Wednesday, October 15, 2014

A Mediator and Jury Duty

I arrived at the courthouse at 8:20am. Jury selection began around 8:45 and at about 9:05 my jury number was called and I proceeded to meet the clerk in the hallway with the other called potential jurors; there were about 30 of us.  As we assembled the clerk informed us that this case was "unusual" and they walked to the designated court room.

In the court room we were handed a questionnaire to complete. It asked questions relating to the nature of the case, which was a medical malpractice suit.  The allegation was that a radiological doctor saw a spot on the plaintiff's liver during a scan, but said nothing about it.  Four years later the plaintiff was diagnosed with liver (and skin) cancer with a terminal prognosis.  The case would ask the jurors if the actions by the doctor were negligent and if that earlier scan would have prevented the terminal prognosis.  Pretty heavy stuff.

After we filled out the questionnaire we were excused to the hallway as the attorneys waded through our responses. This is the first of several opportunities the attorneys and judge have to excuse jurors. Some jurors indicated that they knew the plaintiff or defendant or legal counsel and were excused. At about 11:45 we re-entered the courtroom (a good 2 hours of waiting in the hall). I was one of 17 to sit in the juror box (seven would be decided as actual jurors) to be questioned by the judge and counsel.  The rest sat in the "spectator" section.  But as soon as we sat down, we were excused to lunch.

At 1:00pm we reconvened in the hallway, and at 1:15 entered the courtroom and sat in our assigned chairs. The judge spent 15 minutes explaining the role of juries and then asked eliminating questions: do we know the parties, attorneys or witnesses (a witness list of 40 names was provided).  He then informed us that he and counsel had done their best to streamline this case to make it as quick as possible: Two weeks. Yikes.

We were sworn to an oath (thankfully, no Bible) and were asked if we had extreme hardships.  Several hands flew up, including mine. While prepared to serve the average during of trials (3 days) and perhaps a week, two weeks away from my business and income would be difficult.  Others presented similar requests to mine, but seemed more "hardship" than mine.

The judge did not dismiss any hardship request from jury. His reason was logical: Each trial deserves a cross-section of the peer community.  Fair enough. The only one dismissed was a lady who didn't comprehend English to a satisfactory level. Now it was time for the plaintiff's attorney to question us.

Here is where it gets dicey. At this time the prospective jury pool represents a nice cross-section of the community…aside the fact that most were white, like 22 of the 23 left. Yet, it seemed that this was the time to whittle that cross-section down a bit further, and the prosecutor wasted no time. He reminded to answer honestly as he evoked the Founding Fathers and the Constitution.  They, the Founding Fathers, fought bravely for our Right to a fair trial by a jury of our peers.  Let the appeals to emotion begin!

He proceeded to tell us his job: to persuade us to find for his client. For truth…
As if we didn't understand what "terminal illness" meant, he spelled it out for us. How could we possibly not find for the plaintiff?  He went down the line of jurors and asked each one questions framed from our responses on the questionnaire:

·        Does your being a doctor influence your partiality?
·        Your friend died last week of liver cancer, would that affect your decision?
·        You had a biopsy that was "lost" by the medical staff, would that affect your impartiality?
·        …and so on

Ostensibly the prosecutor was vetting for an impartial jury. He stated the case in one sentence:  "Could any one of you (us) not blame the doctor who did not follow the standard protocol in medical procedures?"  Of course, it must be that simple.

He asked the group if anyone had a problem with lawsuits.  My hand shot up, and I was told he would get to the mediator later (it was good natured and people chuckled).  Once he got to me, my questions were few, mostly because I was second to last to be questioned and the 45 minutes allotted for the prosecutor was ending.

After a break, it was the defense's turn.

The defense attorney started asking us as at random. I think she had specific questions of the two doctors and the lady who had 2 grandchildren in Chicago (and how she would react to them getting cancer). Ugh.  After that, she abandoned the randomness and went down the line in opposite direction from the prosecutor. I was second.

"Why do I have a problem with lawsuits" was her first question. With others, she asked for a little bit about them. Not me. So, I answered honestly and openly: Some lawsuits are appropriate, but most are not. "They are win/loss, black/white, zero-sum contests that reward who wins a debate and does not determine the right or best solution. Whether the defense or prosecution wins, it won't cure the defendant nor explore possibilities why this situation happened".  As a mediator, I told her, it was my job to address the problem(s) and interests of parties, and to represent the process. She tried to praise my job by saying, "that's great and since you strive for compromise…"  I stopped her there and corrected her, "collaboration. Compromise is a lose/lose outcome".  The jurors chuckled and she moved on.

I was asked if I had a problem with attorneys.  I said not personally or professionally, but that some tactics frustrate me.  Had I become partial to one side or the other based on tactics used already? Yes, I said. The prosecutor appealed to emotion several times. I saw this as a manipulative tactic and a signal of weakness of facts on the part of his case. She (defense attorney) asked if I could keep emotion out of my decision, and I say I could if counsel could keep it out of their presentations.  I told her that my partiality was to facts, not to persuasion.

This case was about money: How much should the plaintiff receive to cover expenses and loss of income. This is understandable and I wondered how much of that money (if awarded) would the plaintiff receive after court and attorney fees.

We took a break. When we came back, the judge dismissed the two doctors on grounds of…not sure.
While the judge may have wanted a good cross-section of our community, it was foggy that he did not and clear that counsel certainly did not want it. The quest in finding an "impartial" jury is glamorous, but is ultimately a canard and charade. Counsel wants jurors partial to their side. Each side was allowed to dismiss 5 jurors. It looked like a fantasy football draft session. Each side huddled with their party and clients. The bailiff passed back and forth between parties a sheet with the jurors' names. Each side would cross one name off, pass it to the other side, and so on.
The jury was selected: 4 women (the plaintiff and defendant are women) and 2 men (one who's daughter in law has breast cancer). I was one of the last to be dismissed.

My perception the current court system was not improved by this experience. I think the judicial system in the U.S. is the best, but is being manipulated by a litigious society spurred along by legal counsel.  This case should not take two weeks.  Forty witnesses are not needed; show of force and scare tactics are the motivations for this volume witnesses (38 of the 40 were doctors).  The jury consists of no one with medical experience or knowledge, this is left up to the witnesses. I would assume some witnesses will be brought in to counter other witnesses.  This is doctor versus doctor, with the people deciding who is right having no clue. So if the jury has no clue or tools to determine which medical professionals are right, all they are left with is emotion and their own partiality.

I feel sorry for both parties and the jury.

Monday, June 2, 2014

Cider: It's Not Beer

Now, I have nothing against hard cider (i.e. cider with alcohol).  It can be delicious and comes in many variations. Cider (apple, pear, pineapple…) can be refreshing and paired nicely with food.As a sub-market of the adult beverage industry, it is booming. And that is good to see.   I hold no ill will towards cider millers. More power to them, and I hope they enjoy success.  But, cider is not beer. Not even close.

Hard Cider is riding the coattails of craft beer and its incredible boom. I see ciders at beer fests, beer magazines and just about everywhere one finds beer. Why? Cider is not beer.  It is not brewed and more closely (very closely) resembles wine: Fruit is crushed into juice, which is fermented then blended and packaged. Beer has many more steps that (should) adhere to precise scientific measurements.  The only commonalities they have are alcohol, liquid and packaging.

Big deal, right? Wrong…well, somewhat wrong.  In the grand scheme of things it is no big deal. But the constant integration of cider with craft beer blurs the line separating craft beer and cider. Too many times customers ask me for cider-beer.  Never heard of it, guy, sorry. It also minimizes the efforts, techniques, skill and art of brewing beer, which are widely misunderstood (or unknown) anyway. Brewers are the most underappreciated artisans of the adult beverage industry, mostly due to the complicated and specific production cycle of their craft and the depth of knowledge of chemistry it requires.  Plus, the massive effect a minor miscalculation or error can have on the product. In other words, it takes precision, patience, vigilance and integrity.

(Recently, I was at a beer festival that had several cider companies showcasing their products. I boycotted them at first, but decided that was kind of dumb.  Strange thing, though, when I asked about the pear cider as to what kind of pear juice did it contain--Bosc, Bartlett, D'Anjou…. The reply from the owner of the company did not know!!  Say….what??)

It's also a personal matter to me.  As the beer buyer at Grapes and Grains in Denver, I have worked with the owner to expand the craft beer choices for our customers. Ten years ago, it seemed each color had its own door; silver for Coors Light, gold for Coors Banquet, blue for Bud Light, red for Budweiser, white for Miller Lite, gold/black for MGD. Then separate doors for these companies' respective "premium brands" (Michelob, Blue Moon, Natural Light…).  The bottom line was that 3 brewers commanded 7+ doors, and there was little difference in flavor among them.

Today, we can see our progress in expanding beer choices from, say 6, to well over 100 brews. This wasn't easy. Bud, Miller and Coors (BMC) surely did not want to give up their spaces, nor their color coded displays.  They bullied, manipulated, lied and tried to strong-arm us into ordering for their benefit. But we persisted and now boast a very nice array of Colorado breweries, who themselves worked hard to arrive on our shelves…only to see shelf space dwindle a bit to make room for cider.

While sometimes delicious (and often too sweet), cider can be a great beverage. But it's not beer or cider-beer or beer-cider.  If cider producers want consumers (and others) to appreciate their product, then perhaps they should develop their own identity. It can only help them.

Sunday, May 11, 2014

Craft Beer Defies Definitions

Is it that Craft Beer as an industry has changed and thus changed the meaning of craft beer itself? Or, was what craft beer meant hard to define in the first place?  Does it need a definition? What effect does a definition have on the industry anyway? (*cough*  taxes  *cough*)

America loves to categorize things, including beer styles.  Take IPAs: American, east coast, west coast, no coast, English, double, imperial, triple, even IPA & 1/2.  It is one thing to label a beer so as to convey what it might taste like, but too much definition (or use of vague terms) serves only  to confuse matters. It seems we want the label on the bottle to tell us what to taste, instead of us taking chances and finding out for ourselves. Perhaps this is American as well…but that's another topic.

The Brewers Association has changed, or altered, its definition of Craft Beer several times. The reasons they have done so have been mentioned elsewhere and speculated just about everywhere. What defines craft beer? Ingredients, volume, ownership, origin?  One plausible reason that has not really been touched upon, as far as I can tell, is that defining craft beer may just go against craft beer's essence. Well, perhaps to a point.  But craft beer existed before its definition. How it started is where the essence lays: motivation for brewing beer.

The pioneers of the craft beer scene started brewing beer because they were not satisfied with the beer selections at the time. They thought beer could be better and decided to make their own. While making a profit was (probably) part of the equation, it wasn't the prime motivation. These brewers wanted to make and drink great tasting beer. This desire, and the beer they produced, defined craft beer.

Of course, motivation is difficult to quantify in the first place, but additionally arduous these days in that craft beer is selling quite well, which brings in profits, which in turn muddies the motivational waters.   Is a certain brewery making beer for sheer profit or great taste? Again, hard to determine at most levels. It seems fair to say, though, that acquisition of breweries feeds the desire to obtain profits and less about improving (or ensuring) quality.

To make matters even more unclear is the expense needed to open a brewery. And add to that the inspections, zoning, legal and social red tape a prospective brewery must navigate prior to first lighting of the kettle.  Brewing is a business after all, and money finds itself in the middle of it all. How it affects the craft of brewing differs among breweries.

This is a delicate balance in the craft beer world today; craft against business. Breweries face difficult decision making processes further complicated with multiple voices in the room. Do they sell an under-par beer with off flavors to make up for the cost of brewing it? Or do they dump it to maintain quality?  Either way it is an easy decision on one hand, and the wrong decision on the other.  But that decision could reinforce the craft essence or cast some doubt.

What would those craft beer pioneers have done?

Friday, April 18, 2014

Oligarchy in the USA

A recent study published by some Princeton and Northwestern University professors finds that the U.S. is under an oligarchy of the very rich (the richest 10%) of the population. In general terms, if the top 10% do not agree with a policy, then it is likely to change even though a majority of the other 90% agrees with it. Same goes with policy change; if the majority of Americans want such change, they are unlikely to get it if the top tier do not want said change. The very rich rule the country.
Shocking?  Not to me or many other people. And it would be difficult to refute this study as such observation is fairly obvious notwithstanding the research, which only adds an affirmation. But after pondering this "news" I've come up with a couple of observations:

It's suppose to be that way

What might be shocking is that this country was founded to support an oligarchy. Upon ratification of the Constitution, only white, male, adult property owners were allowed to vote. This, in some estimation, counted only 10-16% of the total population. Not only was the voice of the majority unheard, it would not have even counted. Today, votes are secondary to influence, and those with the most influence own most of the wealth. Back then property was top value; today it is money.

Maybe oligarchy is better

Even though the majority may disagree with the top 10%, it does not mean that agree with each other. With over 100 million voting voices (presumably), how could they ever agree on anything? How would anyone hear such a multitude of opinions, wants, needs, theories, etc? We scoff at Congress when it is gridlocked.  Imagine the whole country in such a state.  At least in an oligarchy decisions are made by those with huge "voices" and vested interests.  Which leads to…

The majority has no clue

By allowing only a certain section of society to vote (white, male landowners) the government was relying on the vested interests of those voters. In other words, since they have something to lose, these voters were assumed to have knowledge of policies, policy changes, issues, and laws. In this sense they were the educated bunch. They knew what they were doing.  It is a extremely farfetched idea to assume today's voters know (i.e. understand) much about anything in governance, policy, foreign relations, law or anything connected with the issues of the day. Do we really want a country based around the whim of an ignorant public? The Founding Fathers said no, and they were no dummies.

It can change

All of this does not make oligarchy the correct form of rule, and those oligarchs have no wish to change it. We cannot rely on them to suddenly change their attitudes and put their interests secondary to the majority. It would be incorrect and unreasonable for the majority to think and expect this. Change must come from the majority, and it won't be easy.  First, know the opponent. Who are these oligarchs? On what is their power based? What is their reach (i.e. what do they own)? We give them their power, either by purchasing their products and services, or believing their propaganda.

Second, think for yourself. Just because something was on MSNBC or FoxNews does not make it true or important. Finding truth and relevance is not easy. It requires critical thinking skills that are not taught unless we seek it out (that is, it's not in public education curricula). Even then, it is tough to put emotions aside and think with reason. Mistakes will happen, we must learn from them.

Third, the majority must educate itself, at least to some degree, on issues, events and policies. Sitting in front of the TV watching Duck Dynasty or Real Housewives of wherever is antithetical to this goal. The top 10% enjoy seeing their mindless shows capturing the attention of the majority, thus keeping them uninformed of their surroundings. Yet, education is not easy. It does take time and energy to search through the propaganda to find realities, but they do exist (note: not in television lineups we see every day. FoxNews, CNN, MSNBC, etc only entertain and do not inform).

Fourth, do not expect politicians to do…anything. They use buzzwords to excite emotions, from which they trust a vote to follow. Since the majority do not generally think and instead react on emotions, this is the best way for politicians to garner votes. They will say (and have said) anything to swing emotions (votes) their way: Flip flop, charged language, accusations, sidestepping questions, and issue warnings.

These are not easy to follow, but it is happening. Today's world is so much more faster than that of 200 years ago. But this government is of the people, by the people and for the people. It is up to the people to sustain it.

Expect disappointment

It is important to note the difference between an unjust law and an unpopular one. Some policies will not agree with a good number of people. We will not receive everything we want, but we will get some things. In a sense, the people of the United States are a team. They live with each other and interact on a daily basis.  We must be magnanimous in our victories and forgiving in our defeats. We are not the enemy of ourselves. We should not gloat or hold grudges, if only for the simple reason that one day it could be us on the short end of the stick, and who would protect us then? We enjoy the highs and endure the lows together; this is the power of the U.S. We can take it back…if we really want to.

Tuesday, March 18, 2014

The Problem Big Beer Faces

Brewing is an ancient art, dating back thousands of years of human civilization. It was used in bartering, as currency, to purify water and as a social lubricant. It is, and has been, everywhere in daily life as part of the community. It should come as no surprise, then, that brewing can be big business as illustrated by the sheer numbers of production from the largest breweries.  Bases on such numbers it would seem that these breweries’ beers are revered and loved by all. This is not the case and 20 years ago the big breweries paid no mind to detractors. With over 95% of the beer market, why would they?   
However, that 95% is no more. The Brewers Association envisions that by 2020, what made up that other 5% (namely craft breweries) will increase to 20%, thus decreasing the value of the aforementioned largest breweries, who are now taking notice. It seems their reaction has two main tactics: buy up craft breweries, and/or produce beers similar to those of craft breweries. The first is straightforward. Goose Island Brewing out of Chicago sold to AB-InBev a few years ago, much to the chagrin of craft beer lovers. Many saw this as a giant, international corporate conglomerate bullying the small, local family business into submission—not the best image to have for large corporations, even though it is not accurate.

The other tactic is a bit cloudier. Instead of straight up producing and offering other types of beer, some large breweries create smaller breweries, which then produce such beer. This avoids the stigma associated with the big breweries created by the first option. It seems creating a smaller brewery, using a different name, and producing different types of beer is preferred to just buying a smaller brewery.  Perhaps this is the better way to go…at least in the short term.

Here is the problem: deception lasts only so long before it comes back to bite. The second option addresses a symptom of big brewers’ perception, not what produces this perception.  While the first option, buying smaller breweries, comes with push-back, at least it is honest and open. Maybe this is by default as it is difficult to hide a multi-million dollar deal.  Still, the public is not deceived, either in reality or (importantly) through perception.  The creation of smaller, otherwise named breweries is not only deceptive, it is willful intent to deceive. What the public calls “lying”, and this betrays any relationship and significantly damages trust.

From there, it does not really matter how the beer is produced or even if it is high quality.  The public has a tendency to shun those who have betrayed them.  While America is a forgiving country and allows for mistakes, it has little tolerance for those who manipulate its patience, sympathy and embrace of small business.  As the voices of craft beer lovers gets louder, so too will their cries of foul play of Big Beer. This is starting to happen and an example of the counter-reaction from Big Beer is more deception...without lying.  The prime example is the new Miller Fortune, labeled as an “undistilled beer” (every beer is undistilled) and a “spirited lager”, clearly (and intentionally) aimed at the whiskey market.  Do they really want to deceive those consumers as well?

In the mean time, craft beer drinkers will continue to expose Big Beer whenever they can, shun Big Beer and tell others to follow suit. However, just as America has no acceptance of deception, it still is forgiving. An apology, a real one, followed by acts of conciliation (more than “gestures”) can go a long way. It remains to be seen if Big Beer comprehends this, accepts it, and follows through. The bottom line is that the animosity towards Big Beer is not aimed at the Beer (although that is where the fallout lands), but at the Big—not the product of Big Beer, but Big Beers’ treatment and value of relationships.