February 2016

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Just gone short SPY at $194.51

Anything lower than that by the 29 Feb [next Monday, or Tuesday US time]. This trade will sit for a week.

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Night before court and I have completed my questions to be asked to the primary witness. There are actually far more questions than I first anticipated. The questions essentially generated themselves from the Witness Statement that was provided.

I have read a number of texts on witness cross-examination and have some experience [although not a lot] from previous trials, so the number of questions is a little bit of a concern.

I think this time, as contrasted with previous times, I have a much better understanding of what I’m trying to achieve with the cross-examination.

I am seeking to test the evidence that I wish to use in my closing submissions. To do so I must ask the questions [already knowing the answer, or offering a choice of a finite number of answers] to elicit a favourable answer to the evidence I wish to apply the law to.

Therefore I have very carefully prepared my questions only to elicit a very limited answer and not provide an open question where the witness can offer an opinion or explanation. I only want, yes, or no, apart from some very limited exceptions.

If I carry it off well, then, there should be no major issues in obtaining the judgment sought and the full quantum of damages.

Of course I spent quite a significant amount of time preparing my witness on how to answer various questions designed to muddy the water and create doubt. Hopefully they have been studying their Witness Statements diligently and can answer naturally without undue hesitation, confusion or providing totally the wrong answer.

All will be answered tomorrow!

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Trump still winning and keeping his Presidential bid on track. In the same vote, Jeb Bush drops out of the race.


And exit polls showed Trump dominated with nearly every single voting bloc in the Republican Party’s Palmetto State electorate:

  • He won pluralities among both men (36%) and women (29%).
  • He fared best among all age groups except the 17- to 29-year-old group, which narrowly favored Cruz.
  • He dominated among voters who had not completed high school (45%) and some college (40%), while winning more narrowly among college graduates. Rubio beat Trump, 32% to 20%, among voters with a post-graduate degree.
  • He captured more than 30% pluralities among voters making less and more than $50,000 annually.
  • While scoring best among Republican voters, Trump also captured 33% of the vote from self-identified independents, who made up more than one-fifth of the electorate.
  • He won among both self-identified moderate (34%) and conservative (32%) voters.
  • He grabbed 35% of the veteran vote, despite a week in which he criticized former President George W. Bush and suggested he may have “lied” about the existence of weapons of mass destruction in the country.
  • He won among born-again or evangelical Christian voters, a group that had broken for Cruz in Iowa.
  • He was the top choice for voters whose top issues were immigration (51%), the economy and jobs (36%), and terrorism (31%).
  • Finally, the 74% of South Carolina voters who agree with Trump’s provocative proposal to temporarily bar most Muslims from entering the US chose him at a 44% clip.

With his win on Saturday, Trump became the fourth Republican presidential candidate to have won both the New Hampshire and South Carolina primaries since 1980. The other three candidates — Ronald Reagan, George H.W. Bush, and John McCain — went on to win the nomination.

“Let’s make no mistake: Trump, amazingly, is in a commanding position to become the Republican presidential nominee,” Larry Sabato, Geoffrey Skelley, and Kyle Kondik, of the University of Virginia’s Center for Politics, wrote Sunday.

They added: “The fact that he won about the same share of the vote in New Hampshire and South Carolina — two wildly different states — shows the broad appeal of his campaign among a significant portion of the Republican electorate.”

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So the short SPY trade was a winner. I’ll be looking for another trade in the SPY next week.

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I recently asked: Will the First Amendment lose out when an IME doctor – who also happens to sit on the Attorney Discipline Board – files a grievance to suppress a blog post of her testimony under oath that questions whether she committed willful perjury? 

Yesterday afternoon I received my answer. The First Amendment wins. Citing U.S. and Michigan Constitutional grounds, the Michigan Attorney Grievance Commission has dismissed Dr. Rosalind Griffin’s grievance against me.

In my original blog post that led to the grievance, I wrote about Dr. Griffin’s defense medical examination of my client, who had been seriously injured in a truck accident in Jackson County, Michigan. I asked readers to compare what my client told Dr. Griffin during her recorded examination with what she later testified he told her – and then asked the readers to decide if she was willfully committing perjury when she was testifying under oath, and if this was an egregious example of IME abuse.

Dr. Griffin was demanding I remove the blog. She was also demanding I remove the link from Google to the blog post, which she wrote in her investigation request was coming up first in the search results when people searched for her name.

Dr. Griffin was attempting to use her position and power on the Michigan Attorney Discipline Board to force me into taking down this blog post about her because she didn’t like that I put her sworn testimony under oath in an accident case on the Internet for people to read. She was attempting to use the Michigan Attorney Grievance Commission as an instrument to suppress the post and punish me for exposing her conduct.

But I was taught to stand up to bullies, and I was gearing up for a good fight to expose what Dr. Griffin did here and to educate the public on what too many IME doctors are doing to people these days.  The video above is a short example of what she may have gotten away with if the IME exam had not been recorded.

In its letter to Dr. Griffin announcing that “no further action” would be taken on her grievance against me, the Attorney Grievance Commission (through its Senior Associate Counsel) explained the reasoning behind its decision as follows:

“The information Attorney Gursten posted on his blog constitutes protected speech under the Michigan and United States Constitutions.”

This is important for many reasons. In this new and emerging world of social media and attorney blogs, the rules have not caught up to the technology. This is one of the first reported instances where what an attorney has written is found to be  constitutionally “protected speech.”

My blog post about what Dr. Griffin did to my client, and the very real harms that many of these IME doctors are causing people, is precisely what the First Amendment’s Free Speech protections were intended to safeguard. As Eric Turkewitz wrote, attorneys have even more of an obligation to speak out when we see injustice:

“Nor is a public discussion of a very serious issue prejudicial to the administration of justice. In fact, a public discussion is beneficial to the administration of justice.”

We as attorneys have more of an obligation to “speak truth to power,” not less, and to stand up for what we believe is right.  And even though I was preparing for a fight with Dr. Griffin and the Attorney Grievance Commission over this, I don’t want to gloss over what has already been done by just forcing me to respond to this grievance. I did have to hire a lawyer to defend me, incur attorney fees and lose considerable time from my own legal practice to respond to this grievance – a response which was demanded or would be considered misconduct.  I also have a very uncomfortable feeling that if this grievance had not received the legal attention and media scrutiny that it did, that an investigation would have been initiated. Just forcing me to respond to this grievance creates a dangerous “chilling effect” for other lawyers and for their own willingness to speak out, lest they be the victim of a grievance and the costs, time and threat of sanction responding to one. For this, we all lose out and damage has already been done.

Truthful speech on issues of public concern

I wrote my first blog about Dr. Griffin because I wanted the public to know what too many of these insurance doctors and defense medical examiners are doing to people every single day in personal injury lawsuits, No Fault exams and workers’ compensation exams.

Based on the support I’ve received from respected lawyers and prominent legal scholars around the country, it appears I’m not alone in my belief that attorneys have the same First Amendment protections to speak out truthfully about important issues of public concern.

  • Paul Levy, in the Public Citizen Consumer Law & Policy Blog, wrote: “the Supreme Court [Gentile v. Nevada State Bar and In re Snyder] made clear not only that lawyers do not give up their First Amendment rights when they become officers of the court, but also that they have a special role in helping the public discern whether other players in the administration of justice are misbehaving.”
  • Peter Lubin and Vincent DiTommaso wrote: The main goal of the First Amendment is to encourage open debate” and that “[l]awyer ethics rules and complaints should not be used as a tool to stifle debate the free exchange and publication of harsh opinions.”
  • Josh King, Avvo’s Chief Legal Officer, said in his “Socially Awkward” blog post, “Doctor files grievance against attorney over blog post,”: “the definition of defamation is NOT ‘something that someone wrote about me on the internet that I don’t like.’ Rather, to be actionable, defamation requires false statements of fact that cause damages.” He writes “we shouldn’t underestimate the power of butthurt doctors. After all, the medical profession has produced a spate of lawsuits over Yelp reviews, attempts to contract away free speech rights, and even reflexive suing of legal bloggers. So I guess it should come as no surprise that a doctor – who also happens to be a member of the Michigan Attorney Discipline Board – would file a grievance seeking bar discipline for a lawyer over a post he wrote that was critical of her.”

Educating the public about IME abuse in auto accident and workers’ compensation cases

I know first-hand the devastation that IME doctors cause. I see it all the time.  I see the harms it causes to my clients.

What Dr. Griffin did here is just one example of what happens all the time when people are forced to attend insurance medical exams. Many IME doctors make staggering amounts of money performing these one-time examinations on behalf of insurance companies and defendants in auto accident and workers’ compensation lawsuits. These doctors rarely find anything wrong with the people who are forced to see them, because they have a perverse financial incentive not to find anything wrong. Accident victims are forced to see these doctors and then often cut-off from desperately necessary auto No Fault insurance benefits, wage loss, medical care and treatment.  There is no physician-patient relationship, so these doctors cannot be held responsible for the harms they cause.

When all else fails, many of these doctors can just make something up that an accident victims allegedly told them during the examination. Why not? After all, they get away with it time and again as these exams occur in doctor offices with only the doctor and the auto accident victim present. There are no witnesses to verify or dispute the doctor’s version of what was said and what occurred. Many trial judges do not allow injury attorneys like myself to record these exams.

Even though Michigan has significant restrictions on the ability of attorneys to record these so-called “independent” medical exams, in my case, we were able to get permission to videotape Dr. Griffin’s examination of my client from the trial court. As a result, I had proof of what my client told Dr. Griffin during his IME exam with her. It is very different from what Dr. Griffin testified to under oath.

But what would have happened if this exam between Dr. Griffin and my client had not been recorded?

The public needs to know that this is happening. The public needs to know about the enormous harms that far too many IME doctors are causing to people when they sacrifice their professional integrity for insurance company cash.

I will continue to speak out against this. I hope other attorneys will now speak out against this and other important issues that impact the public as well, hopefully knowing that we have the same rights to protected speech under the First Amendment as everyone else.

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Here are two doors you can walk through:

Door number one – you spend 15 years putting $1000 into an investment every month, with the possibility of seeing that investment get cut in half twice.

Door number two – you spend 15 years putting $1000 into an investment every month, with the same annual performance of what’s behind door number one, but no drawdowns.

Which would you choose?

On the surface, you’d choose door number two. Of course you would, who wouldn’t?

But it’s the wrong choice. The trick here is to remember that you’re adding to the investment at a rate of $1000 per month. That’s when you realize that door number one, with it’s twin 50% crashes, is the better option.

It’s the harder choice to live with, of course, but that’s what the money’s for. Had you done this over the disappointing period for stock returns between 2000-2014, you would have lots of money to show for your troubles. Much more money than had you chosen the steadier option.

Eric Nelson at Servo Wealth explains how this is possible, by looking at an investor who chose to buy $1000 worth of the S&P 500 each month over the 15-year period versus the investor who chose to buy the more stable Vanguard Short Term Bond Index.

Despite only saving $180,000 cumulatively, your total ending portfolio value was $352,202—twice as much as you saved—for a rate of return on your contributions of +8.5% per year!     How can this be?  The S&P 500 only averaged +4.1%.  But not all of your savings averaged 4%.  Some money went in after 2001 and 2002 and 2008 and 2011 when shares were extremely depressed and subsequently earned returns of +12%, +15% and +20% or more…

We can see the opposite effect when we observe the outcome of dollar-cost-averaging the same amount into the low-risk bond fund.  Remember, it had the same annual compound return over the 15-year period.  But the amount of accumulated wealth was only $228,294, almost $130,000 less than what you netted from the S&P 500.

Josh here – The magical part is that the two investment choices both did around 4.1% annually on average. But by taking advantage of the short-term declines – systematically (which is the key) – investors can learn to embrace the volatility that ends up punishing some, but rewarding others with higher than average returns.

Conditioning yourself to love drawdowns is not easy – and the more money you have at risk, the harder it is. Younger people with 401(k) plans and newer brokerage accounts can use the power of DCA (dollar cost-averaging) – this is one critical advantage they have over their parents and grandparents. If they take advantage of it, the magic of compounding doesn’t take very long to appear.

Don’t flee from volatility, understand how it helps you and make it your bitch.


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Made adjustments to AAPL. Sold some stock short. Currently showing a profit. This position will run to May.

I like this position [particularly] as it is market neutral. I don’t need a directional bias. Essentially, all the difficult decisions are made at trade selection. After that, the market can trade wherever, it doesn’t matter.

So I can sit back and enjoy my coffee stress free.



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Today I spend preparing my witness for trial next week.

First off the rank is to ensure that he knows his own testimony. The number of times I have been in a situation where the pressure is turned up – and they forget their own story [facts of the case] is simply unbelievable.

Second is to try and impress upon them the overall strategy, – where their testimony fits into the overall factual matrix of the case. This is a little more difficult in that they have to understand where the other witnesses are positioned against them.

This is important vis-a-vis the cross examination, where, they can be led off of the carefully prepared pathway into unknown territory where they start addressing issues ad hoc. Not what we want.

Luckily [I think] two of the grounds are technical legal issues, which shouldn’t get us in too much trouble. The third ground however is where we’ll have quite a lot of ‘he said, she said’ testimony and where it could turn to custard quite quickly.

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We have just finished watching ‘The Office’. It came out years ago. Never got round to watching it until this week and then only by accident. Anyway, the format took a little getting used to, but I enjoyed it.

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Just gone short the SPY. So tomorrow it needs to be lower than $193.11. With a couple of gap days higher and sharply higher over the last 4 days, odds are pretty good that we get a little pullback.

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