Barrister's blog

PAYOMET: Don't Miss David Wax Museum This Sunday!

"Pure, irresistible joy!"  NPR on David Wax and his Mexo-Americana band

David Wax Museum. Photo courtesy of

with Special Guest Opener - JIMMY RYAN

  • SUNDAY, MAY 29, 2011
  • TIME: 7:00 PM
  • LOCATION: Wellfleet Congregational Church, 200 Main Street, Wellfleet, MA
  • TICKETS: $20 General Seating; $15 Teachers, Students & Union Members; $30 Preferred Seating and AfterParty
  • PHONE: 866-811-4111 (No service charge for advance tickets)

DAVID WAX MUSEUM, an "act of great invention and verve" (Boston Herald) and the Boston Music Awards 2010 Americana Artist of the Year, performs at the Wellfleet Congregational Church in part of Payomet Performing Arts Center’s Sunday Music Series. Sunday, May 29th at 7:00 PM opens with special guest JIMMY RYAN, Boston’s own mandolin master.


David Wax Museum was named by as one of the top 10 music acts at the recent South by Southwest Music Festival (from more than 2,000 bands that came from across the country.  Its acclaimed performance at the 2010 Newport Folk Festival was hailed as one of highlights of the entire weekend by NPR. The Museum fuses traditional Mexican folk with American roots and indie rock to create an utterly unique Mexo-Americana aesthetic. Combining Latin rhythms, call-and-response hollering, and donkey jawbone rattling, they have electrified audiences across the country and are “kicking up a cloud of excitement with their high-energy border-crossing sensibility” (The New Yorker).

Use of a quijada (donkey jawbone for percussion) and a jarana (small, Mexican guitar) ,in addition to acoustic guitar and fiddle, give David Wax Museum a unique sound, marrying Americana music with sounds from Mexican folk music. For the new album 'Everything Is Saved,' the band also brings onboard tapan (Greek percussion instrument), morin khuur (Mongolian horsehead fiddle), viola, accordion, chord organ, lap steel, clarinet, trombone, saxophone, and vibraphone, making for an eclectic whole rooted in traditional sounds.

David Wax studied Mexican history at Harvard and on a subsequent fellowship and Suz Slezak grew up in bluegrass-rich Appalachia as a violinist before becoming a self-taught donkey jawbone player. Wax and Slezak offer a demonstration of their unusual instruments in this interview/performance clip.

"I made my first trip to Mexico in 2001 to work with an NGO as part of the American Friends Service Committee. We were in an indigenous village in La Huasteca where I first heard this regional style of central Mexican music. I learned new songs and instruments," says Wax.

Lest David Wax Museum be pigeonholed, Wax also acknowledges the influence of Americana artists like Ryan Adams, Uncle Tupelo, The Avett Brothers (with whom the band has toured), and the Low Anthem. In fact, the latter band covers an early David Wax Museum ballad "Let Me Rest."
check out DWM website at

ABOUT Special Guest Opener, JIMMY RYAN

For more than a decade, Jimmy Ryan has electrified the Boston music scene with his fusion of bluegrass pickin’ and driving edge rock.
Performing live, Jimmy’s fingers fly across the mandolin like lightning rips through a stormy sky. His flair is energizing, his style unique and the outcome leaves his audience spellbound. A blended perfection of rootsy rock, bluegrass and world music, his invigorating performance displays influences ranging from Bill Monroe to Bob Marley.

The Sleeping Juror

No lawyer can win every case. If a lawyer tells you they've won every case they tried; they're lying. However, given my years of experience in the theater, I've always prided myself on the fact that I don't think I've ever put a juror to sleep during trial.

Well; this week the Appeals Court ruled that a sleeping juror can result in a new trial!

In Commonwealth v. Dyous, a defendant had been convicted of larceny under $250.00. His attorney appealed because the trial judge allegedly erred by not holding a hearing to determine whether a juror had been sleeping during the trial. The court agreed and ordered a new trial.

The court discussed the fundamental right to a trial before an impartial jury and stated that an impartial juror must be attentive. The court stated that "If, however, there is a question whether the juror was indeed asleep...more than a momentary nodding off...then the trial judge has an obligation to conduct a hearing to determine whether the juror is capable of rendering his or her verdict based upon all the evidence".

It's now more important than ever for trial lawyers to be engaging and grasp the attention of the jury. The courtroom is, after all, just another stage!



OCHS "Tribute" Concert for Bernard Greenhouse June 4

His followers and friends mourn the recent passing of Bernard Greenhouse. When this year's concert was planned, the seventh for OCHS, it was hoped that the master would play, once again. Now; we have the opportunity to pay tribute to Bernie and celebrate his life of accomplishment. We are in our final push with ticket sales. Please help us with this tribute, while also supporting the many wonderful, and new services provided by Outer Cape Health.

A tribute to Bernard Greenhouse will be held on Saturday, June 4, 2011 at 7:30 p.m. at Wellfleet Congregational Church.  Tickets are available by calling 508-247-9400, by email to [email protected] or at

As an aside. Recently, before his passing, Bernie's dedication to OCHS was reflected, once again, in his agreement to provide the financial assistance to OCHS that was necessary to open the new OCHS pharmacy in Wellfleet. We anticipate an opening around June 14 and express our thanks to the family members that made this assistance possible.


Preservation Hall/ A New Day for Downtown Wellfleet !!

A tribute to four years of hard work

"What I have come to cherish the most, is what I saw in the pure human spirit in my fellow board members and volunteers in the community that were dedicated to make this dream become a reality."

For over 4 years, I've had the privilege of working with a dedicated group of individuals that worked to restore and revitalize Our lady of Lourdes Catholic Church on Main Street. Yesterday, I was honored to be able to be the MC for our ribbon cutting event of the beautiful reborn Preservation Hall. The evening then continued with a community dinner and a spectacular dance party. Estimates are that over 700 people made their way through the hall throughout the evening.

During the ceremony I read from an email sent to us by Selectman Ira Wood, who said that this effort was an example of a public/private partnership unlike anything he had ever witnessed.  I also commented that the cooperation we received from town government was  a wonderful example of what can occur when the private sector and local government work together. Whether it was addressing the legal challenges associated with constructing and operating a building owned by a private non profit on town owned land, or raising funds from both public and private sources (2.2 million worth), I never heard the words "it can't be done" from anyone. To the contrary, what I always heard was, "Bruce; let's figure out a way to do it".

What I have come to cherish the most, is what I saw in the pure human spirit in my fellow board members and volunteers in the community that were dedicated to make this dream become a reality. These people have become Nancy and my extended family and we have been forever linked by this project.  Marla Rice, Anne Suggs and Ellen LeBow (descibed in a CCTimes piece earlier this week as the "three crazies") had a vision, and found a way to make hundreds share in that vision.

Main Street in Wellfleet now has a new venue for art, music, education, community gatherings, and whatever else our community wants the building to be. Hopefully, the "love story" described by Marla in her speech is just beginning. After the dance party, I saw one of our local haunts, the LightHouse filled to the gills. I know that there will be a spillover affect for many Wellfleet businesses.

There are too many to thank, but I know that our  board could not have accomplished what we did without the help of every volunteer and supporter. Thanks all, and the work to make this a viable entity will continue. In many respects, our work, and that of our Managing Director, Janet Lesniak, is just beginning.

At the end of the night, I received the best compliment I could hope for. I got a big kiss from Ellen LeBow who told me I was the "fourth crazy"!

P.S.  Watch for upcoming posts on the Opening of the long awaited OCHS Wellfleet Pharmacy; the Bernard Greenhouse Memorial "Celebration" Concert" on June 4; great upcoming Payomet PAC Concerts; the restoration of the Pond Hill School in Wellfleet...and the opening of our new Hyannis law office at 540 Main Street!!! Who needs sleep?

P.S.S. To those that have already asked. Our Wellfleet office is not closing...and never will!! The main office is moving from Easton to Hyannis, which will cut down on my off cape commute of the past ten years and enable me to spend even more time at the cape offices.


Supreme Court Strikes a Blow Against the Consumer

Unfortunately, a hectic court schedule and an imminent move of my main office to Hyannis, have kept me away from my blog. However, I wanted to briefly comment on a largely unnoticed recent Supreme Court decision.

On April 27, 2011, in the case of AT&T v. Concepcion, the court ruled, in a 5-4 decision, that California's judicial rule regarding the unconscionability of class arbitration waivers in consumer contracts was preempted by the Federal Arbitration Act.

The California court court had previously held that an Arbitration waiver in a consumer contract in which the "party with superior bargaining power" had carried out a scheme to "cheat" consumers, was unconscionable.

In the At&T case, the court ruled that the California rule stood "as an obstacle the objectives of the FAA (Federal Arbitration Act) which "include ensuring the enforcement of arbitration agreements so as to facilitate streamlined proceedings...".

The dissenting opinion, authored by Justice Breyer and joined by Justices Ginsburg, Sotomayor and Kagan stated, in summary, that the majority opinion (authored by Justice Scalia) permitted enforcement of waivers that were arguably unconscionable and further stated that "federalist" principles should lead the court to uphold the California law, not strike it down.

Although the decision specifically dealt with waivers in the context of a consumer class action, I believe that the decision has far reaching implications and may well apply to any consumer contract containing an arbitration waiver. A bad decision for the consumer and a bad decision as it relates to the right of individual states to regulate consumer transactions in their own jurisdictions.


Payomet "Spring Fever" Concert

SUNDAY, MARCH 20, 2011

TIME: 5:00 PM

LOCATION: Wellfleet Congregational Church
200 Main Street, Wellfleet, MA

TICKETS: General Seating, $20 Advance (Children 12 and under, $10)
Preferred Seating and Afterparty, $35

Purchase Tickets online at or call 866 811 4111

It may have been a long hard winter, but spring is on the doorstep, soon to chase away those chilly memories.  Or that’s what the folks at Payomet Performing Arts Center are hoping, anyway, with Spring Fever, a music concert appropriately slated for Sunday, March 20, the first day of spring.  At the very least, temps will likely rise that afternoon in Wellfleet with performances by two very hot bands:  the legendary David Mallett Band and an opening set by Special Guest, Now You.  Cape music lovers may have seen Mallett and his band at any number of national music venues or heard them as guests on Prairie Home Companion.

Payomet is producing Spring Fever as a benefit for two local groups most anxious for the arrival of warmer weather --- and the growing season --- the Truro Ag Fair and the Wellfleet Community Garden.  Speaking about the event, Payomet Artistic Director Kevin Rice spills over with enthusiasm (and metaphors) in describing the event:  “Both of these groups have budded and blossomed practically overnight, tremendously, capturing the grass roots energy of the towns of Truro and Wellfleet.  That Sunday we’ll give each of them the opportunity to shine, and say a few words on stage about their mission and goals.  I expect high energy, it being the first day of spring… and the music will be to die for.”

With his signature gritty voice and strong social stance, David Mallett is often likened to Willie Nelson and Johnny Cash.  Hailed as one of America’s great songwriters, his ballads have been covered by more than 150 artists from Alison Krauss to Pete Seeger.  His 2007 album, The Fable True, spoken words based on Henry David Thoreau and performed to music, have also made Mallett a darling of conservation and environmental groups throughout the country.  Mallett, who resides in Maine when he is not touring, says his band is looking forward to returning to the Cape and he in particular to Wellfleet where he has a strong personal connection since his wife is a member of the Newcomb family of Wellfleet. “You’ve got a beach or something named after her, don’t you?” jokes Mallett.

The opener for the Spring Fever concert has even stronger Cape roots, since they live in Dennis when they are not performing nationally and internationally.  Special Guest NOW YOU consists of the husband and wife duo of Matthias Bossi and Carla Kihlstedt will have just returned from their most recent European tour of Switzerland, Austria and Germany.  They’ll open at 5:00 with music that is stripped down and intimate, drawing on their love of art song, folk song, industrial music, improvised music and heart-wrenching balladry.   Drummer/keyboardist Bossi and violinist/vocalist Kihlstedt arm themselves with a motley assortment of instruments from a motley assortment of eras (pump organ, cajon, Fender Rhodes, foot accordion, bass harmonica, flour sifter, wooden doll house, and others).   Now You has developed a following with new work that is raw and beautiful, lighthearted and full of pathos. They bring to life the small stories of unsung heroes... and claim “almost always to tell the truth.”



ABOUT PAYOMET PERFORMING ARTS CENTER: Payomet Performing Arts Center presents professional music, theatre and film screenings that bring a mix of exciting entertainment and strong social values to its stage in North Truro.


Nursing Homes, Falls and Fall Prevention

I presently represent the family of a woman that died in a Massachusetts nursing home after falling 10 times over a 14 month period. That's right; not a typo; 10 times!

In nursing homes, 3 out of 4 residents fall each year. That's an astounding number. Many of the cases I have handled in this area involve bone fractures (usually hips) after a fall.  However, most of the cases have a common theme; inadequate "fall risk assessment" and a failure on the part of staff to use well accepted fall prevention strategies when a patient is at risk for falls, or after a fall.

What makes a patient a fall risk? A prior history of falls, medical factors, including heart conditions, drops in blood pressure , gait conditions, anything resulting in dizziness, and many others. In addition, many elders are on many medications (particularly psychoactive medications) which alone, or in combination, can significantly increase the risk for falls. In most of our cases, we find that even after a fall, inadequate measures are taken to prevent the next fall.

Many people believe that "restraints" are the best fall preventers. Not the case at all. In fact, less restrictive measures such as "reaching devices", bed and chair alarms, pillows and mattresses next to beds and monitoring of the patient when transferring from bed to toilet, and video monitoring are found to be quite effective measures. 

In the case mentioned above, there was scant attention paid to fall risk assessment or fall risk prevention.Shockingly, when I took depositions of caregivers, they didn't seem surprised that this woman had fallen ten times before the fall that resulted in her death. They appeared quite nonchalant about the whole thing, even though the two sons had complained repeatedly about the lack of care.

If you have a family member that is a patient at risk for falls; be diligent. Make sure that a fall risk assessment has been done and that it be periodically reviewed, particularly if a fall has occurred. Be outraged if your family member is not receiving appropriate care. Make noise and complain. My clients believed their mother was in a high quality facility. It was, in fact, a pretty one. But a rather ugly one in it's inner workings and patient care.



Cape Employers: KNOW the Mass. "Wage Act"!

This morning, I spoke to a business group consisting of about 40 business owners. I asked if any of them were aware of the provisions of the Massachusetts Wage Act. Not one person raised their hands. If you are a business owner with employees, or an employee, you need to be aware of the statute and its' provisions.

G.L c. 149 Section 148 protects employees by requiring that "wages" be paid within 6 days of being earned. The statute and court decisions have defined "wages" as not only hourly wages or salary, but also "earned"  commissions  and vacation pay. In addition, in a decision this week, A Superior Court judge has ruled that "severence pay" is protected by the statute, as well. This decision is contrary to court rulings in two other cases, which now leaves this issue unclear.  The requirement of the prompt payment of wages also applies to terminated employees.

In the event of a violation of the statute, as of July, 2008, the "employer" is subject to mandatory triple damages, costs and attorneys fees. All employees are protected by the statute, including "executive" and "professional" employees. Managers and officers of the employer can also be held individually liable for damages.

I recently was involved in the defense of a case where an attorney wrongfully advised a corporate client to withhold wages from an executive employee upon termination. Suffice it to say, not only was the advice bad, but it turned out to be an expensive mistake on the part of the employer. In making decisions regarding the payment of wages, care and diligence on the part of the employer, and employers' counsel is imperative.

There are many court decisions further clarifying the issues of what are wages, who is an employee and who is an employer. However, the consequences of non compliance with the statute may be significant, and, to say the least, costly; particularly for a small business.  If in your attorney!





Cape Codders: Beat the Blues in February

Shemekia Copeland comes to Wellfleet

I apologize, in advance (again), for an off legal topic blog.

However, how often, in mid February on Cape Cod, do you get to hear an internationally acclaimed musical artist? Never...until now!

You can see the accolades for Grammy nominee Shemekiah! The concert is at 4PM so you have a romantic Valentines day dinner afterwards and make it a great day and night. Plus; you support one of the Cape's great non profit organizations.

Shemekia Copeland will perform at the Wellfleet Congregational Church at 200 Main Steet in Wellfleet on Sunday, February 13, 2011. 

Tickets are available online here or by calling 866-811-4111.  Click here to see Shemekia live on


Can "Wired" Cape Cod Jurors "Unplug"???

It's hard enough to try jury cases these days when jurors, influenced by the "CSI Effect" think every trial should be a stage for high tech productions. Now, trial lawyers  must also deal with what is now called the "wired juror".

In every trial, the trial judge will inform jurors that they are to rely on the evidence they hear or see in the courtroom and that they are prohibited from relying upon outside influences including media, the internet, etc.  I always look over at the jury box during these instructions and often see jurors smile, as if to say "judge, are you kidding me"?? A recent article in Trial Magazine discusses juror blogs where jurors actually blog about court proceedings, and further discusses how jurors supplement courtroom evidence with their own on line research. The article stresses the importance of firmer admonitions by judges as well as the importance of providing jurors with more information, such as the meaning of legal terms, more background and context, and, one of my particular favorites, allowing juror questions. In my 28 years of trying cases, I have only had a few trials where judges allowed jurors to submit written questions after a witness testifies. In this process, the judge reviews these questions, and allows a witness to answer questions from the jury that the judge feels will not unfairly prejudice a party, or are not otherwise improper.

Personally, while I feel that these new ideas and procedures (and many others, including the questioning of jurors by lawyers during jury selection) should become a part of every trial, I do have my doubts about whether or not, in this day and age, the wired juror will comply with the admonition that they be   "unplugged", i.e no internet use, research, etc, during a trial.

If you've been a juror, or otherwise have a question or an opinion about this issue, I'd appreciate hearing it. Thanks,