Monthly Archives: January 2013

Cleo

When I think back to my first serious attempts at writing, I wasn’t sitting down and writing a poem because I thought that I would get published; I was doing it because of that abstract, inexplicable urge to create, and the urge to find self-expression in this act of creation. Writing was the outlet that I would return to again and again to explain my life to myself, to take the maelstrom of ideas and emotions and create something ordered and tangible.

This freshly pressed post from Anna Spanos is great. I only just discovered her blog and my thoughts here are my own interpretations–they might be totally inaccurate. But then, I believe readers should be empowered to draw their own lessons, regardless of author intent, so I will forge blindly ahead.

For Spanos, the forced prioritization of busy mother/wife/middle-management-hood has had a counterintuitively freeing effect on her writing. As she eloquently puts it, she has by necessity eliminated the time she spent on less important things. She is no longer “handcuffed” to the time and effort spent considering the critical reception of her work. She has, at least momentarily, escaped the egoism that weighed down her art back when her art was the thing that defined her most.

Spanos’ post illuminates a tension in my own blogging project. An essential part of starting this blog was the desire to anchor myself back into my creativity. I started writing when I was in junior high and kept writing, prolifically, and all for the “inexplicable urge to create,” for years. Law school stopped all that. I like being an attorney and I find legal research and writing fulfilling in a way that many of my peers find bizarre, but it is the antithesis of the creativity I engaged in before law school. Law school was an oyster that treated my creative urges like a grain of sand. I know they are still there, they are still beautiful, but they are encased in an impenetrable shell at the moment.

Black pearl and its shell

Black pearl and its shell (Photo credit: Wikipedia)

My first post-law-school blog was an attempt to dive back into my creativity, but it sputtered and died within a few weeks. It felt alternately too preachy and too frivolous. In this second endeavor, I’ve tried to craft an experiment with more structure and deeper roots. There are real, positive goals that I hope to accomplish here, goals that have nothing to do with anyone but myself. Goals that have a lot to do with “tak[ing] the maelstrom of ideas and emotions and creat[ing] something ordered and tangible.” Yet writing to get in touch with my own voice feels peurile. Like my disastrously melodramatic college Xanga account. So I hope that someone out there will find value and insight in my posts, if only to  ameliorate all the navel-gazing I do here. It’s a tension between self-conscious creation to help myself or others, and the purer, painful joy of creating because there is simply nothing else I can do.

For now, I hope that practice makes more perfect. I am the converse of Cleopatra–instead of dropping my pearl in vinegar, I’m dripping vinegar, post by post, onto my pearl, in an effort to methodically dissolve the shell of four years of exclusively professional writing.

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Wish on a Full Moon

Tonight I was driving home and noticed a huge full moon hanging low in the sky. I always try to take pictures of natural phenomena like this with my cell phone, and am always wholly dissatisfied with the result. Tonight I decided to take a few moments and bring my “real” camera out in an attempt to get a better record. By the time I made it out a few miles past the city lights, the moon had shrunk, but I still managed the shot below. As I sat on the hood of my car taking photographs and messing with the settings on my camera I began thinking about poetry. I used to write a lot of poetry; I miss it. Recently Natasha Tretheway, the U.S. Poet Laureate, had an interview on NPR and it reminded me how much. I came home and composed the verse below. Image and poem copyrighted by me, please ask permission before use.

Full Moon 01-27-13 8:00 PM

Wish on a Full Moon

Suddenly I recognize:

I don’t know the moon at all.

A wan reflected pall is the only face I’ve seen.

Was she understood by those who walked, in Teflon, on her skin?

Or shrouded still in mirrored shine that never entered in?

For uncounted generations, how like her we were.

Seen from space only by the absence or echo of other light.

But mankind remade the Earth, electrified and

independently visible through our fearless invention.

And as I come now into my own progress,

I hope for courage

to practice singularity over semblance,

to pass through this world showing only my own face.

 

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POW…ell: Another Substantive Declaration

I complained about the Oklahoma Supreme Court issuing an opinion declaring the standard of review a “substantive right” without explanation here. The Court recently came out with another Workers’ Compensation opinion which declares a different provision substantive, but it does offer a little bit more explanation: 

“We find that 85 O.S. 2011 § 329(B), which allows the trial court to appoint an IME at any time, is a substantive change in the law that only applies to injuries occurring on or after August 26, 2011, the effective date of the statute….

 

[T]he only question before this Court is whether the statute affects the substantive rights of the parties. That is, does the statute increase or diminish the amount of recoverable compensation or alter the elements of the claim or defense by imposition of new conditions? Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 15, 78 P.3d 542, 548. If the answer to that question is yes, then our case law mandates prospective application of the law regardless of the statutory language. Ellis, 2006 OK 81, ¶ 13, 148 P.3d at 877 (citing Cole, 2003 OK 81, ¶ 8, 78 P.3d at 546).

 

In Ellis, 2006 OK 81, ¶ 1, 148 P.3d at 875, the 2001 amendment at issue imposed liability on the last of successive employers to expose a claimant to cumulative trauma. Id. ¶ 7, 148 P.3d at 876. Before the 2001 amendment, the law allowed apportionment of liability between successive insurers in cumulative trauma cases. Id. In that case we held that the right to compensation and the obligation to pay such benefits became vested and fixed by law at the time of the claimant’s injury and such rights could not be affected by after-enacted legislation. Id. ¶ 14, 148 P.3d at 877.

 

Like in Ellis, the language in § 329 substantively alters the rights of the parties because it requires employers to pay for medical services in circumstances not previously recognized, namely, before compensability has been determined. 85 O.S. 2011 § 329(B) only applies to injuries occurring on or after August 26, 2011, the statute’s effective date, even though the statutory language directs otherwise. See Williams Co. v. Dunkelgod, 2012 OK 96, ¶ 18, ___P.3d___ (determining that the Legislature’s use of the language “regardless of the date of injury” is meaningless if such language substantively alters the rights of one or both parties).”

Hillcrest Medical Center v. Powell, 2013 OK 1, prgs. 0, 8-10. So, one possible standard for substantive changes is whether the new statute requires the employer to “pay for medical services in circumstances not previously recognized, namely before compensability is determined.” It is my experience that employers and insurance companies have always frequently paid for Independent Medical Examiners prior to compensability determination, sometimes by agreement and sometimes by Order of the Court. But, my experience is limited, and I have not done any research on that point…I could be mistaken. At least now we know a little bit more about the Court’s view on the procedural/substantive distinction.


Dunkelbaaaaad.

This is the first of what I hope will be a growing number of posts on this site: brief analysis on current points of law. The topic in question here is the retrospective application of newly enacted statutes to cases begun prior to the effective date of those statutes. The jurisdiction is Oklahoma.

The Supreme Court of Oklahoma, in an as-yet-unpublished opinion (Williams Companies Inc. v. Dunkelgood, 2012 OK 96), held that applying 85 O.S. sec. 340(D) (eff. 8/26/11) to a case accruing before the effective date “would allow the unconstitutional abrogation of an accrued right.” Williams Companies Inc., 2012 OK 96, par. 18. The accrued right at issue is the standard of review. The Court explained that “[g]enerally, a statute or its amendments will have only prospective effect unless it clearly provides otherwise.” Id. But the Court ignores the explicit language in 85 O.S. sec. 340(D), which renders the provision applicable “regardless of the date of injury.” If that language does not “clearly provide otherwise,” I’m not sure what does.

The Court explains “the standard of review…is determined as of the date of injury and is a substantive right which remains unaffected by later-enacted legislation, despite statutory language to the contrary.” Williams Companies Inc., 2012 OK 96, par. 18. The Court proclaims the standard of review a substantive right without explaining why this might be so. Moreover, the Court appears to have ignored relevant case law on this account: “Because section 3.6(C) is an amendment ‘in the nature of a directive’ to the appellate courts rather than an amendment affecting ‘the substance’ of a workers’ compensation claim, we find it is a change in the ‘mode of procedure’ subject to retrospective application.'” Mobile Mini, Inc. v. Dugger, 2011 OK CIV APP 31, par. 25. Mobile Mini is a Court of Appeals case and is not bindingly precedential, but it is persuasive and directly on point.  It is also directly contradicted by the Williams Companies opinion and to my mind WiIliams Companies ought to explicitly overrule it.

Could it be that no one brought Mobile Mini to the Court’s attention? It seems doubtful, but Williams Companies cites plenary other case law on the subject of retrospective application of workers’ compensation statutes (in Oklahoma we reform workers’ compensation a lot–something like five comprehensive overhauls in ten years). Why leave Mobile Mini out?

The procedural/substantive distinction is extremely significant in my line of work, where I argue for or against retrospective application of the most current statute every other day. I wish the Supreme Court of Oklahoma hadn’t played so fast and loose with declaring the standard of review “substantive.” I am virtually certain to be haunted by the lack of explanation here in the near future. I also wish the Supreme Court had tied up the loose end of Mobile Mini. It simply isn’t very persuasive to argue that a case has been overruled by not being mentioned when directly on point–but if it hasn’t been overruled, what is its status?


Breathless, in the Tunnel

I’m twenty-six years old and I still hold my breath through every tunnel.  We could all use a few more wishes, right? There are tunnels too long for this trick–but I give it a shot, gasping at the last instant before I start to get dizzy, or holding my breath just a little longer if I can see the light.

The past few days, I’ve been stuck in one of those longish tunnels.  I’m holding my breath, not quite sure I’ll make it to the sunshine. Even worse, this tunnel curves, and I have no way of guessing how far away that opening in the mountain is. I am anxious that because I can’t see the end, I’ll let go of my breath just a second too soon, and my wish won’t come true.

The sad part is, this is a monthly occurrence. Of course, the happy part is this is a monthly occurrence. Let me back up.

I have Polycistic Ovarian Syndrome (PCOS). (That’s a different post entirely, but suffice it to say the condition makes it difficult to conceive). We’ve been trying for almost four years now, in various stages of effort (at first just quitting birth control, then going on a diet to lose weight and increase ovulation chances, then taking temperatures and ovulation tests, etc.). This is the third day before my expected period, after the second month in a row of timely ovulation (longest normal streak yet)! This is a great victory in itself, one I keep trying to remind myself of as I continue to wait.

So I’m waiting. I’m emotional, irritable, and anxious, all of which could be a sign that I’m not pregnant (PMS).  I know that an at-home pregnancy test could give me an answer right now–but they are most accurate from the actual day of expected period and if I get a negative result I’ll just be trying again every day until I know for sure one way or the other. Waiting. I am having an irrational fear about running, because I’m worried that the exercise will cause my abdominal muscles to start contracting and trigger my period. I’m stressed, because of totally unrelated work issues, but also because running is my stress release and now I’m not doing it. My stress/anxiety makes me want to sit at home and eat chocolate and Doritos (which I did last night). I’m annoyed at myself for not running or eating right, because I don’t want to backslide after thirty two pounds lost since August 1st, 2012.  Plus, one of my deepest character flaws is great impatience with waiting. Which, clearly, is very helpful right now. I am all-too-aware that my mental state does contribute to my physical well being, and so I am only more concerned that stressing out is determining the result here. (I’m also aware that I’m probably overthinking all of this, either I’m pregnant or I’m not and probably none of these factors has an immediate effect on this month’s outcome). I’m spinning from all these intellectually laughable considerations, and I’m embarrassed to talk about them because I know how unscientific they are.

Thank goodness for Cash, who gently wheedled the truth out of me and offered comfort and support last night. Otherwise I probably wouldn’t have the courage to write this now. I think it’s important to capture this moment, before I know the outcome, before my narrative is colored by joy or defeat. This curve in the tunnel is pivotal (ha! metaphoric pun! In a few days, I’ll post again with a significantly different perspective and my feelings on this moment will change. But for right now, I feel like a strung wire. Tension vibrates physically in my body, and also in my soul. I am keyed up and psyched. the hell. out. That’s what this post is about.


My Late Resolution

This post is a bridge between the self and family categories. Fitting. After all, the family we are born into dictates the material of our lives. The family we choose helps us build those blocks into the cathedral we hope to become. When you are a member of a family, you have a responsibility to build others up.

My resolutions post focused on myself. But in these first few days of 2013 I have been considering what I can do to improve the lives of my loved ones. Most especially, my husband Cash.*

It would take a long time to explain all the things about Cash that make him my soulmate. I’m sure they’ll shake out over time but for now you can trust me on that. We have been together seven years and ten days, married five and a half of those. Part of what makes us great together is that we are different. Today I’ll just describe the parts that are relevant to the resolution…

I am highly motivated, a result-oriented perfectionist, with excellent work habits, sharp critical thinking skills, and a tendency to extrapolate past trends to future results. The flip side of my coin: I am anxious. Relaxing is a challenge and truly living in the moment is rare. I judge others too harshly by too high a standard. I am terrible at networking (or even just making friends) because I am unable to focus on and really listen to others when I have my own agenda. I am materialistic. I hold grudges, predict failure based on past mistakes, and find it difficult to forget even when I do manage to forgive.

Cash is affable, casual, funloving, supportive, extremely selfless and sublimely nonjudgmental. He brings moderation to my personality. He constantly builds my confidence. He gives me permission to have fun and give myself a break. He loves unconditionally, to an extent I’m not sure I even understand, but am hoping to learn. But his other side: He lacks motivation and is not a self-starter. He gets discouraged and sometimes gives up when things are difficult. He goes to extremes in the name of a good time or an escape, and these extremes can get him into trouble.

I’m sorry to say that one of my weaknesses is picking at Cash’s weaknesses during a fight. I blame him for mistakes caused by the characteristics I know he wishes he could change. I believe comparing myself to Cash is silly…water and wine. But when I’m angry or hurt, suddenly comparisons are easy and I always win. The world I spend most of my waking time in (read: legal industry) values my qualities over Cash’s and calls the valuation objective. Of course it isn’t objective. It’s not even valid. It’s unilateral and inhuman. Unfortunately it’s a myth that leaks into me and through my hurtful words into Cash.

So we come finally to my resolution. It’s late but it is perhaps the one I treasure most. This year, I will show Cash the way I see him even at the hardest moments. I will remember that how I think of him changes his architecture, just as how he thinks of me impacts my own internal structure. I will understand that sometimes he can only know his value if I tell him how much he means to me.

*Cash, like all the names on this site, is a pseudonym.


Resolutions 2013

New Year’s is a very special time for me. I’ll go into further details on that later, but for now I want to record my 2013 resolutions before I miss out on a 1/1/13 timestamp! The following are in no particular order as they are all equally important to me:

1. Maintain a weight under 160 lbs. I hope to lose a few more pounds but what is really important is to avoid backsliding after my recent 30 lb success.

2. Get pregnant. Modify Resolution #1 as necessary.

3. Consistently post to this site. I am starting with a once per week schedule. Surely I can find one thing every week worth discussing (otherwise I need to make a change). 52 weeks in a year really isn’t all that many opportunities for introspection, I think it’s realistic!

4. Triple my savings account amount and maintain at least that much for at least three months.

5. Get published for a paper focused on my professional interests. Along the way develop skills in those areas which can aid any future transition I may need to make.