter this. See, e.g., Perlman v. Pioneer Ltd. Partnership, 918 F.2d 1244 (5th. Cir. 1990). 

Changes in costs, market conditions, or taxes are generally not considered force majeure events.  See, e.g., Kyocera Corp. v. Hemlock Semiconductor, LLC, 886 N.W.2d 445 (Mich. Ct. App. 2015) (China‘s imposition of tariffs was not a Force Majeure event); Langham–Hill Petroleum, Inc. v. S. Fuels Co.,813 F.2d 1327 (4th Cir.1987)(rejecting claim for relief under force majeure where the government of Saudi Arabia acted to cause a collapse in world oil prices, making a contract unprofitable for one party); N. Ind. Pub. Serv. Co. v. Carbon County Coal Co.,799 F.2d 265 (7th Cir.1986)(holding that a government order denying a request from a utility to pass increased coal prices along to its customers did not excuse utility from a long-term contract to buy coal even though contract was unprofitable).

Not all force majeure clauses are the same.  Therefore, it is important to read the applicable clause with some specific questions in mind.

Is COVID-19 a Force Majeure Event?

Some force majeure clauses are broad and might refer to "any Act of God or other circumstance beyond the parties' control."  Others may list specific examples such as, “fires, floods, earthquakes, tsunamis, wars, terrorist attacks, strikes, civil unrest…"  Because each clause is unique, it's important to read the applicable clause carefully to determine whether the language clearly applies to the COVID-19 crisis. 

Does the Force Majeure Clause Excuse Performance or Merely Suspend It?

Some force majeure clauses excuse performance entirely while others merely suspend the requirement for performance until the unforeseen event no longer prevents performance.  Some force majeure clauses may carve out exceptions for duties such as the obligation to make payment, so it is important to look for any such exceptions.

Does the Force Majeure Clause Impose a Duty to Try to Respond to the Force Majeure Event?

A force majeure clause may impose on the parties a duty to try to take actions to mitigate or overcome the effect of the force majeure event.  It is important to determine whether such a duty exists and what steps, if any, a party might take to satisfy that duty.

Does the Force Majeure Clause Require That You Give Notice?

Many force majeure clauses require that a party desiring to excuse performance under the clause give written notice to the other party.  It's important to determine whether the clause requires notice and to provide any required notice in a timely manner and in the manner the contract requires. Any notice should track the language of the force majeure clause and include reference to any relevant specific events such as a government "Shelter at Home" order.  Any notice should also invoke the doctrines of commercial impracticability and/or frustration of purpose, if applicable.

Do Other Doctrines Apply?

Even if the COVID-19 crisis might not fall within the scope of a particular force majeure clause, two other common law contract defenses may apply. Those are commercial impracticability and frustration of purpose.

Commercial Impracticability or Impossibility

The common law contract defense of impossibility of performance is now often called commercial impracticability.  The Restatement (2d) of Contracts § 261 provides:

Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the nonoccurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.

Commercial impracticability is an affirmative defense.

Frustration of Purpose

 A party need not fulfill its obligations under a contract if an unforeseen event makes it impossible to achieve the purpose of the contract.  For example, if the purpose of an organization's contract with a hotel is secure space for a convention, and a travel ban prevents the attendees from attending the event, the doctrine of frustration of purpose may apply.  Frustration of purpose is also an affirmative defense.  Keep in mind that courts will seldom accept the argument that the "purpose" of a contract was for one party to make a profit. 

 

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The Proper Use of Animal References in Law

May 17th, 2020 2:42pm - Posted By: Mark Cohen

The Proper Use of Animal References in Law

Posted in: Humor

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The Common Law of the Gym

May 17th, 2020 2:41pm - Posted By: Mark Cohen

The Common Law of the Gym

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When to Use the Passive Voice

May 17th, 2020 2:38pm - Posted By: Mark Cohen

When to Use the Passive Voice

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Indemnification Provisions in Commercial Contracts

May 17th, 2020 2:36pm - Posted By: Mark Cohen

Indemnification Provisions in Commercial Contracts

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My Beach Baby Loves Lovin' Where My Rosemary Goes United We Stand Dat Ding

April 8th, 2019 8:33pm - Posted By: Mark Cohen

I have fond memories of many 1970's one hit wonders. My favorites include Love Grows Where My Rosemary Goes by Edison Lighthouse, My Baby Loves Lovin' by White Plains, Beach Baby by First Class, United We Stand by the Brotherhood of Man, and Gimme Dat Ding by the Pipkins.

But what you probably didn't know is that the lead singer for each of those groups was the same man - Tony Burrows.

Born in Great Britain in 1942, Burrows started his musical career as a member of the Kestrels. That group included Roger Greenaway and Roger Cook, who wrote Long Cool Woman in a Black Dress for the Hollies.

Burrows later joined the Ivy League, which became The Flower Pot Men, which included two founding members of Deep Purple. The Flower Pot Men reached # 4 on the U.K. charts in 1967 with Let's Go to San Francisco.

Burrows had his biggest hit in January of 1970 as the lead singer of Edison Lighthouse.  Love Grows Where My Rosemary Grows was a fast paced feel-good tune that hit # 1 on the U.K. charts and # 5 in the U.S. Burrows did not rest on that success.  He got back with The Flower Pot Men, they renamed the band White Plains, and had a hit with My Baby Loves Lovin' in March of 1970, when it reached # 13 on the U.S. charts.

That was a busy year for Burrows. He sang lead on United We Stand for the Brotherhood of Man, which peaked at # 13 on the U.S. charts in the Spring of 1970.

In April of 1970, Burrows and Greenaway formed the Pipkins. Burrows sang lead on Gimme Dat Ding, which reached # 9 on the U.S. Charts. (One of the songwriters was Albert Hammond, who later had a hit with It Never Rains in Southern California).

But Burrows was not done. In 1974, he sang lead on Beach Baby for the First Class, which reached # 4 in the U.S. Beach Baby was another feel-good tune that recalled the lost innocence of the era before Vietnam and Watergate.

Beach Baby was Burrow's last big hit, but he continued a successful career that included singing backups with musicians such as Tom Jones, Elton John, and Rod Stewart. He sang background vocals on Elton John's Tiny Dancer.

Tony Burrows remains the only vocalist to hit the U.S. Top 40 as the lead singer for five different groups. 

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My Right Mindset Routine

March 25th, 2019 12:51am - Posted By: Mark Cohen

CLICK HERE:

My Right Mindset Routine

If you can't see the entire PDF, email me at mark@cohenslaw.com and I will email the article to you.

Posted in: The Big Picture

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It don't come easy

March 16th, 2019 12:48am - Posted By: Mark Cohen

Click here for my video - It Do Come Easy: dontcomeeasy

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Taxation is Theft, and You is an Idiot

June 4th, 2018 1:41am - Posted By: Mark Cohen

Taxation is Theft, and You is an Idiot.

A popular libertarian slogan is "taxation is theft." This may be one of the dumbest statements ever made.

The way language works is that we use different words to denote different things. We have one word for "cat" and another for "white."  Because a cat and white two different concepts. This convention – using different words to denote different concepts – serves us well because it enables clear communication.

One problem with language is that people sometimes misuse the verb to be.  People say, “The cat is white” when they really mean something like, “The cat has white fur.”  It’s harmless in that instance, but one popular form of argument is to think of something bad – theft – and equate it to something else you don’t like – taxation – using the word is.

Let’s break it down. Theft is when I take something from you without any legal right with the intent to permanently deprive you of it.  For example, Section 18-4-401 of the Colorado Revised Statutes, provides in relevant part, “A person commits theft when he or she knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception…” (Emphasis added).  And before you get all pissy about the way I punctuated that, writing “(Emphasis added).” after a quotation, see the U.S. Supreme Court decision in Bob Jones University v. United States, 461 U.S. 574 (1983) where the U.S. Supreme Court did the same thing, with only that Rehnquist dissenting.

Taxation is when government requires you to pay money pursuant to the lawful authority granted to the government in the organizing document or laws passed by your elected representatives.

In the context of federal taxes in the United States, Article 1, Section 8, Clause 1 of the Constitution provides in relevant part, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…”  The Sixteenth Amendment provides, “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

So, while "taxation is theft" is catchy and simple, it is logically wrong, as are many simple "X is Y" statements.

Instead of simply asserting that taxation is theft, I recently challenged some libertarians to define both terms and explain why taxation is theft.  One libertarian friend took me up, but he’s a smart man and he saw my point, then attempted to go around it by asserting, “Taxation is legalized theft,” which gives new meaning to the term theft because using that line of thinking there are two types of theft – legal and illegal.Taxation is when the government of the jurisdiction that you live in, whether you like it or not, requires you to pay money pursuant to the lawful authority granted to the government in the organizing document or by laws passed by your elected representatives.

But libertarians are not shouting, “Taxation islegalized theft,” they are shouting, “Taxation is theft.”  And, sadly, in an age where conservatives loath knowledge and science, simple phrases appeal to people that lack the time or desire to consider complex issues. That’s why I purposely used “You is an idiot” in this essay’s title – to illustrate what happens when we use is to equate unrelated concepts.  Of course, not everyone that proclaims “taxation is theft” is an idiot.  Libertarianism is one concept and idiocy is a separate concept.  That’s why we have different words for them.

Finally, note I did not assert “taxation is theft” is THE dumbest statement ever made. That would probably be something like, “Hey, I think we should take Ryan Leaf over Peyton Manning,” or “There is no difference between the two parties,” or “Roy Cohen is better looking than Mark Cohen.”   

So, while "taxation is theft" is catchy and simple, it is also wrong, as are many simple "X is Y" statements." Instead of simply asserting that taxation is theft, I challenge them to define both terms and explain why taxation is theft.

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Great Moments in My Air Force Career

June 3rd, 2018 1:48pm - Posted By: Mark Cohen

Early one morning in 1985 or 1986, while I was serving as a young Air Force legal officer, my pals and I were sitting around the lounge at the Base Legal Office at Offutt Air Force Base, drinking weak government coffee and talking sports. Parking on that side of the base was limited, and you had to arrive early if you wanted a decent parking space.

We were a group of young JAG officers, mostly captains, one first lieutenant, and one crusty old Senior Master Sergeant whose job was to oversee the enlisted staff.  We were talking about a young boxing phenom named Mike Tyson.  My back was to the entry.

Suddenly the Senior Master Sergeant stood and called the room to attention.  I’d been on active duty more than two years already and had never seen anything like that in the relaxed atmosphere of the Base Legal Office. And I thought, “Sergeant Longuil, I’m not falling for your bullshit at 7:00 a.m.”  But then my pals also stood and came to attention.  So, I turned around in my seat to see what was going on.    

And there was the four-star general that commanded the Strategic Air Command, General John T. Chain.  And the full colonel who job it was to follow him around.  I stood, faced him, and came to attention.

Well, I guess General Chain figured my response was “good enough for a lawyer” because he said nothing. Unaware of the parking problem, he remarked about how good it was to see folks at work so early in the morning, then went on with the rest of his day.

As I look back on this incident, I think if you are going to give a man the power to destroy the world by deploying ten thousand nuclear weapons from missiles, bombers, and submarines, it’s probably good that he has the kind of personality that can let small stuff - like a young captain not standing quickly - go like water off a duck’s back. 

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The True Story of Snappy the Turtle and Trooper White

February 23rd, 2018 11:42pm - Posted By: Mark Cohen

This is a true story. I changed the names to protect some of the men involved.  Some are from Nederland and own, like, music businesses and stuff in Nederland, and they would not want their involvement known. I have also changed my brother Roy Cohen’s name to “Troy” to protect his identity.  Oh, and I changed the name of the Nebraska State Trooper because the tall Caucasian Trooper with the buzz cut that was patrolling Highway 83 near Thedford that Wednesday morning probably would not want his supervisors to know about this. 

These events took place in July of 2008.  Each year some of my guy friends get together and rent a bunkhouse on the Niobrara River near the Nebraska / South Dakota border.  We call this Mancation. It’s a yearly event where we sit around the fire discuss quantum physics, praise our mothers, and drink milk.  I don’t want to give the exact location because some of the guys have wives and girlfriends, and they don’t want the wives and girlfriends hiring someone to spy on us.

It was a beautiful, sunny morning and I driving my Dodge Durango north on Nebraska Highway 83 with the music cranking.  There were four other men with me –  my brother Troy and three others.  The windows were down.  I had not consumed any alcohol or drugs because I was driving.  And I don’t do that kind of thing. Troy and the others had maybe consumed some tequila, a few Colorado herbal products, and/or some other things. I mean, if we’re being honest, they were in an altered state. Because we had just purchased enough alcohol at the WalMart in North Platte to supply fourteen men for five days.

You must understand that we kind of stood out. Because I had a Thule rooftop carrier on top of my SUV and we had written “Kim Jong-Il’s Dead Body” on it in yellow paint. And we had written a lot of other silly stuff on the sides of my vehicle.

Highway 83 has one lane in each direction and there is very little traffic. There are mostly just a lot of marshes, cows, and red winged blackbirds.  When what to my wandering eyes should appear but a snapping turtle that must have been fourteen inches in diameter slowly crossing the road. We could not believe this size of this guy. I mean, Thedford, Nebraska, ain’t exactly the Galapagos. 

Now, my mom is from Alabama, and I lived in Alabama while in the Air Force, so, though I am not a redneck myself, I know the redneck mind. I can think like a redneck. And I realized that if we did not help this turtle, whose named was Snappy, get to the other side of the road, some redneck in a pickup would purposely run his 275/65 R17’s over Snappy and kill him. 

But though I can think like a redneck, I’m also half-Jewish, which means I can also think like God. Or at least Moses. I knew the right thing to do was help Snappy. We pulled off to the side of the road. We all got out of my SUV and approached the turtle. I carefully put one hand on each of side of Snappy’s shell, thinking I would just pick him up and deposit it on the grass on the other side of the road.

Well, let me tell you, those little f$#%$ers have LONG necks that can reach around further than you think and bite you faster than a Republican congressman caught having sex with a child can say “family values.”  And they’re freakin’ heavy. So, I instantly dropped Snappy and knew I needed to come up with another plan.  “Find a stick,” I said.

Sticks ain’t easy to come by in the sandhills, but Troy produced a tiki torch from the back of my SUV, so I used the torch to start prodding Snappy to the other side of the road. The absurdity of five over-educated middle-aged men using a tiki torch to prod a giant turtle across a highway in rural Nebraska amused me. And it was even more amusing to Troy and my friends because they were enjoying what you might call a tequila sunrise.  So, we were all laughing hard and a couple of the guys wanted to get photos of this turtle.

It was about this time that the Trooper (remember the Trooper?  This is a story about the Trooper) pulled in behind my SUV and activated his flashing lights. He exited his vehicle, took a as they say in police jargon, took a quick look at the rooftop carrier with “Kim Jong-Il’s Dead Body” painted on it, and said, “Good morning, fellas, I’m Trooper White from the Nebraska State Patrol, what do we have going on?” He was trying hard to keep a straight face and give the stern State Trooper look.

Being a lawyer, I knew just what to say. “Well, we were just minding our own business and driving the posted speed limit with Kim Jong-Il’s dead body on top of my truck when this freakin’ giant turtle thumbed us down…”  And then Trooper White couldn’t hold it in anymore and cracked a smile.  And I explained we were just trying to do a good deed for Snappy before some drunk liberals from Colorado high on pot tried to run him over.

Trooper White really couldn’t think of anything to charge us with, but he was amused and stayed with us until I finished prodding Snappy to the other side of the road. He was very friendly. He did not ask any of us for our ID and if he noticed that Troy and the others might have consumed a few things, he didn’t say anything. 

Trooper White pulled away and then we all piled back into my Durango. Troy and the others went back to maybe consuming a few things. I never asked Troy or the others about the quantity of illegal substances they might have had in the back of my SUV. I didn’t want to know. Snappy went on to lead a productive live. He lives with his wife and three children near Thedford, Nebraska.

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The True Story of Dave Cleveland

January 19th, 2018 11:25pm - Posted By: Mark Cohen

 The facts giving rise to this column began 48 years ago.  I was in seventh grade at Cherry Creek West Junior High.  (This was before the political correctness Gods decided “junior high” might stigmatize the little ones and changed it “middle school”). 

Believe it or not, in 1970 I was not the 215-pound black belt specimen of masculinity that I am now.  In fact, I was kind of a wuss.  I got picked on a lot.  Especially in gym. 

One day we were all lined up in the gymnasium for jumping jacks or whatever.  The kid in front of me, whose name I don’t remember and who probably has a half-dozen domestic violence convictions now, started picking on me.  The kid behind me was a tall boy named Dave Cleveland.  I did not know Dave well.  We did not hang in the same circles.  Dave saw what was going on, walked up to the other kid, gave him a push, and emphatically told him to leave me alone.  And that was the end of my ordeal, at least on that day.    

Dave and I were not friends.  He didn’t really know me.  He could have minded his own business.  But he did the right thing and it stuck with me.

That would be a good story if it ended there, but it doesn’t.  About eight years later I worked one summer at a pizza place in Glendale called Figaro’s Pizza.  This was great job for a twenty-year-old because I got free pizza, all the 3.2% beer I could drink, and had control over the music.  

One Friday night Dave Cleveland walked in with some other people to drink beer and play pool.  I took his order at the counter.  I don’t think he recognized me.  (To be fair, I looked a lot different.  And it was a Friday night in 1978, so many twenty-year-old men would have been drunk, stoned, or both). 

I called Dave’s name about ten minutes later to tell him his pizza was ready.  He came up to the counter and began to remove his wallet from his jeans pocket.  “It’s on the house,” I said.  He gave me a quizzical look, shrugged, took his pizza and went off to enjoy the rest of his evening.

Through the magic of Facebook, Dave and I were able to reconnect.  And because my agreement with the Mountain-Ear is that I can write anything I want so long as I don’t get the paper sued, I thought I would use this opportunity to publicly thank Dave 48 years after he stuck up for me.

I think the lesson here is stick up for others when you can.  It’s the right thing to do.  And you might get a free pizza.

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