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Chuck Otey’s Pro Bono Barrister for Oct. 20

October 20, 2015 By Charles F. Otey, Esq. Brooklyn Daily Eagle
Fern Finkel. Eagle file photo by Mario Belluomo
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Free Legal Advice: Oct. 26 BBA Law Foundation Experts’ Topic — ‘Aging in Community … How to Plan Ahead’

For several years now, the Brooklyn Bar Association (BBA) Law Foundation has been helping the profession put its best legal foot forward through a series of lectures and seminars geared toward providing necessary information on a number of topics.

Sometimes the foundation has dealt with the intricacies and challenges of Housing Court or domestic violence law. Led by President Fern Finkel, other programs have focused in on the continuing problems presented by the epic number of real estate foreclosures that have placed undue hardships on thousands throughout this borough.

Consonant with this well-established policy of providing necessary legal information to the public, the committee will offer another free public program Monday, Oct 26, titled “Aging in the Community and How to Plan Ahead.” The program is set to start at 6:30 p.m. that night at the BBA headquarters, 123 Remsen St. in Brooklyn Heights.

Those who attend will benefit from the experience of recognized elder law practitioners speaking about financial advance directives, health care advance directives, financing long-term care, benefits and asset protection.

In an appeal to broaden attendance, Finkel has asked BBA members to “Spread the word to your community, colleagues, neighbors, family and friends and anyone else who might benefit from the information presented by well-recognized practitioners in the field.”

Barristers are encouraged to reach out “on social media, distribute to your email list, tell your colleagues, tell your friends. Our goal is to make our presentations available and known to the Brooklyn community,” she said.

Light refreshments will be served.


How Many Moms and Sons Have Collections of 13 Guns?

Sadly it’s clear — to anyone who wants to look at it realistically — that the gun and armament manufacturers literally have a death grip when it comes to doing anything meaningful about gun control. Sandy Hook didn’t change anything, and neither will the massacre in Oregon.

While the National Rifle Association (NRA) appears to be the culprit, hiding behind the misinterpreted Second Amendment, the true villain here — the arms maker — is untouchable because of its wealth and its ability to manipulate legitimate gun owners. The money, hence the power, for all of this comes from those who make huge profits from making guns and the tools of war.

Talk shows — even the better-informed presentations on NPR — are over-laden with discussions about the NRA. The proverbial talking heads seldom focus on the manufacturers and their insane profits, which swelled inordinately with the invasion of Iraq and have soared with each succeeding war. The “fog of war” gives them an extra level of protection in addition to the pseudo-patriotic cloak of the Second Amendment.

NRA spokesmen claim, so illogically, that gun control won’t save lives because criminals could kill anyway. By the same illogic, there is no reason to pass crime-prevention laws, knowing that some miscreants will violate them anyway.

Even the most basic gun control law could have detected in advance the danger posed by the troubled young Oregon man and his mentor mom. If the law holds that every gun is registered and background checks are done routinely, it’s safe to assume that someone — even some computer — would have noticed that 13 guns had been registered to the same small household.


Was Oregon Household of Three “A Well-Regulated Militia?”

If 13 lethal weapons in the residence of a family of three doesn’t raise a red flag, requiring at least a cursory probe of this home arsenal, there’s no reason to believe that “better mental health procedures” — as the far right, Dr. Ben Carson, the NRA and their manufacturer masters call for — will ever work.

Many voters in this country justifiably resent the crippled, corrupted government in Washington, D.C. But since they don’t do much research or reading, or rely exclusively on Fox Television for their “fair and balanced” news, outsiders like Carson and Donald Trump look better to them than the rest of the trailing flock.

The Supreme Court certainly made matters worse by ruling (5-4, of course) that the Second Amendment protects unfettered gun ownership by all.

We can take some comfort and hope that in the long run, another Supreme Court would heed the words and clear logic of former Chief Justice Warren Burger, who wrote, after his retirement, “The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud — I repeat the word fraud — on the American people by special interest groups that I have ever seen in my lifetime.

The real purpose of the Second Amendment was to ensure that state armies — the militia — would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to an kind of weapon he or she desires.”

It’s hard to believe that a strict constructionist like Justice John Scalia could disagree with the wisdom of Justice Burger and the clear intended meaning of the original authors. It seems tragically silly to argue that the three-member Oregon household constituted “a well-regulated militia.”

But that’s the argument that still carries the day.


Kings Inn Panel Asks: How ‘Expert’ Can the Expert Witness Be These Days?

When the Kings County American Inn of Court gathered recently for its regular CLE-accredited session, an inn panel, led by Inn President Justice Arthur Schack and Joseph Rosato, probed a problem that has become a touchstone of much debate in recent years: the use — and possible overuse — of expert witnesses. Shown above, left, is the full panel: Seated, left to right, are Kerry Ward and Bonnie Kurtz. Standing, left to right, are Perry Silver, Justice Schack, Ned Gassman (holding a softly satiric sign that reads, “Biomechanics for Dummies”), Justice Miriam Cyrulnik and Joseph Rosato. Shown in photo, right, are Inn Executive Jeff Feldman, Justice Pamela Fisher and Lucy DiSalvo, the inn administrator (left to right). One controversial issue explored is the rapidly growing area of “biomechanical expertise,” an erstwhile combination of many skill sets that, in theory, qualify the witness to “reconstruct” the incident or accident in question with the kind of particular detail that, sometimes, it is argued, usurps the authority of the jury to determine the final issues in a contested trial. Administrator DiSalvo provided members with a thorough “brief” on these matters, one of which, authored by Florida expert Ira H. Leesfield, underscored the rapidly growing role of this comparatively new, usually contested, area of witness expertise: “Expert witnesses can often help juries understand these difficult issues. But as every trial attorney knows, expert witnesses can do much more than help juries understand. An expert’s opinion can be highly persuasive to a jury, or even completely dispositive to the outcome of a case … Perhaps expert opinions are so persuasive because it is human nature to defer to so-called ‘expert’ opinions. If one side is calling an expert, the other side must do so as well. The classic ‘battle of the experts’ ensues. This infusion of experts into the court system has created great controversy. Moreover, courts have had to create ways to sort through all of the experts being proffered at trials as some ‘expert’ testimony may be inappropriate in any given case.” The spirited debate emphasized the emerging — and thought-provoking — roles that witnesses, especially the biomechanical experts who sometimes do usurp the jury’s authority, are playing in our courtrooms today.

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