blind insight

Because you asked.

Catherine has asked for an update about my efforts to figure out the insurance coverage for my cochlear implant. It took me too damn many phone calls, but I finally determined (a) that all the providers involved in the CI surgery are considered preferred in my health plan, and (b) that this means my insurance company will cover 90% of the plan allowance for everything. This was the easy part.

Because I've been told that the surgery can cost upwards of $90,000, I needed to figure out what that 90% coverage really means, and what kind of real dollars we were talking about. But the insurance company wouldn't tell me what the plan allowance is, and the clinic wouldn't tell me what the full-price cost is. The insurance company insisted that they could only give me a cost estimate after receiving certain specific information from my doctor, and the doctor’s office told me they don’t deal directly with insurance companies.

Finally, I had to cry. Repeatedly. To both the insurance people and the clinic people. While this may not be the most effective negotiation tactic, it worked.  The clinic people gave me a whole list of the medical codes relevant to the procedure, and the insurance company manually ran those codes and gave me the resultant coverage information. More important, the insurance company gave me concrete reassurance that my yearly out-of-pocket costs for services from preferred providers is capped at $4,000. Thus, regardless of how much the surgery actually costs, once my 10% share exceeds $4,000, the insurance company will pay every penny above that four grand.

As frustrating as it was to get this information, now that we have it, we are going forward with the evaluation process. I’ve mentioned before that I’m having some scheduling issues with respect to the actual surgery, and I still don’t have a better sense of when I will be able to have the procedure done.

I’m sorry that I don’t have a more updated cochlear implant update. Instead, I offer you this snapshot, taken during last weekend’s most excellent backcountry skiing adventure.

Can't look away.

I'm still watching InJustice, usually early in the morning while I pedal my road bike on the trainer. And it's getting better. The episode a few weeks ago, in which the National Justice Project was attempting to stop an execution, had me sobbing uncontrollably over my handlebars. Sure, David Swain tearing through the halls of the California Supreme Court at midnight was a little dramatic. But the court repeatedly telling him that he'd had his shot at postconviction relief, and that finality mattered far more than the fact that the team had found the real killer, that's pretty much dead-on. Which, of course, sucks, but that's another issue.

I remain irritated with the show's stupid mistakes (this week's epidode featured a wrongfully convicted couple serving "30 to life" in a federal prison. There are no indeterminate federal sentences, at least not imposed in the past 20 years). Its cavalier use of the term "habeas" and disregard for what a "habeas" actually involves also irks me (at least once per episode, someone says "that gives us enough for a habeas" or "we're going to go in with a habeas and get a hearing").

But the zeal and determination and compassion with which the team pursues its cases is engrossing. I'm even starting to like Kyle MacLachlan's pompous Swain, particularly after he fell on his sword to free one of his clients this week.

The real appeal, though, is that these guys almost always win. And, you know, it's nice to at least imagine a world in which the wrongfully convicted can frequently and with relative ease be freed.

Spring forward!

A long week draws to a close, at last. Once again, I have been mostly desk-bound, cranking out yet another brief, to meet yet another deadline, so that I can turn to the next brief, in time for the next deadline. But I'm really not whining - I love having so many different appeals, raising so many different issues. This latest one involves particularly fascinating issues, with all kinds of nifty legal twists and potentially significant policy implications. What can I say - I'm an appellate nerd.

While I've been preoccupied with all this work, assorted other developments and happenings have been percolating in the background.

Somehow, it's March already, which, in addition to college basketball (my #^$*@)!*">#^$*@)!*% brackets are already busted), means that triathlon season is upon us! We will be attending a wedding over Boulder Peak weekend this year, so I won't be able to vindicate my abysmal '05 performance. But I will be doing three, possibly four sprints: 5430 Sprint in June (with many of my longtime tri buddies), the New England Danskin in July (with a whole posse of my beloved imaginary internet friends), Tri for the Cure in August (with the fabulous Michelle), and probably Louisville at the end of August (in which I placed 3d in my age group last year, more a testament to the caliber of the field than my own talents, and which Steve will do with me because he can survive the swim by running on the bottom of the pool). I've finally started swimming again, and it's just about light enough out in the mornings for me to get a regular weekday running schedule going. I've been spending lots of time on the bike trainer Steve got me for Hanukkah; hopefully this will pay off when I take my bike outside again soon.

The arrival of longer days and warmer weather also has me itching to climb outside, though the next couple of weekends will be more about backcountry skiing. I've lost some upper-body strength over the past two seasons, but I'm climbing more aggressively these days, and challenging myself with harder leads. Steve and I have been mulling a one-week return trip to Sardinia to celebrate our first anniversary, but we haven't decided yet whether we can (or should) afford it. If we go, we want to be climbing well enough to make a serious go of the Aguglia.

What I am not looking forward to this Spring is the rediscovery of our outdoor spaces. We have an embarrassing number of leaf bags strewn about the side and back of our house, because we missed the final drop-off day in the fall and can't fit them all in the Civic. They must be disposed of, and soon, because they're an eyesore (and we really don't need to be competing with our Very Scary Neighbor for the Toedtli Drive Eyesore Award). We also need to see whether any of the plants we stuck in the ground last year are still alive. We will cross our fingers and hope that our beloved apple tree will blossom this year, after it failed to bear a single piece of fruit last summer. We must tear out the three useless beds in the back yard and build something attractive and efficient in which to plant some sort of vegetable and herb garden. And we need to think about building a deck, or otherwise making our outdoor area more conducive to everyday use. Neither of us is blessed with a terribly green thumb or a huge passion for gardening, but we're making a valiant effort at developing both.

Also, this Spring may, possibly, I think, be the season of my CI surgery. It is hard to say for sure, though, because the clinic keeps postponing my next appointment (it is now on April 24) and the person who supposedly can give me a tentative surgery date ignores my phone messages. If I didn't have a close friend who has survived the administrative incompetence and is doing phenomenally well with the implant, I'd be tempted to bag the whole idea at this point. But the more I think about it, the more excited I am about having the implant, so I'm going to try not to let these annoyances dissuade me.

It worked!

The audio, that is. When I tested the system on Wednesday, the sound was clear and undistorted, but not quiiiiite loud enough for me to really feel comfortable relying on it. But by Thursday morning, the wonderful Circuit tech guy had come up with a better, louder, headset, which worked beautifully. My hearing loss was a non-issue during the argument, just as it should have been.

And the argument? It rocked. The judges asked me all the right questions, engaging me in a fluid discourse about the intricacies of my case. They also beat up a bit on my opponent, leaving me satisfied and cautiously optimistic.

Best of all, when it was over, I got to come home.

Apropos.

Today's fortune-cookie advice:

BE ASSERTIVE AND YOU WILL WIN.

Let's hope so.

P.S.: The Circuit staff is having me test the audio system tomorrow. Apparently, they're bringing something in for my argument on Thursday, from an outside vendor. Hopefully it will work. The staff is being very helpful and understanding.

One down.

Today's argument went . . . okay. I arrived at the Utah Supreme Court building (where my panel was holding argument) very early, so that I could test the audio amplification system the court had assured me was available. I had tried to find out exactly what kind of system the court used, but could not get any detailed information.

When the clerk handed me the headset, my heart sank. Not only was it an FM system, which I've found to have much poorer sound quality than infrared, but the only available headset was the kind that flips over the ear, on only one side, with the speaker sitting directly over the opening to the ear. The opening to my ear, as you may recall, is filled with the earmold to my hearing aid. With this headset's design, I couldn't even move the speaker to lie closer to my microphone.

The clerk did a quick test for me, and I was happy to discover that I could, indeed, hear what she was saying into the microphone. A little later, when my opposing counsel arrived, she did another quick test. It was only then, 10 minutes before arguments began, that I realized the sound quality was not simply poor, it was somewhat garbled. The system did a good job of amplifying the sound, but it also created a great deal of interference and hard-consonant distortion.

The judges entered, and I approached the podium. As soon as I started speaking, I could tell that I was going to have a very, very hard time hearing the judges. I apologized and mentioned the problem to them, and they were kind about repeating questions as I needed. I got through the argument OK, and was able to hear my opponent well enough, despite the distortion. Mostly, I was just frustrated to have to call attention to my hearing loss, yet again.

I have argued in front of some of these judges before, in other situations where I've had technical difficulties. I would hate for them to think that I'm using my disability to garner favor or somehow to call attention to myself. I want nothing more than to argue my client's case as effectively as possible, with my hearing loss as a non-issue. I have made every effort to ensure that an accommodation would be available to me, and once again, that accommodation has been less than adequate.

I imagine these systems are not used very often, but surely I am not the only lawyer or spectator who must rely upon them. We have made great progress in the availability of disability accommodations in the courtroom. The next step, though, is to ensure that these accommodation measures actually work.

I'm going over to the other courtroom tomorrow, to try to test the audio system there. If it doesn't work, I may try to have a real-time captioner brought in to assist me at my argument on Thursday. I much prefer audio amplification to real-time, but my client deserves to have an advocate who can hear and address everything the judges and opposing counsel have to say about his case.

Whine, whine, whine.

I smashed my head on the just-below-my-field-of-vision overhead bins in the teeny plane. Twice.

I tried to work on the plane and couldn't keep my eyes open for more than 10 minutes. My head kept bouncing around as I dozed, and now my neck hurts.

I had to wait for half an hour for the free shuttle from my hotel, because my boss won't pay for a cab if there's a free option.

The restaurant in the hotel was, inexplicably (even to the guy who checked me in) closed. The only place that would deliver to my room on a Sunday night was Pizza Hut. I had to order $8.00 worth of food in order for them to deliver. So in addition to the pizza, I ordered a dinner salad and some cinnamon sticks.

The pizza took 90 minutes to get to me. Which meant that it arrived at 9:30 p.m. And the salad? Was a Fresh Express bag of greens and dressing. And the guy didn't bring me a friggin' fork, or a bowl. Of course the hotel didn't have a fork or bowl, either. Because the restaurant is, inexplicably, closed.

The pizza was doughy and greasy. The cinnamon sticks were cloyingly sweet. I really needed some protein and some vegetables. I feel sort of sick.

My room is extremely dark, and I have walked into the corner of the TV armoire three times already. The bathroom is tiny, and the closet is basically IN the bathroom. Weird.

The computer desk doesn't have enough outlets for both my computer and my cell phone charger. It's also too high for me to write comfortably on my laptop. The desk lighting is awful, and it's going to be very, very challenging for me to get much work done in this room. On the plus side, the room does have free high-speed wireless internet.

The TV reception is a little fuzzy. The TV doesn't pull out from the armoire, so it's too far away from the bed or chair for me to see very well. And it doesn't have captions.

I'm standing in front of the mirror, practicing my arguments, and I sound like a dork. My facial expressions look weird, too. And I still don't feel ready to argue tomorrow's case.

I'm really nervous that the audio accommodations in the courtrooms won't work.

This is going to be a long week.

Court week.

On Sunday evening, I will be heading to Salt Lake City. The Tenth Circuit is "riding circuit" and holding court week in SLC, and I have two arguments on the calendar. I'm also planning to meet with a client and some colleagues while I'm in town, and if I'm lucky, I might squeeze in a few runs at Alta.

For a variety of reasons (mostly because, for much 2004 and the first part of 2005, I had a half-dozen or so habeas cases moving at the speed of mud through the district court), I have not had a Tenth Circuit argument for 18 months. You may recall that my last oral argument was presented under challenging circumstances, and that it also resulted in a win.

In the time since I last argued, I have briefed over a dozen appeals, many of which are scheduled for argument this year. I have two cases on the March docket, three up in May (two of those are consolidated for argument purposes), and at least two more that will be argued this fall. Assuming that the infrared systems hold up for me, this is completely awesome. As far as I’m concerned, few aspects of lawyering are more fun (albeit nerve-wracking and challenging) than appellate argument.

Because I’ve had a slew of briefing deadlines in recent weeks, I wasn’t able to turn to my argument preparation in earnest until Monday. The two cases I’m arguing next week are vastly different from one another, and both are complex and confusing. I worked into the wee hours all week long (taking a break only for my standing Wednesday night climbing date), immersing myself in the briefs, records, and research for each case. I found myself toggling back and forth between them, ideas popping into my head for Case A even as I was trying to condense my thoughts on Case B. By the time I finally got home last night, I was feeling drained, distracted, and discouraged (but, apparently, also alliterative!).

Today, two of my colleagues helped me pull it all together. The "mooting" process, in which we pepper one another with questions, and deconstruct the strengths, weaknesses, and policy implications of a case, is an invaluable preparation tool. When a session begins, I inevitably find myself stumbling over my introductory phrases, realizing how long and cumbersome they are, and how bogged down I have gotten in the factual and legal intricacies of my case. But by the time we finish, often hours later, I will have distilled my opening into something clear, sharp and tight enough that I can probably say it all before the judges start questioning me (and, hopefully, draw an immediate question).

The process is not for the thin-skinned, as it reveals all the brilliant points I may have failed to make, or to make adequately, in my briefs. It also highlights the problem areas the judges surely will want me to address. But in no argument yet have the judges hit me with issues my colleagues failed to foresee, and in most cases, the internal questioning turns out to be at least as rigorous and incisive as that during the actual argument.

I have work still to do, but at least I feel excited and confident, rather than frazzled and overwhelmed. Now I can turn to other important tasks, like finding myself a new suit!