Agonizing Over Low-Stakes Decisions

Should we buy the $5 billion company? Should we fire the CEO?

You should agonize over those decisions. They matter.

But there are low-stakes decisions.

Who should we call first about the threatened protest at our building — security or the other tenants? Shall we send Pirrip or Magwitch to the meeting? Should we buy white legal pads or yellow?

You should not agonize over those decisions. They don’t matter.

Remarkably, many people seem unable to tell the difference between decisions that matter and decisions that don’t.

Here’s the nasty part: The fact that decisions are low stakes doesn’t mean that they’re easy.

It could be very hard to decide whether to buy white legal pads or yellow.  The pads might have different absorbency or reflectivity characteristics.  Jarndyce might prefer white, while Summerson might prefer yellow. If we buy white, what will Summerson say? How will we answer? What will Summerson say next? Will Summerson be distraught?

Faced with a difficult — but low-stakes — decision, an intelligent person might well say: “Flip a coin, for God’s sake! We’ve already spent more time discussing this than the issue warrants. Let’s spend our time thinking about the high-stakes matters!”

But that intelligent person would surely be criticized: “Flip a coin? On a matter that affects this institution? And something that’s actually very difficult to decide? How dare you say such a thing? We must continue to debate this, on into the night, until we reach the right decision on the legal pad question!”

Let it go.

Think first about whether the decision makes any difference. If it doesn’t, just decide and be done with it.

On the other hand, if the decision does make a difference, then fret. It’s worth the effort.

Don’t get caught up in things that don’t matter.

(I read somewhere, but I can’t find a link, about a World War II handbook on how corporate executives stranded in Europe during the war, but supportive of the Allied cause, should contribute to the war effort. Those corporate officers, the manual said, should insist on debating every last item to exhaustion. No issue was too small to ignore. Once a decision was made, revisit it! Have people start the debate again. By debating and reconsidering every insignificant item, folks would ensure that no products were actually made, and the Nazi war effort would be crippled.

When you start to feel that way at your firm or corporation, advocate intelligence. Fret about the things that matter. For things that don’t matter, simply decide, and move on. You may have decided wrong, but you’ve decided. Remember: It doesn’t matter.)


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Regulators Unceremoniously Dump Volcker Rule Into Crude Ditch Next To Its Author

Morning Docket: 06.29.20

* The estate of Sir Arthur Conan Doyle is suing Netflix for its depiction of Sherlock Holmes as a kind and caring sleuth. Wonder if there was ever legal action over Holmes and Watson… [CNN]

* Texas law firms are rethinking reopening plans amid a spike in COVID-19 cases. [Texas Lawyer]

* A disciplinary panel has suggested a two-year suspension for a lawyer who showed “aggressive tactics and relentless vindictiveness” in practicing law. Some clients might like those qualities. [ABA Journal]

* A lawyer claims that he was retaliated against for exposing financial irregularities at a healthcare company. [Dallas Morning News]

* Justin Bieber has filed a $20 million defamation lawsuit against women who have accused him of assault. [CNN]

* A Nebraska attorney who accepted cocaine as compensation has been disbarred. He should have just stuck to cash, check, or credit card… [Associated Press]


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Opposition politician, activists released on bail – The Zimbabwean

The three women are all leaders of the Movement for Democratic Change’s youth section [Tsvangirayi Mukwazhi/AP Photo]

Zimbabwe’s High Court has released on bail an opposition legislator and two activists who say they were tortured and sexually assaulted by state agents but were later arrested for allegedly faking the ordeal last month.

The women – Joana Mamombe, a member of Parliament of the Movement for Democratic Change Alliance (MDC-Alliance), and party youth activists Cecilia Chimbiri and Netsai Marova – were arrested earlier in June from their lawyer’s office.

They were there to discuss another case in which they were charged for staging a protest in May.

The three women were admitted to hospital with multiple injuries after they were arrested in that case, and said they had been taken to a location out of town by unidentified men who allegedly beat them and sexually assaulted one of them.

The court on Friday ordered them to report three times a week to a police station and surrender their passports as part of the bail conditions.

They also cannot “communicate whether directly or otherwise with any section of the public or private media, including social media, in connection with the matter” until the case is over, Judge Davison Foroma said.

“What’s critical is that they have been granted bail. However, we are concerned about their safety,” party spokeswoman Fadzai Mahere told journalists.

President Emmerson Mnangagwa and the minister in charge of police, Kazembe Kazembe, have claimed that the women fabricated the story of their abductions as part of a wider plot to destabilise the government.

The women face a prison term or a fine after being accused of making false statements to police “alleging that they had been unlawfully detained or kidnapped by some unknown people who claimed to be police officers”.

Political tensions are high in Zimbabwe, where inflation above 750 percent is stoking anti-government sentiment.

The High Court dismissed a separate case in which the opposition party is seeking the eviction of a splinter faction of the party which took over its headquarters in the capital, Harare, with the help of security forces.

Zim court ends detention of abductees – The Zimbabwean

A HIGH Court Judge on Friday 26 June 2020 set free three victims of
abduction and torture, who had been languishing in prison for close to
two weeks, after they were denied bail by Harare Magistrate Bianca
Makwande on Monday 15 June 2020.

High Court Judge Justice Davison Foroma ordered the release from
Chikurubi Maximum Prison of Harare West legislator Hon. Joana Mamombe
aged 27 years, Cecelia Chimbiri aged 31 years and Netsai Marova aged
25 years, after presiding over the hearing and determination of a bail
appeal filed by their lawyers Alec Muchadehama, Jeremiah Bamu,
Tinomuda Shoko and Roselyn Hanzi of Zimbabwe Lawyers for Human Rights.

Hon. Mamombe, Chimbiri and Marova were arrested by Zimbabwe Republic
Police members on 11 June 2020 and charged with publishing or
communicating false statements prejudicial to the state as defined in
section 31(a)(ii) of the Criminal Law (Codification and Reform) Act
and publishing or communicating false statements prejudicial to the
state as defined in section 31(a)(iii) of the Criminal Law
(Codification and Reform) Act. The trio was also charged with
defeating or obstructing the course of justice as defined in section
184(1)(f) of the Criminal Law (Codification and Reform) Act.

The trio’s freedom bid had been dismissed by Magistrate Makwande who
on 15 June 2020 told Hon. Mamombe, Chimbiri and Marova that she vetoed
their bail application after being convinced that there were
compelling reasons not to admit them to bail as they were likely to
abscond from trial.

But Justice Foroma on Friday 26 June 2020 set free Hon. Mamombe,
Chimbiri and Marova after ruling that Magistrate Makwande had
misdirected herself when she denied bail to Hon. Mamombe, Chimbiri and
Marova.

The Judge ordered the trio to pay RTGS$10 000 each as bail money, to
report at the Criminal Investigations Department’s Law and Order
Section at Harare Central Police Station on Mondays Wednesdays and
Fridays, to continue residing at their given residential addresses,
not to interfere with state witnesses and to keep their passports in
the possession and custody of the Clerk of Court at Harare Magistrates
Court until their matter is finalised.

Justice Foroma also barred the trio from communicating whether
directly or otherwise with any of the public and or private media
including on social media in connection with their matter.

Hon. Mamombe, Chimbiri and Marova went missing on 13 May 2020, when
they were abducted in Harare by some unidentified people and were
later found on 15 May 2020 after being dumped in Bindura in
Mashonaland Central province.

They have already been charged with committing public violence after
they were arrested on 26 May 2020 for allegedly participating in an
anti-government protest against hunger during the national lockdown
period as defined in section 37 of the Criminal Law (Codification and
Reform) Act and for contravening section 5(3) (a) as read with section
5(1) of Statutory Instrument 99 of 2020 of Public Health (COVID-19
Prevention, Containment and Treatment) (National Lockdown) Order, 2020
and will stand trial in August.

Arrest Corruption and Looting, Not Trade Unionists! – The Zimbabwean

Masaraure who also doubles up as Chairman of social movement group, Poverty Liberation Movement was picked this morning by ZANU PF thugs in police robes and is being transferred to Masvingo.

Obert Masaraure’s only crime is that he is the voice of the poorly paid civil servants who are demanding a decent living wage from an extravagant regime.

This is not the first time Emmerson Mnangagwa’s corrupt and illegitimate regime has misdirected its arrows of dictatorship on trade unionists.

Just last year the same regime abducted and tortured the then President of doctors union, Peter Magombeyi for demanding better working conditions for health workers.

Only a week ago the same regime abused its powers and arrested two young female nurses for demonstrating against poor working conditions.

It is clear that the illegitimate Emmerson Mnangagwa does not respect the voice of reason let alone one from the poor and suffering masses.

Obert Masaraure is the Charles Mzingeli and Joshua Nkomo of our time!

He speaks on behalf of the hungry and angry citizens.

Obert is simply confirming that our homes are empty and surely that does not warrant any arrest.

We would like to put it clear that the attack on trade unionism is a direct attack on labour.

Simply put, the arrest and persecution by prosecution of those who speak the language of the poor is a direct attack on the starving masses.

Citizens are in desperate need for food and not arrest of one their own!

Surely Mnangagwa has gone to far and arrest of the voices of the poor is tantamount to asking for civil unrest!

Challenge accepted!

#VaromboTamuka!
#AbayangaSesivukile!
#KushingaMberi!

Stephen Sarkozy Chuma
MDC Alliance Youth Assembly National Spokesperson

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Amnesty defrauded of thousands of dollars – The Zimbabwean

This was detailed in a matter in which Amnesty is demanding a total of US$674 427, 19 from ex-executive director Cousin Zilala, ex-finance and administration officer Sibongile Zimbeva and former board chairperson Takesure Musiiwa.

In the High Court application, Amnesty wants Zilala to pay back US$148 609,08, Zimbeva US$42 344,82, and Musiiwa US$101 748,29. The amounts were established to have been misappropriated individually by the trio during their tenure.

They also want the three to jointly account for US$51 725 for unlawful payments made to staff bank accounts outside the payroll and US$330 000 financial prejudice suffered by Amnesty following irregular payments made to companies known as Al Shams Global Limited and KMH.

Amnesty has also demanded reimbursement of 61 880 litres of fuel drawn between 2015 and February 2018 which was unaccounted for with interest calculated from December 1, 2018 to date of full payment.
According to court papers, Zilala was the executive director from May 1, 2007 to March 21, 2018 when he resigned, Zimbeva was finance and administration officer from September 1, 2007 and resigned on December 5, 2018 and Musiiwa was a former board chairperson between 2007 and 2018, excluding 2016 and 2017, but was always signatory to all Amnesty bank accounts.

The court heard that sometime in 2018, Amnesty was recommended by Amnesty International to engage Deloitte and Touche to conduct a forensic audit and investigations of its financial activities for the period January 1, 2015 to February 28, 2018.

The court heard that Zimbeva and Musiiwa participated in the audit, but Zilala refused saying he was no longer employed by the organisation.

The audit report made factual findings that Amnesty had suffered serious financial prejudice owing to the acts and omissions of the trio whose job descriptions mandated them to manage and account for finances as well as existing policies.

It was established that Zilala, Zimbeva and Musiiwa had benefited from the various amounts from non-contractual allowances, collected and unaccounted cash withdrawals, outstanding loan balances and non-contractual and unauthorised fuel and mileage allowances.
Amnesty also accrued a tax liability of US$101 748,29 as a result of the trio’s failure to deduct tax for staff loans, unauthorised allowances or benefits.

The court heard that Zimbeva admitted to her improprieties during her disciplinary hearing whose determination is now final.

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Grace Kwinjeh: Is Khupe an MDC or Zanu PF creation? – The Zimbabwean

This is the time that the main opposition in Zimbabwe should be at its best, offering leadership, strategies and solutions to the multifaceted crisis, however, it is hamstrung by political bickering and personality clashes.

A pattern that continues to repeat itself, each time Zimbabweans are in desperate need of opposition leadership, an internal implosion occurs at the top, which throws the party into a state of confusion, compromising its ability to deliver change to its supporters and Zimbabweans at large.

That moment in history when the sheroes and heroes of our struggle should be rising and making a mark in the country’s unfolding politics, is being lost to an internecine warfare among factions of the main opposition party the MDC, as we knew it in 1999, now fighting from different corners and fractions.

A warfare Zanu PF according to character is taking full advantage of, one which I believe could have been avoided or at least mitigated, one which exposes some of the inherent weaknesses and vulnerabilities in the opposition which it needs to insulate itself against, if it is to survive the long haul to 2023.

The first concern is to do with moral leadership, what lessons can the MDC learn from the ‘struggles within the struggle’ during the war of liberation as documented by the late Masipula Sithole?

Sithole does not rule out the possibility of conflict in political organisations, however, he argues that what matters is how the leadership responds and handles the conflict.

Consequently, many begin to link internal party democratic processes or credentials as a reflection of the nature of politics an individual party will advance in national politics, charity they say begins at home. Humility, tolerance, forgiveness and political savvy in dealing with both internal and external challenges.

Tapping into institutional memory, in assessing the current state of the opposition, one senses a lack of ideological purity or clarity, that has often compromised its ability to assume power, as key leaders have often been found wanting in integrity and honesty, to advance the party’s agenda forward.

Horrible contradictions exist, baffling for instance is that in just two years the same leaders who endorsed the coup against the late former President Robert Mugabe, were soon in bed with him and are now working with his close allies.

Evident in the internal contradictions that are exposed each time the party splits, it is totally disconcerting for instance, given the risks involved, that in 2020 we should be convinced Thokozani Khupe, a former deputy Prime Minister seconded by the party to the GNU in 2013 and Tsvangirai’s deputy for several years has been working in collusion with Zanu PF.

Furthermore, to expose deceit, those who know the party’s history from the time the late Getrude Mtombeni was alive, that the Khupe of today is no different to the one the same leaders have shielded, worked with, promoted even in the midst of protestations from her own constituency. What has changed?

Again necessitating my question is Khupe an MDC or Zanu PF creation?

Rules have often been and continue to be flouted for political expediency creating political animals that are larger than the party.

No lessons are ever learnt.

Costly expediency, lets see for instance after the sudden appointment of Advocate Fadzai Mahere as party spokesperson, should a fallout ensue, that the same appointing authorities will soon be falling over each other convincing us from mountain tops, that she was never an MDC cadre anyway, pointing out her Zanu PF roots.

There is a method to this madness.

Had Khupe played ball and agreed to endorse the leadership of Advocate Nelson Chamisa after Morgan Tsvangirai’s death would we have ever known that she is a ‘double agent’ planted in the opposition leadership for all these past years?

Why wait for a fall out to expose agents?

The party fails to extricate itself from historical internal contradictions that militate against unity of purpose and cohesion in response to its main enemy Zanu PF.

Stuck in old populist self defeating arguments, as it fails to see the forest for the trees.

A more pragmatic leader’s preoccupation would be on how to weaken and stop Khupe a former ally and Cde from being a useful tool, an instrument and weapon of attack for Zanu PF?

It is demonstrably clear that populist arguments become irrelevant, if not futile, Khupe might never win an election or be loved by Zimbabweans, she remains a useful weapon in the hands of Zanu PF, slowing down the work of the MDC. Just like others before her did.

Elevating individuals to demi Gods, daily massaging their egos is part of the crisis we are faced with.

I contend in this article that a lot of the self inflicting pain, wounding and bleeding the party is going through could have been avoided, offering an opportunity for reflection and introspection in the opposition ranks on what could have been done, must be done differently, to avoid a recurrence of the same crisis.

Further arguing that none of those involved in the fighting that is traumatising Zimbabweans and faithful party supporters are innocent and should take equal responsibility, for the mess the party finds itself in. This way the party can redeem itself, if it is to survive and contain other opposition from emerging with the potential to pull rug from under its feet.

Gas-lighting, attacking and emotional blackmailing those who differ in perspective or opinion is pointless at this time, two years after the 2018 Presidential elections and three years to the next one. Time waits for no man.

At times you need to step back to move forward, in order to understand the current political political dynamics playing themselves out, fostering a healthy discourse that will help the opposition move forward.

Khupe is a product of MDC politics, through and through, there is nothing she is doing today, that has not been done before each time individual politicians have been cornered in the internal power struggles.

Furthermore, her takeover of Harvest House today is no different to the coup against Mrs Lucia Matibenga in Khupe’s Fast Climbers Restaurant in Bulawayo, in 2007.

That takeover was meant to neutralise the powerful Women’s Assembly led by Matibenga. In response to Matibenga’s firing I wrote this article for Pambazuka news, https://www.pambazuka.org/governance/dismantling-patriarchy-mdc .

Matibenga appealed in the courts of law and lost with MDC Secretary General, Tendai Biti, taking to the media gleefully expressing that they had been vindicated in firing her. The same courts that today are empowering Khupe in her arguments to do with constitutionalism taking over elected Mps and party asserts.

Mai Mati fought a silent painful battle at the time, perhaps her reason to never return to the party.

Consequently, a historical assessment of the MDC’s ability to deal with leadership differences of opinion or strategy, its ability to foster a culture of integrity, cohesion, and internal party democracy, with structures and processes that allow for dispute settlement, is once again under scrutiny.

Integrity means Mps do not accept diplomatic passports from President Emmerson Mnangagwa, whose legitimacy they do not accept.

*Consequently, there is a certain deception that needs to be exposed, the history of the party over the past two decades retold, so that a broader audience is able to place the ongoing bickering within its proper context, and advise MDC leaders properly and stop the bleeding.

Khupe is the villain in the unfolding story, joining other villains before her, the late Gibson Sibanda and Professor Welshman Ncube (2005 split over participation in the senate, forming MDC Green), Tendai Biti and Job Sikhala split after 2013 election loss, went on to form MDC Renewal.

All these leaders are on record of being associated with the dreaded Central Intelligence Organisation (CIO), go back into the files, you will read with certainty allegations that Ncube was rewarded with a farm for causing the first split, he is now the Vice President of the same party – who is fooling who?

Leaders can’t surround themselves with yes men and women it is a time for reflection, Zimbabweans have suffered enough.

Grace Kwinjeh is a journalist and and women’s rights advocate.

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As Zimbabwe’s Economy Crumbles, Mugabe’s Successor Courts Unrest – The Zimbabwean

Commemorating International Day in Support of Victims of Torture – The Zimbabwean

A man who was injured during violent protests is seen at a hospital in Harare, Zimbabwe, Jan. 16, 2019. The Zimbabwe bishops’ justice and peace commission is collecting information on violence and human rights abuses in dioceses across the country.CNS photo/Philimon Bulawayo, Reuters

The Zimbabwe Human Rights NGO Forum (the Forum), stands with victims of torture in calling for an end to the brutal attacks on life, human dignity and security of the person, both at the hands of State and non-State actors.

Torture and assault as instruments of inflicting harm, domination, control and unlawful investigation have been used historically in Zimbabwe, including during Gukurahundi, but continue to be used to this day. Recent prominent cases include the 1 August 2018 disturbances, the January 2019 ZimShutDown crackdown, and the May 2020 the abduction and torture of the three MDC Alliance youth leaders Joana Mamombe, Cecilia Chimbiri and Netsai Marova, the assault of Ntombizodwa and Nokuthula Mpofu from Cowdray Park, Bulawayo and the fatal shooting of Paul Munakopa from Bulawayo by the Zimbabwe Republic Police on 23 May 2020.

Since formation in 1998, the Forum has documented cases of horrific human rights violations perpetrated by State security agents in the course of law enforcement and for political ends, and by non-State actors with State complicity. Violations have ranged from extra-judicial killings, rape, sexual assault, arbitrary arrests and detentions, grievous bodily harm, disappearances, arson and destruction of property. These have often been accompanied with impunity. Survivors have been left with permanent physical and psychological injuries.

The abductions, torture and assault often form part of an apparent pattern. We have seen individuals exercising their constitutional rights to free speech and movement and freedoms of assembly and association, being targets for such crimes. Oftentimes, there is then limited attempts to investigate, identify perpetrators and prosecute.

In spite of Zimbabwe’s dark history with torture, Zimbabwe has not ratified the UNCAT. Domestically, the criminal law statute books do not have torture as a standalone offence to reflect its pervasiveness and seriousness. The Constitution of Zimbabwe, 2013 provides in section 53 that no person may be subjected to physical or psychological torture or to cruel inhuman or degrading treatment. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) provides for freedom from torture and inhuman and degrading treatment.

Since 1998, the Forum has stood side by side with over 20 000 victims of organized violence and torture and processed over 7 000 civil cases in local and international courts. The Forum continues to call for an end to human rights violations and impunity, and for the Government of Zimbabwe to ratify the UNCAT. The Forum echoes the words of the United Nations human rights experts who in a joint statement on 10 June 2020 stated that the Government of Zimbabwe must take all measures in its power to prevent abuse, to investigate suspected violations, and to bring any perpetrators to justice, under the absolute and non-derogable prohibition of torture and ill-treatment.

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