Saturday, August 6, 2016



The Dos and Don'ts of Talking with Third Party Supporters  

This article is not directed at people who have decided to support third party candidates.  It’s really meant for people who are distressed about them, and feel a need to shake them by the collar and convince them they are being petulant sore-losers who need to face the reality that they are only helping Trump.  To them, I have two messages: 1) You are wrong to criticize them the way you do; and 2) You may still be able to convince them to vote for Hillary if you just learn to understand them.

The problem I see with the criticism of third party supporters is that it is based on the assumption that they are all sore losers, willing to let the country go down in flames to make a point, and/or don’t understand that their decision is more likely to benefit Donald Trump.  That is a naïve and unfair view of them.  And as long as you hold that view of them, you will not convince them to re-evaluate their decision to support Johnson, or Stein, or any other candidate of a third party.   This applies to the Bernie supporters who have decided not to support Hillary as well as those Republicans who have made what I think is an even harder and nobler decision to leave their party over their disgust of Donald Trump.

Listen, they know exactly what they are doing.  They are not blindly running to a fringe party that they just realized supports their views with an unrealistic belief that their candidate can win, nor are they ignorant to the fact that they just may tip the balance and put Donald Trump in the White House. 

We should, of course, begin with what should go without saying: they have the right to support or not support whomever they want.  But the next point is more important: they have a goal in mind, and it is a legitimate and honorable one.  People all along the political spectrum have expressed disgust with the status quo; with the establishment; with business as usual.  And many of them see the solution to be the breaking up of the two-party system.  However, any third party, to be viable, will need to grow from humble beginnings.  As a practical matter that means people will need to support that party, or the movement generally, beginning at a point where they will not win.  But they would hope to grow that movement, and build support over time.  And in the meantime, that means they will need to bring people in from the two mainstream parties.  That also means they will cause some degree of short-term havoc and disruption, even to the detriment of certain causes and policies, and candidates they might otherwise support.  But that would, in their view, be a short-term price for a long-term solution.  Therefore, to yell at them about what the short-term (read: current election) consequences are would be of little value.  They know.  And they have accepted that.  And you are making an ineffective argument to them.  They have accepted that very consequence, but have decided that the goal of a new electoral process outweighs the short-term consequence. 

How to win friends and influence voters (and Bernie supporters)

Does all this mean they can’t be convinced?   No.  It means you need to understand what they are doing, and why they are doing it.  In a nutshell, they are balancing two interests.  To be specific to this presidential election, they are balancing two things: 1) the relatively short-term risk of Donald Trump becoming president, and 2) the long-term goal of overhauling the entire process by which we chose candidates so that our leaders are more responsive to the people.  That is the essence of their decision.  And once you understand that, and respect their decision and why they are making it, you can begin to have a discussion with them that may actually convince them to change their current decision to not support Hillary.  And how would you do that?  Not my trying to convince them that they are ignorant or naïve, but rather by convincing them that they should re-evaluate how they analyze those two competing interests.  Almost universally, they do not want Donald Trump to be president; so stop wasting time telling them they don’t understand what they’re doing and they are effectively supporting Trump.  Instead, recalibrate the scales and emphasize just how dangerous a Trump victory would be;
that it is not simply a short-term sacrifice; it would cause real harm to the nation in a way that could last for generations; that our standing on the world stage could suffer irreparable harm that will forever impact us; that millions of people including racial and religious minorities, women, immigrants, will be impacted in real ways that could turn back progress we have made as a nation by decades; that there is a briefcase with a button in it, and Trump is going to have access to it.  The list is endless.  But only through respectful and reasoned debate, that also acknowledges that there actually are competing interests that would have to be put aside, are you likely to accomplish what you want: to get them to look at the facts, and the real consequences of their decisions, and decide to support Hillary, even if it means deferring the goal of overhauling an admittedly broken and corrupt system.  And nothing prevents them from pulling the lever for Hillary while still supporting, whatever way they want, the growth of another party that can play a bigger role in the future. Hopefully in a near future where the stakes are not as high, and the risk of a megalomaniac becoming leader of the free world has gone away.

Will this work on Republicans?

This all may seem to fit the Bernie Sanders supporters, but how about Republicans who have abandoned their standard bearer, and in many cases their entire party, over the nomination of Trump?  Does the same argument apply to them?  Absolutely.  I have more than a couple of conservative friends who are absolutely dismayed at what has happened with the Republican Party, and have decided to support Libertarian Gary Johnson.  But at least one good friend of mine indicated that if forced to choose between Hillary or Donald, he would have to choose Hillary (although it was clearly a hold-your-nose-and-vote attitude, and I was sworn to secrecy).  That tells me that just like people running to third parties from the left, those fleeing the right are not people who all of a sudden decided they support the Libertarian Party, or the Green Party.  Heck, I bet that a month ago most of them wouldn’t have recognized Johnson or Stein if they were sitting across the table at a coffee shop.  They’re settling.  And that means they are ripe for convincing.  While the points to emphasize with the Republican defectors may differ, the approach is the same.  They need to be convinced, in a respectful and credible way, that they need to reconsider the real and harmful consequences of Donald Trump getting into the White House.  They may not be ready to see Hillary Clinton as someone who is particularly qualified, but there are greater risks of a Trump win: for national security, integrity of our international military alliances, our global standing, respect for our military and military families, and yes, conservatives do care about equality and equal justice and creating a society built on respect and inclusion.  So again, it comes to recognizing that they are balancing competing interests, not blindly screaming “damn the torpedoes, full speed ahead!” in a rush towards self-destruction.  Talk to them about all the concerns they have, and provide the data, which is not hard to get, that demonstrates how particularly unfit for the White House Donald Trump is.  Nobody is going to agree with you when you tell them they are being ignorant and self-destructive; but reasonable people can be swayed by facts and respectful discussion.

As for actual Trump supporters... sure, give this a try.  Many Trump supporters are likewise motivated by the anti-establishment sentiment, and it's important to consider that when talking to them.  To be frank, I tend not to engage them anymore.  I don't pick fights with them, but even if I try to have a conversation, most seem to want to raise everything to a vitriolic level that I can't deal with.  There are only so many times I can have somebody scream "Benghazi!" at me, even when I'm talking about immigration policy.  So I'm not saying they're a lost cause, but I have decided to dedicate my time elsewhere.There are some with whom I can have a rational discussion, but they seem to be the minority and I would rather use my time more effectively.  Which leads me to the final point...

What we don't have time for

Sarah Silverman received applause at the DNC for saying that Bernie Sanders supporters who didn’t support Hillary Clinton were being ridiculous. She was wrong, and I can’t imagine she actually won any Bernie supporters over.  And Seth Myers screamed “We don’t have time for this” and “Stop crying” at those same people during his talk show last week.   I’d say that Seth got it half right.  Labeling them as a bunch of spilt milk cry-babies is not only incorrect, it is counter-productive.  Are you trying to convince them to change to your way of thinking?  OK, has yelling “stop crying” and belittling people ever worked for you?  Of course not.  So it makes a good line, but I imagine only the Hillary supporters were laughing and tweeting about it.  But Seth was right about one thing: we don’t have time for this.  The stakes are high, the danger is real, and time is short.  People who are on the fence, or are just in the past couple of months flirting with third parties, are overwhelmingly not staunch libertarians or green; which is not to say that there aren’t many devout and long-term supporters of those parties out there.  But for the newly disillusioned, remember that many of them came to where they are through some degree of research and introspection, and are not trying to kamikaze dive out of pure spite.  So understand where they are coming from, respect the decisions they have made, and then reason them back to where they see the real, short-term danger that our nation is in.  Let Donald Trump continue to repulse them with his language of division and disrespect.  We need only speak the truth to attract them to our side.  Let’s take full advantage of that.

Note about the author:

Here’s a little self-disclosure, relevant to this blog.  I am a registered independent.  Many years ago, when I lived in New York and I first voted, I was a registered Republican, and I have voted for some Republicans and some Democrats at various levels of government.  I left the party over 15 years ago when I could no longer support policies that I considered elitist, pro-business at the expense of the common citizen, and in many cases downright unethical and even cruel in social policy and justice issues.  Ironically, I found the party that more and more loved to wrap itself in the flag and the Bible to be advocating policies that to me were un-American and un-Christian. Since then I have remained independent, evaluating each candidate on his or her own merits, with little thought of party politics.  If I had to do what independents in Congress do, I would probably now “align” myself with the Democratic party, although it would be a tepid show of support for one other party with certain policies that I cannot support.  Six months ago, I was very much opposed to Hillary Clinton’s candidacy.  Since I support her now, I will refrain from listing the reasons I would give.  But times have changed, and I have come to feel very strongly that “I’m with her”.  Admittedly, it is a position driven in part by the horror at the top of the other side’s ticket.  But I have also researched Hillary some more, particularly her public interest work and advocacy out of law school, and I realized that much of my discomfort stemmed from hearing the anti-H narrative repeated so often.  But it also means that I went through much of the soul searching that I now see in the people I describe in this blog.  And it was through my own research and respectful conversations with colleagues that brought me to where I am today.  And that is also what compelled me to write this, in the hopes that it will convince some readers to change their approach to how they talk to those third-party supporters.  Hopefully there will a lot of soul-searching over the next 3 months similar to my own, and with the same results.

Sunday, December 13, 2015

Mercy in the Legal Profession

Looking for Kindness and Compassion in our Profession

For the final days of 2015, I would like to share some thoughts with my colleagues about mercy.  Mercy is not necessarily a term you often hear associated with the legal profession, at least not as a mainstream descriptor.  But I am fortunate to have spent most of my legal career with colleagues whose work clearly incorporates the ideals of compassion and kindness, the very definition of mercy.
It is no coincidence that Pope Francis has declared the coming year to be a Jubilee Year of Mercy.  That is what brought me to think about it.  Of course, mercy is a virtue encouraged by all faiths, and is also found in the altruistic moral code of humanism.  So it is a universal virtue that seems like an appropriate subject for an end-of-the-year reflection.  And while this post is geared mainly towards my colleagues in the legal profession, defined widely and beyond the circle of attorneys (paralegals, assistants, investigators, interpreters, etc.), I hope people in other professions will find it worth reading and perhaps find ways to apply it more directly to their fields.

Mercy Through our Work

Our profession provides countless opportunities to show kindness and compassion.  Despite being the favorite target of jokes, lawyers have fought for the rights of others at great risk to their lives and livelihood throughout our nation’s history.  Lawyers have pushed this country ahead, despite daunting odds and often violent opposition, in the areas of civil rights, consumer health, worker safety, environmental preservation and personal freedom, just to name a few.  But perhaps it can be dangerous to always focus on those lofty achievements.  Not everyone can be an Atticus Finch, or a real-life Thurgood Marshal or Erin Brockovich (honorary J.D.!).  But every one of us can serve our profession and clients well in countless ways.  We can express the virtue of mercy in how we treat our clients, in our flexibility and our empathy for their situation, with being fair in our compensation.  We can also work with the countless nonprofit organizations and community agencies that work with the most vulnerable members of our community who are often most in need of strong advocacy and assistance.  Most bar associations encourage its members to offer some form of pro bono assistance, and I know plenty of colleagues that go well above and beyond that call.  So many attorneys work full time for nonprofit agencies, often in challenging and stressful environments, because of their commitment to helping others.  They include public defenders, immigrant advocates, domestic violence advocates, and many others who support the most vulnerable members of the community.  Those of us who don’t work full-time for those organizations can still provide valuable services by volunteering to take on pro bono cases or providing training and other support.  By doing that, we as attorneys can express kindness and compassion towards others, including members of our community and our profession.  For 2016, try to make a specific commitment to one of your community’s nonprofits.  Reach out to them and you may be surprised at how many opportunities exist.

Mercy Through our Advocacy

As lawyers, we have a unique opportunity to not only exercise kindness and compassion directly through our work and interaction with clients, but to advocate on behalf of our clients so that others show mercy as well.  Particularly for those who practice in areas such as immigration or criminal defense, we use our skills of advocacy constantly to give voice to many of our society’s most vulnerable members.  A judge will often have a wealth of information from prosecutors and probation officers that focus on a person’s weakest moment, and on actions that resulted in harm and loss to others.  Unfortunately, many officials who sit in positions of power and influence are far removed from the world in which our clients live and struggle and fail.  And those people who do hit bottom and break the law or find themselves having to answer for their faults often lack the ability to connect and explain what brought them to that moment; or how they truly are remorseful; or how what they did was an aberration- the exception and not the rule.  Attorneys and other advocates have an opportunity to step in and present the full panoply of that person’s life, and widen the lens through which the person is viewed.  The person violated an important rule of our community, but pan out and see that he is still a member of our community- with a family who he supports; with a child she raises by working 2 jobs; with a history of abuse; with a childhood where no opportunities were handed over; a lifetime of hard work and struggles which now fills the screen and puts a mistake, small or great, in some perspective.  By doing that, we allow that judge, adjudicator, social worker or other person of power to perhaps feel the need for some mercy.  We remind them that punishment without rehabilitation is counterproductive, and that a system of justice must show compassion to be worthy of the society it serves.  If we can bring out mercy in others, through our advocacy, then our work is itself one of mercy and worthy of the profession.


Reflect and Plan

As you think about these ideas of mercy, look both behind  and ahead.  Reflect on those moments when your actions were expressions of kindness, or touched others in a way that allowed compassion to flow through them.  Reflect and be glad for those moments.  But let’s also look ahead to the coming year, and develop concrete and specific ways that we will use our talents to continue exercising and encouraging the exercise of compassion and kindness.  In that way, we make our profession a noble one, and our own lives more worthy and fulfilling.

Friday, November 21, 2014

Executive Action on Immigration: What You Need to Know

   Last night, the President announced a series of executive actions on immigration that may effect upwards of 4 million people in our country.  They are a mix of deportation deferrals, enforcement priorities, border security and procedural reforms.  I would like to summarize the four main components that would be of most interest to my colleagues, clients and friends:


         This is the program created in 2012, focusing on undocumented people who came to the U.S. before the age of 16, and had continuously resided in the U.S. since 2007; the “Dreamers.”
What’s new:
•     Expands the program to include those who have resided in the U.S. since Jan. 1, 2010 (used to be since June 15, 2007);
•    No upper age limit (initially limited to people under the age of 31)
•    Beneficiaries receive deferred action on deportation and employment authorization for 3 years (used to be 2).
** Other requirements are the same, including entry before the age of 16, high school graduation and criminal bars.


        This is a new program, expanding the DACA benefits to parents of U.S. citizens and of legal permanent residents who meet the following criteria:
•     Have continuous residence in the United States since January 1, 2010;
•     Are the parents of a U.S. citizen or lawful permanent resident born on or before November 20, 2014; and
•    Are not an enforcement priority for removal from the United States.



        This initiative is for undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are the spouses, sons or daughters of U.S. citizens, or the spouses, sons or daughters of lawful permanent residents.  Even though the alien is still going to have to depart the U.S. to complete the visa process, this provisional waiver significantly reduces the amount of time the family will be separated.
What’s new:
•    Previously, only spouses and minor children of U.S. citizens were eligible for the provisional waiver.



        The executive action includes some changes and updates to the employment-based visa process that are meant to modernize, improve and clarify immigrant and nonimmigrant programs in order to grow the economy and create jobs.

        These programs are NOT expected to be implemented for another 90-180 days.  Be cautious of anyone offering to fill out applications or “get you in line.”  Beware of scams, especially from notarios and others who prey on the immigrant community.

        Yes!  There is something you can start doing now.  We know that applicants will need to have documentation proving things like when they arrived and how long they have been residing in the U.S.  So start gathering those documents now.  They could include things like rent receipts, utility bills, school records, medical records, taxes and pay stubs, just to name a few.  Also, there will be government fees for these applications, so you can start saving.  As an example, the current DACA application fee is $465.00.

        Unfortunately, these initiatives are a result of executive action, not legislation passed by Congress and signed into law.  President Obama has the authority to take these steps, but they do not provide a permanent solution.  These programs came into existence by the man in the White House, and they can be taken away with the stroke of a pen by the next President.  These programs don’t create a path to citizenship; they only offer temporary relief from deportation, and some other temporary benefits such as work authorization.  We need to keep fighting for permanent and comprehensive immigration reform!  So keep the pressure on Congress to do what the American people have been demanding for years.  It’s the right thing to do, and is in the best interests of us all!

        I wanted this post to be mainly informational, but it's also my blog so I'm entitled to color it with my personal feelings on immigration reform, which are as much about morality as they are about economics.  And I will conclude with the President's concluding words last night:
Are we a nation that tolerates the hypocrisy of a system where workers who pick our fruit and make our beds never have a chance to get right with the law? Or are we a nation that gives them a chance to make amends, take responsibility, and give their kids a better future?
Are we a nation that accepts the cruelty of ripping children from their parents’ arms? Or are we a nation that values families, and works together to keep them together? …

        That is what this debate is all about.

        If you have any questions about these programs, please feel free to contact us at:

Law Office of Andrew Nietor
110 West C Street, Suite 2105
San Diego, CA 92101
(619) 794-2386

(619) 794-2263 (fax)

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