Note From Uncle Dale: The “O’Hara Scale” for Measuring Epic Advocacy and Argument 

Hello! Uncle Dale back again. Now, I realized it’s been a while since I wrote a Note from Uncle Dale, but a conversation I had yesterday inspired me. It’s been long enough.  Grin.

I will admit, I have been known to argue every now and again (it’s almost always “now” and frequently “again”). I am an advocate at heart. The lovely and talented Aunt SuperTam will tell you that I long ago blurred the line between arguing professionally and recreationally.  She is probably right (and as Aunt SuperTam says, when I say probably I mean definitely).

So a group of my students happened upon me in an empty hallway and caught the very end of an overly polite discussion between myself and opposing counsel in a case I am working on.

The only thing the students heard was “of course that’s a threat to sue your client,  if that was not clear to you I must have said it incorrectly.”

I pointed the students back in the direction from which they came with a look that said “can you find another route, kinda busy here?” They walked away and I finished my conversation.

Before class I ran into a couple of them and one said “I have finally heard a legendary “Mean Dale Argument” for myself.

I replied, “Oh, that was just banter, if the grand scheme of things that was nothing. Not even a 5 on the O’Hara Scale.”

They looked at me in puzzlement.

I explained, “when it comes to argument I have a very well established tool for measuring how epic and legendary an argument is. It’s called ‘The O’Hara Scale.'”

What is the O’Hara Scale you ask?

It’s kinda like The Scoville Scale (measurement of the pungency or ‘spicy heat’ of chili peppers) but it sets the parameters for what is an just an argument and what is a legendary argument.

Here’s is how I came up with it.

Back in the 1990s Stephen King was overseeing the filming of a mini-series version of his novel “The Stand” near where I live.  If you are not familiar with The Stand there is a character who is Deaf, a main character mind you, named Nick Andros.  This was at the beginning of the movement to have Deaf characters played by Deaf actors (Anthony Natale would have been perfect… well maybe he was a little young at the time. But I digress).

Locally there lived a mother of Deaf children named Bronwyn O’Hara.

I remember quite clearly how vocal she was on the issue. It was a gateway for her own children to see that people who are Deaf can do anything and, well, hearing playing Deaf is just wrong.  It’s the same discussion we are still having about white actors playing people of color or whitewashing roles in movies; ‘playing Deaf’ is just wrong.

When they announced that Nick Andros would be played by Rob Lowe it caused a great amount of upset here. None more openly than Bronwyn O’Hara.

Now here is where we get to rumor and conjecture. There is a possibly apocryphal story that Bronwyn, after much… we will call it dialogue or persuasion, got an audience with Stephen King at a group of trailers set up to support the production near our local zoo. Legend has it that it got heated.  Very very heated.

Like I said, that was the story at the time. But I tend to believe it (if it’s not true Bronwyn I don’t want to know-I like the legend), the reason I believe it is that while Rob Lowe still played the role of Nick Andros, Bronwyn appears to have gotten to Mr. King. She stuck in his mind.  How do I know?

While Mr. King was overseeing the production of The Stand he was writing a novel titled “Rose Madder.”

Ladies and Gentlemen I give you page 418 of the Stephen King novel Rose Madder!

Yes, Bronwyn’s rhetoric was so skilled that he called her “wonderful,” but so upsetting that he also KILLED HER OFF with a brain aneurysm! HE BLEW UP HER BRAIN! Seriously, you have to love the symbolism!!!

I will have achieved legendary argument status when and only when my opponent’s sole recourse and response to my advocacy is to write a novel wherein he or she says nice things about me… and then kills me off!

That is the top of the O’Hara Scale.

Life goals.

Life goals.

Rule 332

CPC compatible answers to the question, “How was your day?” (An on-going series):

Well, first thing this morning… wait, did you cut your hair? It is so cute! When did you do it?

Uncle Dale’s “You Probably Should Know”: Employee vs Independent Contractor (MLM)

I got this question a bunch this week. Many people who are Deaf and a few interpreters are outraged because there is a multi-level marketing convention in town and it has refused to provide interpreters because it says that the Deaf attendees are not “employees.” The MLM is right, they are not employees-but 100% wrong that it does not need to provide interpreters for them.

If you are not familiar with the idea of an MLM, it’s one of those companies that sells soap or skin care products or essential oils or found some awful tasting fruit that they now sell as a health drink.  They don’t sell them from stores or on-line. One person gets a few sales reps “under” them or in their “downline” who then get people “downline” from them and so on and so on… its a huge business.  

Anyway.  Most of these companies are run by lovely people, but every now and again I run into this issue.  A Deaf person joins the group as a sales rep and buys a ticket to a MLM convention (where they have motivational speakers and sales trainings and opportunities to network and build your business) as all sales reps are encouraged to do.  The person who is Deaf requests an interpreter and the MLM says no.  The MLM doesn’t believe it has to because, as I said, the person who is Deaf does not “work” for the MLM; the person who is Deaf is not their “employee.”  The MLM is right.  The person who is Deaf is an independent contractor.  If they try to force the issue using Title I the person who is Deaf will lose because Title I does not apply.

But, if you are not an employee you are “the public” and that falls under Title III.  Once a person who is Deaf bought a ticket to the MLM event that person became a “qualified person with a disability” under Title III (I know the who disability thing leaves a bad taste in your mouth–I wrote a paper on it, me too–but if you want to use the ADA…).  A person with a disability because the Deaf person is… well… Deaf, and qualified because a person is qualified to attend the MLM event if that person has a ticket to the event.  So when the MLM said it would not provide interpreters the person who is Deaf got the last thing they needed to have “standing” (the legal ability) to sue.

[t]o establish Article III standing, a plaintiff must show that: (1) she has suffered an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to being merely speculative, that the injury will be redressed by the relief requested. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004).

MLM’s at this point will scream and cry that is not on the list of “places of public accommodation” that is contained within Title III, it is not a store nor does it maintain a place that “accommodates” the “public” (not the same thing as a reasonable accommodation— different thing/similar name… different discussion for a different time).

Again, the MLM is right.  It is not on the list of “places of public accommodation” found in Title III.  But the convention center it is using for the convention is.

“Oh,” you say, “so the convention center must provide the interpreter?”  Nope. Well, the MLM can allocate the responsibility to provide interpreters to the convention center by contract… but usually the convention center will be responsible for the physical accessibility (more permanent structures) but the MLM is “operating” the venue (selling tickets, controlling access…) so the MLM would be responsible for non-structural access (psst. interpreters).

The person who is Deaf paid a price to attend the conference, the conference is held in statutorily defined place of public accommodation and the place public accommodation is operated, at least for the duration of the conference by the MLM, which Title III says makes the MLM, for the time frame of the conference at defacto public accommodation (even if the “lease” of the space is for a very short time).

So an “independent contractor” sales rep has the ability to enforce the ADA against an MLM using Title III, not because the person who is Deaf is an independent contractor… but because the person is NOT an employee, just a qualified member of the public.

I included a case that shows how it all works.

Jensen v United First Financial

http://cases.justia.com/federal/district-courts/utah/utdce/2:2009cv00543/70925/20/0.pdf?ts=1411581661

This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.

Rule 309

Save me Deaf Client… This hearing person is talking directly to me… she keeps asking me how I learned Sign Language… she wants to know if we’re related… she is doing it right now…  Save me? Please?

Rule 302

VRS Call Center, Saturday 2:30 AM: This isn’t Hell. Hell only has 9 rings.

(I answered more than that my first hour.)