American Express

WHAT EVERY SMALL BUSINESS MUST KNOW

PROLOGUE

This is a must read for every small business in American… a true story in real time of a small “Mom and Pop” type business that struggles to survive while seeking to upend a 200 year old constitutional injustice. 

Did you know that your business has no rights to defend itself in any circuit or high court in America without being forced to pay an attorney?  And what if your financial damages from a large adversary or even the government are so large that you cannot afford a $400/hour corporate lawyer?

Everything you have worked for, say for the last 30 years, to build your business and reputation… gone forever.  What would you do if you lost your business and could not go to court to defend your company?  Could you start over, even pay your mortgage, or feed your family or send your kids to college?

This constitutional injustice is a little known but silent killer of small businesses.  You say, “But, this could never happen to me.”  Read on… it has happened to me twice!  No small business is safe.  

The following is an actual excerpt from my appeal before the 4^th District Court of Appeal in Florida, which was filed on August 31, 2010.  It addresses only the “equity” portion of the argument.  There are two other cases working their way through the courts… one in Iowa and the other in the state of Washington. (complete appeal manuscript is available on request in “.pdf” format)

   

WHERE IS THE EQUITY IN THIS?

Introduction

1.          Heretofore my arguments addressed the cornerstones of case law precedents that have long supported denial of corporate representation. 

2.          The following argument addresses equity law where there are no absolutes; everything is in the balance of fairness and what is in the best interest on the public. 

3.          For the court’s consideration and ultimate decision, I have attempted to unravel this historically complex matter into its core issues of equity, with open and necessary argument of sensitive issues to include judicial prejudices, historical disenfranchisements, the parties affected and possible motives.   

4.          At the turn of the 19^th century, there were only 335 corporations.  Corporations were large and powerful, monopolistic, generally disliked, not trusted and viewed by many as a threat to the society at large.  As our nation and laws were developing, corporations were severely restricted in their charter, operational life and freedoms that we now know and take for granted.

5.          Of the sectors in our society having an interest in corporate rights and “personhood,” there are still those people that fear the commercial and political power of corporations and are against all “personhood” type rights as a threat to society.

6.          Secondly, are large corporations in excess of 100 people, but would seemingly have little to no interest in self-representation because these companies would most always have the resources and good sense to employ good legal counsel.  Without the problem of affordability, it would be the rarest of situations where a layperson of a large operating company would choose the aggravation, personal sacrifice and misery of pro se representation of their corporate enterprise and be able to get the approval to do so (i.e. corporate resolution) from the corporation’s Board of Directors.

7.          Small corporations in opposition to the current law comprise the only group significantly, directly and adversely affected by the general rule that prevents corporate self-representation.  This is a large sector of our society.  Small business, under 100 employees with less than $5M total year receipts are estimated from the 2002 U.S. Census[1] to be 5,405,781 firms; 94.8% of all the firms in the United States.  With a conservative estimate of 10 employees per firm the group represents approximately 17.6% of the entire population of the United States.  The point is that this Small Business sector of the population is substantial and likely in the range of 50,000,000 – 75,000,000 people.

8.          The only known opposition to corporate self-representation is the legal community of lawyers.  Otherwise, who is there to oppose and argue against a small group of people, a family or a few friends under a corporate banner, a “Mom and Pop” type business that cannot afford a lawyer’s retainer and $400/ hour fees, to make an appearance in court to deny the false claims and damages sought by a large and powerful adversary?  By the current interpretation of the law in Florida, the Plaintiff’s claims would be presumed by the court to be true and accurate; damages and remedies awarded to the Plaintiff; and “Mom and Pop” would be prosecuted for the felony for practicing law, jailed and fined.

9.          By comparison to the 50,000,000 plus people comprising the sector of small business in 2002, according to the American Bar Association[2], there were 1,128,729 resident and active attorneys in the United States in 2006 and 1,143,358 in 2007.

10.      As such, this petitioner asks the court to decide on balance… is it more equitable for the small business sector to be allowed to defend itself by making an appearance in court to deny false charges and claims… or instead preserve the legal profession claim that the corporate being is practicing law.

Discussion Of Unlawful Practice Of Law

11.      The legislatively controlled licensing of attorneys, along with criminal penalties for offenders, was instituted in the 1930’s depression era.  These were the toughest of times and historically viewed that state licensing of lawyers was largely a move to protect the commerce and enrichment of existing lawyers.  Notwithstanding its illegitimate birth, since then the state licensed practice of law has been put forth and generally accepted as a necessary protection of the public.   

12.      Nevertheless, commonsense and some knowledge of human nature demands recognition that there is a strong human motivation to protect one’s livelihood and that this could be a possible factor in the lawyer community’s argument against allowing non-lawyers equal access and status in a court room… especially when it affects 94.8% of all the firms in America.  

13.      A second and significant motivation against corporate self-representation is to keep unlearned (in law) people out of the courtroom and from clogging up the judicial system.

14.      Admittedly, a person without legal practice and limited knowledge of legal processes adds a burden to the court in maintaining the flow of work while insuring that neither side is given an unfair advantage.  So be it, but as a matter of equity the problem of workflow and courtroom decorum should not even be considered. 

15.      The small business pro se litigant is typically unlearned, financially limited and is desperately trying to saving their corporation, livelihood, loss of employees, loss of family home and property (there is no shield for wealth in small companies… everything is personally guaranteed). 

16.      How can the courts even consider not allowing access to justice; and for the superficial reasons that it may be irritating and more difficult to adjudicate than having a licensed lawyer in the courtroom… never thinking that the cost of hiring a lawyer at today rates makes it economically impossible for a small, financially distressed business to hire an attorney.   

17.      That aside, it seems that the extreme penalty for the unlicensed practice of law suggests professional protectionism. To threaten a law suit for the collection of a debt or to give any manner of casual legal advice, even to your own grandmother, is a felony offense. 

18.      Consider that the corporate spokesperson is allowed to conduct every manner of legal contracting, agreement and civil action, except for the defense of their actions.  Both in logic and equity, this seems unsound and arbitrary.  

19.      Nevertheless, Florida law requires the corporation to pay for justice in the form of a lawyer for its defense of its actions... except in one situation.  The corporate person may represent itself pro se in the Small Claims Court.

20.      This begs the question, if corporate self-representation is acceptable for Small Claims Court, then why not a higher court?  Either the corporate person is engaging in the felonious act of practicing law without a license or not.   It seems, however, that the law is arbitrary.   When the law suit is of “little value”, then the corporate person may practice a “little law,” but when the stakes are higher in value the corporate person may not practice law, lest experience jail time.  It seems that this bifurcated interpretation of “practicing law” exist principally for the enrichment of the legal profession. 

21.      How is it possible to conclude that in the case where a corporate being cannot afford an attorney and cannot even make an appearance to deny false accusations; that this could be in the best “public” interest… to give a judgment to the accuser without any defense by the corporation… a collection of people, indeed the “public” by definition.  Where is the equity in this?    

22.      The law should stand on principle instead of profit.  Self-representation by a corporate person is either practicing law in all courts or it is not.    

Discussion On Disenfranchisement Of Public Rights

23.      Petitioner contends that the right of any person or collection of people to defend themselves is an inherent right of a free society.  The early history of the United States confirms that certain sectors of the public were disenfranchised for reasons believed at the time to be just and good for society.

24.      There are two examples, and perhaps more, of where people living in the United States have been barred from the courts.    In 1824, it was interpreted by the legal fraternity that the US Supreme Court in Osborn v. President, Directors & Co. of the Bank of the United States ruled that a corporation could not represent itself pro se in a Court of Law.  Then thirty three (33) years later there was the Dred Scott decision (1857), ruling that slaves were not citizens but chattel and that they could not sue in court.[3] 

25.      The first point is that in the early 1800’s, the rights of people and corporations were viewed differently than now.   For those that held the power, people’s rights were secondary to what could be deemed, as they viewed it, good for commerce and the protection of property (e.g. the political franchise of women’s suffrage was not recognized in the United States until 1920.)

26.      No attempt is made to describe the relative miseries of the groups disenfranchised from the courts, but there are pungent similarities in the characteristics of the groups and in treatment by the courts.  Most notably is the preconceived perpetuity of the injustice. 

27.       Ironically the U.S. Supreme Court, our trusted purveyor and protector of civil rights; the final arbiter and ultimate trustee of justice… made the adverse rulings to disenfranchise large groups of people of a basic right and then denied these same people access to the courts forever! …no further discussion.  The State of Florida, as with all states, has blindly followed the U.S. Supreme Court’s disenfranchisement standard.

28.      In the two examples, the people affected in both groups were largely ignorant of the law, financially distressed, unskilled in legal debate and deemed unworthy to approach the court.  Moreover, the groups were weak, without leadership, consumed with their daily labor and most of the people did not even know of or understand their disenfranchisement and what it meant.

29.      As for the people in small business, I bear testimony that in the 20 years since I learned of this injustice in the loss of my first business… I have never spoken with any small business person hence that is aware of their disenfranchisement to our judicial system… that they cannot even deny false charges brought against their businesses; seemingly, because attorneys don’t want you to practice law (by their definition of what Justice Marshall meant to say 186 years ago).  Instead, the courts have deemed it more equitable for you to quietly go out of business, lose your income, lose your home, lose your credit, lose your sleep, have your children withdraw from college, lose your retirement, lose your health insurance, experience anxiety attacks, and suffer all types of stress related maladies.  Where is the equity in this?  

30.      I beg of the court to comprehend the gravity of this matter.  When people that have worked hard all their lives, learn of this injustice, it is too late… they often lose everything and nobody knows or cares.   It happens all the time.  

Injustice of the Large v. Small

31.      Whenever a very large entity (e.g. company, corporation, bank, government agency, etc.) severely damages a very small company financially, the small company’s cash flow can be decimated in vendor bills and payroll in a one month’s business cycle (e.g. liquidity can drop from $20,000 - $30,000 down to $1,000 - $2,000).  As illustration, at the end of a construction job when a general contractor does not pay the final month’s bill and the 10% job retainer rightfully owed and due to a small subcontractor… with only $1,000 or so in the bank, the subcontract cannot pay an attorney $400 an hour to sue the general contractor.  The subcontractor often just goes out of business, ruined.  Worse yet the general contract will often sue the subcontract for some “trumped up” damages of the job site and since the subcontractor cannot make an appearance in court, the general contractor will get damages awarded and never pay any of the subcontractor’s final bill or retention. 

32.      It happens all of the time… where the large corporate entities and the government agencies crush small businesses; no less an ugly blood sport of our free enterprise system where the courts are the weapon of choice for the coup de grace. 

Protection of the Public Interest

33.      It would be unthinkable and unspeakable for the legal profession to admit that it really is the money and denying corporate self-representation is for the enrichment and protection of their profession.  Likewise it would seem difficult to admit that corporate self-representation is denied because unlearned litigants are not welcome in the court. 

34.      The only plausible reason or defense is that a licensed attorney must be used for the protection of the public (i.e. the “modern” reason for having a state licensing system).  Since this is a civil matter, “protection of the public” would necessarily mean protection of the property of the public.  

35.      In the balance are some 50,000,000 plus people, in subgroup collections of people that potentially need access to the courts in their corporate being but cannot afford an attorney. Affordability is the overarching characteristic that identifies this sector of society’s need for pro se representation. 

36.      In the best interest of the public for the “protection of property,” the only question under the current Florida Law — 

“Is it better to lose your property because you have no access to the court?

or

Is it better to hire an attorney for $400/hour and lose your property 3 hours later?”

37.      “Where is the equity in this?”  On one hand there is much suffering, financial destruction, loss of jobs and health… and on the other hand… nothing.  Absolutely nothing…, except a rule to keep us business people from practicing law; something we would never attempt unless in a desperate financial situation that offers no other option.  The legal profession is safe from us corporate laypeople, practicing law in the back alleys.  We only wish to defend ourselves in a court of law for a last chance that the truth will prevail and we survive to return to our businesses and livelihoods.

38.       Surely the legal profession cannot believe any harm would come to their commerce by allowing corporate self-representation; would not they be employed by the large adversary on the other side; would they not have the advantage of legal process (i.e. case law research, gathering testimony, production of records, motions, defenses and prosecution) weigh heavily to their favor?

39.       What harm could come to this nation by allowing public access to the courts.  

“Where is the inequity in this?”

Conclusion

40.         There is none.  No meaningful harm can befall anyone (not even attorneys) in society by allowing a collection of people to protect their property.    This injustice has been perpetuated since 1824; and that unto itself is now the spurious basis for any challenge to the rule… a quick citation to Osborn v. United States Bank, 22 U.S. 738, 830 (6 L. Ed. 204) (1824), and the time worn cliché…  “Not only has this principle long been recognized, it has been almost universally accepted.”[4]  This could have been the watchword for those supporting slavery or those against women’s suffrage or any disenfranchisement of liberty.

41.      There is no time honor to an injustice.  Passing time only magnifies an injustice.  We are speaking here of a basic right to defend our property, where access to the courts is being denied, bought and sold.

42.      The Constitution of the State of Florida states, Art. I, Section 21. Access to courts:

“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

43.      This right is derived directly from the Magna Charta.

No right shall be sold, delayed or denied. - Magna Carta, XXX (1215)

To none will we sell, to none will we deny, to none will we delay right or justice. - Magna Carta, XXIV (1215)

44.      The Statues of Florida do not diminish the rights of a corporation from those of a natural person.  The rights of a person are guaranteed unless certain and specific rights have been denied by statute.

45.      As to legal authority and representation, the corporate person must perform all of it functions and activities via authorized representation,  performing all manner of legal acts in personnel matters, contracts, leases, product sales, stock sales, stockholder matters, banking and tax matters.  All of these legal acts may be performed by laypersons that have been duly authorized to act on behalf of the corporation.   Like the natural person, the corporate person is not considered to be practicing law because these services are being performed where the corporation has a proprietary interest.  This is no different than any other licensed service that the corporate person may perform for itself but not for others.

46.      I beg the court to look beyond the time worn clichés and decide this Writ of Certiorari on the merits of the arguments… that case law does not support this law and equity law would not allow this law.   

47.      WHEREAS, Petitioner begs the Court to give precedence to the Florida Constitution and statutes; to uplift the people's right to defend themselves and their property, individually and corporately, against wrongful prosecution; and to insure that the basic right of access to the courts will never again be denied to anyone in the State of Florida.  

Respectfully submitted this the 29th day of August, 2010.

___________________________________________   

John M. Cockerham, pro se

5641 Atlanta Street

Hollywood, FL 33021

Phone: (954) 605-9883

Fax: (954) 963-4020

---

[1] Statistics of U.S. Business, 2002, Table 3., “Receipt Size of Firms, 2002,”  http://www.census.gov/epcd/www/smallbus.html#EstabSize

[2] ABA Website,

[3] Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)

[4] “A corporation must be represented by an attorney in Georgia,” Atlanta Business Attorney Blog, Published by Meriwether & Tharp, LLC, March 27, 2009

DEATH SENTENCE TO "MOM & POP"

John Cockerham, now 66 years old, runs a small, family owned “Mom and Pop” type of business. He and his family invested everything and fought for years to build up the company and its reputation. The company grew to 10 employees, three service trucks, three national contracts and numerous industrial clients. They were on their way to success.

John was responsible for setting up all three of the ALL PRO ELECTRIC credit card business accounts. Having run a business with over 300 employees and 12 locations through the United States, John had always relied upon traditional banking for cash flow and credit cards for incidentals and convenience. The electrical business was different. Occasionally the company would need to buy materials that cost $100,000 - $200,000 and on a daily basis, the service electricians needed to buy gas and make numerous small material purchases. Additionally, all of the vendor suppliers took credit cards and this provided a 15 – 40 days float for the company’s cash flow. After talking with American Express representatives on a several occasions, John concluded that they offered a stable and dependable credit source that could grow with the business. Additionally, American Express offered perks that no bank offered.

John explains, “I was very careful in making my decision to use American Express exclusively for my cash flow banking needs. The American Express representatives led me to believe that our credit would not be arbitrarily reduced; that I could have multiple independent accounts not subject to interruption, and that the American Express business account services were ideally suited for my credit and cash flow needs.”

After securing one and then two cards, (with airline and hotel perks) the company was offered and accepted a Platinum Card with unlimited credit and extensive perks. For years John paid the balances in full each month and on one occasion with a $170,000 charge for a generator.
Looking back John explains… “Had I been informed at the outset that by doing business with American Express, would mean one day I would get a call from my stranded electricians informing me that they could not buy gas with the credit cards; I would not be able pay my employee salaries; have to lay off all my employees; not be able to pay for materials; not finish the jobs we were working; not bid new jobs; default on my mortgages; lose all company and personal credit standing; lose all of my retirement savings… never to retire; suffer financial embarrassment, humiliation, sleepless nights; stress rashes, ear peeling and anal itch… I would have declined American Express’s generous offer.”

All these things are true. American Express cut off the company’s credit without warning or regards to the damages of their actions to the business of All Pro Electric, Inc. its owners and John. American Express then followed up by raising the interest rate on the outstanding balances from 0 to 27%.

This is but one story of the many small businesses that face the death of their businesses at the hands of same the financial giants that “Mom and Pop” bailed out with their tax dollars and paid obscene bonuses to their executives.

The Final Insult: This year All Pro Electric and John Cockerham were sued by American Express in the 17th Circuit Court of Broward County for the outstanding balances on two accounts. The Defendants have countersued American Express for Breach of Contract, Fraud and Negligence.

The Defendants cannot afford a lawyer and have appealed to Florida’s 4th District Court of Appeal (Case # 4D10-2660) for permission of John Cockerham to represent his company in Circuit Court.

If the appeal is denied, All Pro Electric will not be allowed to defend itself and American Express will be awarded its claim… plus legal fees, penalties and its exorbitant interest.

That will be the death of this “Mom and Pop”.

INJUSTICE EXPLAINED

In our judicial system it is a fact that the party with the most money has an advantage. Most cases are a monetary struggle until one side runs out of money for their own attorney and gives up. Can you imagine trying to sue Bill Gates for anything? The government tried it and produced little to show for our tax money they spent. Still the "individual's right" and access to the court is protected and when falsely accused a person can at least appear in court, deny the charges and fight against all odds to defend themselves.

The same is not true for the corporate person. The little "Mom and Pop" company, corporation or partnership, is not allowed to even deny the charges without hiring an attorney. Never mind that "Mom and Pop" cannot afford an attorney because of devastating financial damage done to them by the very same Plaintiff that now sues them for "God's Knows What".

What happens then? The"God's Knows What" charges set forth by the Plaintiff are presumed to be true and accurate and a judgment for "God Knows What" is simply awarded to the Plaintiff.

Most of the States and the Federal Court cheerfully abide by this arcane practice, claiming this best protects the public. Tell that to the 10's of thousands of little business that learn this the hard way and simply go out of business without a whimper.

In my case...

I do not wish to practice law. In fact I despise it. I am doing this and Appeal mostly for the altruistic reason of helping all of the small business throughout the United States in righting this wrong in our judicial system. Of course on the tiny, tiny chance that I prevail against the "Evil Empire"... that is, earn the right to represent my company and actually win my case, I am asking $39,500,000 in compensatory and punitive damages.

This is not a "David and Goliath" situation. It is more like a "Flea and Elephant"... me being the flea and American Express the elephant. The flea has little chance of doing any real harm to the elephant but I will seek the elephant's attention. Somehow I just may find a spot to irritate the elephant until it stomps and trumpets and begs relief.

I know my chances are small but I believe that I should at least be given a chance to defend my "now" two-person company and prosecute its claim for damages. How can the Court actually say that it is better for me and that they are protecting me by not allowing me to engage my adversary. It is best that I just give them what they ask and go out of business? ...OR I COULD PAY $400 AN HOUR FOR AN ATTORNEY AND GO OUT OF BUSINESS IN ABOUT 6 HOURS!

STATUS OF APPEAL

Case #2 Status

On June 25, I filed a Notice of Appeal with the 4th Circuit Court of Appeals in West Palm Beach, FL for the Self Representation (pro se) of my Corporation.

On the same day I filed a Motion of Stay with the 17th Circuit Court in Broward County.

I have no idea what to expect. I am told by people in the know that my appeal and I will be thrown out. I wonder if they will refund my $300. (excuse the scarcasm). If they do not toss me then I must be ready to respond as best I can.

Must go for now... and read the Florida Rules of Appellate Procedure. This promises to be my worst 4th of July ever.

PS: Case #1 is to complicated to explain but I am holding on and plan the following:

1. Enter a revised Counterclaim without All Pro Electric as a party (I had incorrectly made them a party and the Judge said I could not just do that.)

2. Enter a Motion to have All Pro Electric added as a Defendant and Indispensable Party

3. Submit a Counterclaim by All Pro and move to represent the corporation pro se

4. When the Judge denies that, I will move for a Stay of the proceedings until the Appeal (Case #2) on the same subject is heard and a decision rendered --- that is if the Appeal does not get throw out! (I told you it was complicated.)

MOTION TO ALLOW PRO SE REPRESENTATION OF CORPORATION

IN THE CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA

CASE NO. 10 - 08000


PLAINTIFF: AMERICAN EXPRESS BANK, FSB

VS.

DEFENDANTS: JOHN COCKERHAM, INDIVIDUALLY
ALL PRO ELECTRIC SERVICES, INC.


REFERENCE: Motion To Schedule Hearing for June 3, 2010 (attached)

MOTION TO ALLOW PRO SE REPRESENTATION OF ALL PRO

The DEFENDANT, ALL PRO ELECTRIC (ALL PRO), is a licensed electrical contracting business located in Hollywood, FL. I, John Cockerham am the President of ALL PRO and the corporation’s legally authorized representative in all business and legal matters. (See attached Corporate Resolution). As a result of the PLAINTIFF’s arbitrary actions to shut all operating credit to ALL PRO, the company currently has no business backlog, no pending contracts and no employees. The company continues to be marginally operational by servicing customers on an on-call basis for minor maintenance and service repairs.

Currently, ALL PRO does not have any cash-on-hand or credit resources to fund the services of legal counsel in its own defense.

ALL PRO contends that every person and every corporation has equal rights and access to justice under the Constitution of the United States and the Statutes of the State of Florida.

LEGAL ASSERTIONS AND ARGUMENTS

1. A legal Corporation under the law is defined and treated as a natural person.
2. Every person has access to justice without sale, denial or delay.
3. Every corporation has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs.
4. Every person’s rights are guaranteed unless denied by statute.
5. The First Amendment of the Constitution of the United States applies to corporations -- Freedom of Religion, Press, and Expression.

Accepting these assertions for argument sake, one must conclude that a corporate being has the right to do all things necessary or convenient to carry out its business and affairs.

The corporate entity exercises this right via delegated authority to a person to speak, write and act on its behalf in all manner of business to include the making of legally binding agreements, executing promissory notes, buying and selling property and any other business action that can be exercised by that of a natural person.

Part of any personal or corporate business is acting upon one’s legal obligations and with that inherently comes the rights to dispute, to deny, to defend, and when damaged to seek a remedy. In the extreme case when a corporate being cannot afford an attorney, then “How can a corporation do what is convenient and necessary to conduct its business?”

To deny the right of a corporate person of its own defense and representation would effectively negate every legal assertion (cited above), and one could only conclude that for justice obtained, justice must be purchased. This is contradictory to the accepted legal principle and right that justice cannot be denied, bought or sold.

The 14th Amendment of the Constitution of the United States… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution of the State of Florida states Section 21. Access to courts:

“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

This right is derived directly from the Magna Charta.

No right shall be sold, delayed or denied. -- Magna Charta, XXX
To none will we sell, to none will we deny, to none will we delay right or justice.
-- Magna Charta, XXIV

ARGUMENT TO THE CONTRARY

A longstanding and widely practiced rule prohibits corporations from being represented by non-attorneys; consistent with the existence of a corporation as a "person" separate and distinct from its officers and employees. This presumes that the “officers and employees” are an “artificial entity”… a person in the abstract… and therefore the corporate appointment of a non-lawyer for legal representation is an illegal act of practicing law without a license.

And, specific to Florida Case Law Precedents (Unlicensed Practice of Law):

Florida Bar v. York, 689 So. 2d 1037, 1039 (Fla. 1996) (finding that it constitutes the unlicensed practice of law for a non-attorney to threaten suit on behalf of another); Florida Bar v. Gordon, 661 So. 2d 295, 296 (Fla. 1995) (enjoining non-attorney from "[a]ppearing in any Florida court or offering to appear in any Florida court, either expressly or impliedly, as a spokesperson or representative for litigants in any court proceeding"); Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So. 2d 247, 248 (Fla. 3d DCA 1985) (holding that "a corporation, unlike a natural person, cannot represent itself and cannot appear in a court of law without an attorney"); Richter v. Higdon Homes, Inc., 544 So. 2d 300, 300 (Fla. 1st DCA 1989) (finding that a corporation "may not represent itself through non-lawyer employees . . . even where the non-lawyer purporting to represent the corporation is the sole shareholder of the corporation").

The logic of the separation of the corporate person from its officers and employees would no longer seem to hold true in that US Supreme Court decided on January 21, 2010, in the case of Citizens United v. Federal Election Commission that a collection or assembly of people in a corporate form has the Right of Expression as guaranteed by the First Amendment to the United States Constitution. This right is acknowledged for the collection of people (officers and employees), not an “artificial entity” that would necessarily have to employ a licensed lobbyist, lawyer or other party to speak on its behalf.

It follows that if the “collection of people” in the corporate form has First Amendment Rights, then how can it be that this same collection of people does not have First Amendment Rights in the State and Federal Courts of the United States?

Every State is consistent, similarly defining a corporation as a person or an individual, with the same rights to conduct its business. By example, the first sentence of the Code of Alabama states:

(1) Person. The word "person" includes a corporation as well as a natural person. (Code of Alabama, Para. 1-1-1, pg. 1.)

Thereafter, the CODE of ALABAMA (as in the Florida Statues) does not diminish the rights of a corporation from those of a natural person.

The Constitution of the State of Florida states Section 21. Access to courts:,

“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”

The Florida Statutes defines a Corporation as a Person:
Section 440.02 Definitions. (23)

"Person" means individual, partnership, association, or corporation, including any public service corporation.

Title XXXVI Florida Statues, 607.1401
Business Organizations/Corporations Definitions.--As used in this act, unless the context otherwise requires, the term:

(19.) "Person" includes individual and entity.

(11) "Entity" includes corporation and foreign corporation; unincorporated association; business trust, estate, partnership, trust, and two or more persons having a joint or common economic interest; and state, United States, and foreign governments.

Comment: A “person” is defined as an entity and an “entity” is defined as two or more persons (i.e. a collection of people) having a joint or common economic interest.

Title XXXVI, Florida Statues, 607.0302
Business Organizations/Corporations/General powers.--Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including without limitation power:

Accepting that a Legal Corporation under the law is defined and treated as a natural person and that the rights of a person are guaranteed unless certain and specific rights have been denied by statute.

The rights of a person or “collection of people” in the corporate form are not denied by Florida Statues are therefore presumed to exist. However, in Florida and most states the Bar Associations vigorously argue that the corporate person is not a collection of people, but instead a paper, imaginary or abstract entity. For this to be true every reference in State and Federal law would have to be bifurcated in its meaning and application to either the imaginary entity or the collection of people. It would seem obvious that the reference is always to the collection of people as reinforced by the aforementioned US Supreme Court ruling that recognizes a “collection of people in the corporate form” to be protected by the First Amendment. This right is clearly to the people in form of a corporation and by its own authority the corporation (of its people) has the right of expression. This begs the question, “How is it possible to have the freedom of expression everywhere but in a Court of Law?”

For sake of argument: Assuming the corporate person in the abstract is “The Corporation,” then so is any authority by resolution of the corporation the same as the corporation. “The Corporation” has no arms, legs or voice thus to speak for itself in any manner of business does so by corporate resolution of authority to a person. Provided the person acts within that delegated authority, then the person is “The Corporation”. There is no separation of the “authorized” person and “The Corporation”, by evidence that “The Corporation” can have no legal recourse against the person committing the action that “The Corporation” itself authorized by resolution. Likewise the authorized person can have no recourse against the corporation for having given the person the right to act on its behalf. In that specifically authorized act, the “person” (layperson or otherwise) is “The Corporation”. In other words, it is impossible for the Corporation to sue itself; thus the person and the Corporation are one in the same. It follows that the Corporation can then demand equal justice under the law for itself via the person (layperson or attorney) that is authorized by its own lawful corporate resolution.

By application consider the example where a corporation hires an attorney to “represent” the corporation. The attorney does “represent” the corporation in his or her contracted role; however, the person authorized by corporate resolution that hired the attorney is the corporation person itself and should rightly be able to defend itself if necessary or desirable.

Conclusion: Therefore it follows in either theory:
1. The Corporate person is an abstract person
2. The Corporation is a “collection or assembly of people” in the corporate form
that,

“The Corporation” has the right to speak for itself, to conduct its business, enter into lawful acts and contracts, execute its own contract, sue or be sued, deny false claims and accusations and prosecute those that damaged “The Corporation” so long as the authority to speak for the “The Corporation” has been lawfully delegated by corporate resolution.

DISCUSSION OF UNLAWFUL PRACTICE OF LAW

The licensed practice of law is for the protection of the public and to that extent there is no argument. There are two additional reasons, (1.) to keep the courts from being clogged with unlearned people and then, never mentioned, (2.) for protectionism and enrichment of the legal profession.

The unlicensed practice of law seems extreme in that to threaten a law suit for non-payment of debt or to give any manner of casual legal advice, even to your own grandmother, is a felony offense. And for the corporate person to be allowed to conduct every manner of legal contracting, agreement and civil action, except for the defense of its actions, seems unfair and to be unsound in logic and reason. In all cases, the corporate person must pay for justice in the defense of its own actions… except one. The corporate person may represent itself via its authorized (layperson) representative in the Small Claims Court.

This begs the question, “If corporate self-representation is acceptable for Small Claims Court, then why not a higher court?” Either the corporate person is practicing law without a license or not. It seems, however, that the law is arbitrary. When the law suit is of small value, then the corporate person may practice law, but when the stakes are higher in value the corporate person may not practice law, lest experience jail time. It seems that this bifurcated interpretation of “practicing law” exist principally for the enrichment of the legal profession.

How is it possible to conclude that in the case where a corporate being cannot afford an attorney and cannot even make an appearance to deny false accusations; that this could be in the best “public” interest… to give a judgment to the accuser without any defense by the corporation… a collection of people, indeed the “public” by definition.

I argue that the law should stand on principle instead of profit. Self representation by a corporate person is either practicing law in all courts or is not practicing law in all courts.

ADDITIONAL DISCUSSION OF CASE LAW AND PRECEDENTS

Corporate existence implies amenability to legal process. Wilson v. United States, 221 US 361, 55 L Ed 771, 31 S Ct 538. The power of a corporation to sue and be sued includes the power to refer or take any other step that an individual might take to reach a final judgment. Alexandria Canal Co. v. Swann, 46 US 83, 12 L Ed 60. (19 Am Jur 2d Sec. 2170, pg. 88).

According to some authority, an officer of a corporation who is not an attorney may not file an answer, but according to other authority, a corporation can answer a lawsuit on its own behalf through an officer. (19 C.J.S. Sec. 568, pg. 202.) Further reference is made to a Georgia case. Universal Scientific, Inc. v. Wolf, 302 S.E. 2d 616, 165 Ga. App. 752. As reported,

Appellant, through its president, filed its answer pro se, and the trial court evidently viewed that action as the unauthorized practice of law. However, this issue was specifically addressed in Knickerbocker Tax Systems v. Texaco, 130 Ga. App. 383(1), 203 S.E.2d 290, wherein this court held that a corporation could answer a lawsuit on its own behalf through its chairman.

It has been found that a corporation may, through a non-lawyer officer, prepare instruments to which the corporation is a party, and that the preparation of legal documents by a non-lawyer officer on behalf of the corporation does not constitute the unauthorized practice of law. (19 C.J.S. Sec. 568, pg. 202.). Reference is made to an Illinois case, Johnson v. Pistakee Highlands Community Assn, 390 N.E. 2d 640, 28 111. Dec. 473, 72 111. App.3d 402.

Argument: If a non-lawyer officer of a corporation (not an imaginary person) may prepare and execute legal documents by the authority of the corporate being, then the same may arguably prepare and execute a legal complaint, a legal answer, a legal appeal or any other legal document.

In the case of Knickerbocker Tax Systems, Inc. v. Texaco, Inc., 130 Ga. App. 383(1), 203 S.E.2d 290, the court held that a Georgia corporation was entitled to defend an action against it without a lawyer. From the South Eastern Reporter:

[1] 1. Dixon v. Reliable Loans, Inc., 112 GaApp. 618, 145 S.E.2d 771, held that a corporation could file suit on its own behalf without a lawyer. This ruling was based upon the language of two sections of the Annotated Code. One of these was Sec. 9-401, Ga.L.1931, pp. 191, 194; 1937, pp. 753, 754, which defines the practice of law in Georgia. There the court's opinion noted the specific provision the statute which states: Provided, however, that nothing herein contained shall prevent any corporation, voluntary association, or individual from doing any act or acts hereinabove set out, to which said persons are parties..." (emphasis in original.) The other Code section was then Code Ann. Sec. 22-1827, the pertinent portion being paragraph (b) which stated corporations had standing "To sue and be sued in any court of law or equity." When the 1968 General assembly enacted the Georgia Business Corporation Code contained in Title 22 of the Annotated Code it set forth in Sec. 22-202(a) (3)(iii) even broader language than was in the previous statute. The new statute expressly gave corporations the power "To sue and be sued, complain and defend, in all courts, and to participate in any judicial, administrative, arbitrative or other action or proceeding." As this comprehensive legislation was passed three years after the Court of Appeals decision, we deem it incumbent to adhere to the previous ruling of this court in Dixon v. Reliable Loans, Inc., 112 Ga. App.618, 145, S.E.2d 771, supra.

In Georgia, the precedent cases are specific to the core issue of "authorized representation of a corporation by a non-lawyer in any court of law". In Georgia, the issue is argued by appeal and the ruling is specific.

The Florida Statues are virtually identical, in the letter and spirit, to the Code of Georgia. Specifically challenged, the court in Georgia gave precedence to the statutes over the general rule. This was done begrudgingly in that the three judges observed, "...that the lay public would be better served and the general welfare enhanced if the legislature would pass the necessary law forbidding corporations from appearing in propria persona in the courts." Still the Georgia court did as the law demanded and allowed the corporation to be represented by a non-lawyer.

No person (corporation) shall be denied their property without due process of law.

Constitution of the State of Florida
SECTION 9. Due process.--No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.

Freedom of Expression

U S Constitution, Amendment 1 - Freedom of Religion, Press, Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Constitution of the United States, Amendment IX.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Statues of Florida do not diminish the rights of a corporation from those of a natural person. The rights of a person are guaranteed unless certain and specific rights have been denied by statute.

As to legal authority and representation, the corporate person must perform all of it functions and activities via authorized representation. As with a natural person, the corporate person may prepare legal documents and execute these documents on its behalf. The corporate person performs all manner of legal acts in personnel matters, contracts, leases, product sales, stock sales, stockholder matters, banking and tax matters. All of these legal acts may be performed by a layperson that has been duly authorized to act on behalf of the corporation. Like the natural person, the corporate person is not considered to be practicing law because these services are being performed where the corporation has a proprietary interest. This is no different than any other licensed service that the corporate person may perform for itself but not for others.

To presume that an authorized layperson may not defend a corporation is to conclude that the people of a corporation have the legal rights to conduct all manner of legal business except the defense of their actions.

It is argued that the corporation can defend its self, but only through the employment of a licensed attorney. If this is held true, then what about the corporation that cannot afford an attorney? If the natural person, in the same situation, can defend himself, then why not the corporate person? Both the natural person and the corporate person have the same rights, but in the State of Florida it "appears" that the corporate person's right to defend itself may have been usurped by practice and the general rule. If so, the practice should be reversed and the right restored to the people. For a natural person and corporate person to conduct life and business without the legislated mandate of legal counsel, is an inherent right of a free society and guaranteed by the Constitution of the United States and in no case should justice be denied or sold.

WHEREAS, the CROSSCLAIMANT petitions the Court to give precedence to the Florida statutes and to uplift the people's right to defend themselves, individually and corporately, against wrongful prosecution, and to insure that the basic right of access to the courts is not denied to the corporate person that cannot afford to pay for counsel.

MOTION TO ALLOW PRO SE REPRESENTATION OF ALL PRO

WHEREAS John M. Cockerham is ALL PRO’s duly authorized representative, Defendants moves that the Court allow the corporate entity of ALL PRO to speak for itself, not by third party representation, but by its own duly appointed authority to voice its defense, and prosecute its claims of wrongful acts and damages against the PLAINTIFF and to allow John M. Cockerham to represent Defendants in all matters concerning this case.


Respectfully submitted this the 28th day of May, 2010.

___________________________________________
John M. Cockerham, pro se
and as,
President of All Pro Electric
1326 SW 22nd Terrace
Fort Lauderdale, FL 33312
(954) 963-4025

Certificate of Service

The undersigned, John M. Cockerham declares and certifies that a copy of the Answer to Complaint and Counterclaim in reference to CASE NO. 09-66554 has been sent this day via the United States Postal Service to Mr. Drew Beinhaker, Esq. at the office address of Henschel & Beinhaker, P.A., 4060 Sheridan Street, Suite C, Hollywood, Florida 33021and filed with the Clerk of the Court, in the Circuit Court of Broward County, Florida.


_______________________________ ___5/28/10___________________
John M. Cockerham Date

5641 Atlanta Street
Hollywood, FL 33021

(954) 605-9883

3rd Writing 6/23/10

CASE ID / COURT RECORDS

1st CASE DESCRIPTION

Jurisdiction: 17th Judicial Circuit
County: Broward
Case #: 2009-66554-13
Judge: Honorable Jack Tuter

Plaintiff: American Express, FSB
Defendant: John Cockerham

Plaintiff Compliant Filed: November 30, 2009
Compensatory Damages Claimed: $18,899.39 + interest + legal fees

Defendant Counterclaim & All Pro Cross-claimant Filed & Amended: April 16, 2010
Compensatory Damages Claimed: $10,500,000 + legal fees + Attorney fees
Punitive Damages Claimed: $30,000,000

Motion for Self Representation of Corporation: May 28, 2010
Motion for Self Representation Denied (20 days given to find attorney): June 21, 2010
Defendant Counterclaim & All Pro Cross-claimant Denied (20 days to revise): June 21, 2010

Current Actions:
1. Find an attorney for All Pro Electric and refile Corporate Claim as Third Party Claim
2. Appeal ruling denying Self Representation on the grounds of Equitable Relief


2nd CASE DESCRIPTION

Jurisdiction: 17th Judicial Circuit
County: Broward
Case #: 10-08000
Judge: Honorable John J. Murphy III

Plaintiff: American Express, FSB
Defendant: All Pro Electric Services, Inc. and John Cockerham

Plaintiff Compliant Filed: February 18, 2010
Compensatory Damages Claimed: $24,882.62 + interest + legal fees

Defendants Counterclaim Filed: March 25, 2010
Compensatory Damages Claimed: $10,500,000 + legal fees + Attorney fees
Punitive Damages Claimed: $30,000,000

Motion for Self Representation of Corporation: May 28, 2010
Motion for Self Representation Denied (20 days given to find attorney): June 9, 2010
Defendant Counterclaim Dismissed (30 days to revise): June 8, 2010

Current Actions:
1. Find an attorney for All Pro Electric and refile Counterclaim
2. Appeal ruling denying Self Representation on the grounds of Equitable Relief

2nd Writing 6/23/10

Constitutional Injustice

Today I enter the blogosphere world wondering just where this might end up. My only interest is to illuminate a serious defect in the judicial system where the rights of people, especially in a small business, have been abridged.

At this time I am involved in two cases where American Express (68,000 people company) caused irreparable and devastating financial harm to my small business, All Pro Electric (7 people company). After losing everything (all employees, property, assets and home), American Express sues me for damages.

I wish to deny their false claim and defend my company against the judgment they seek. Surely I can do that... we have equal protection under the law; or do we? In fact I cannot make an appearance in the 17th Circuit Court of Florida unless I hire an attorney! (As far as I know, it is this way in all States except Georgia.) It doesn't matter that I don't wish to hire a lawyer... I cannot afford a lawyer!

Now read very slowly and try to grasp the logic and wisdom of our judicial system. This is not about the enrichment of lawyers (wink, wink)... no, no this is for the protection of the public and in this case that is me. The law says that it is better for me not to be able to defend my company and have my adversary (68,000 people company) win a judgment uncontested than to allow me, an unlearned man, to defend my corporation (now "0" person company). In case you missed something... if you cannot even deny the false charges against your business then the charges are presumed to be true and accurate and judgment to the "evil empire" is awarded automatically.

Being a little better than a "C" student from Mississippi I have figured the odds at "zero" if I do nothing, but if I fight this with all of my energy, intellect and might... the odds increase "close to zero". I have chosen the latter course and will chronicle in this blog my journey into the bowels of a judicial hell.

1st Writing 6/22/10

AFFIDAVIT

STATE OF FLORIDA

COUNTY OF BROWARD

Personally appeared before me, the undersigned authority in and for the jurisdiction aforesaid, John M. Cockerham, President of ALL PRO ELECTRIC, INC. (ALL PRO), who by me first duly sworn, stated on oath as follows:

I, John M. Cockerham, am the President of All Pro Electric, Inc. and make this Affidavit from my personal knowledge.

In my capacity as President of ALL PRO, I was responsible for setting up of all three of the ALL PRO credit card business accounts. Having run a business with over 300 employees and 12 locations through the United States, I had always relied upon traditional banking for cash flow and credit cards for only incidentals and convenience. However, in the electrical trade business, service truck electricians needed, virtually every day, to buy gas and make material purchases. Additionally, all of our vendor suppliers took credit cards and this provided us 15 – 40 days float on our money. After talking with American Express representatives on a number of occasions, I concluded that they offered a stable and dependable credit source that could grow with the business, even to unlimited credit. Additionally, American Express offered airline mileage perks that no bank offered. After securing one and then two cards, (with airline and hotel perks) I was offer and accepted a Platinum Card with unlimited credit and extensive perks.

In making my decision to use American Express “exclusively” for my cash flow banking needs, I spoke with American Express representatives and was led to believe that my credit would not be reduced, that I could have multiple accounts, that the accounts were independent and that the accounts would not be arbitrarily interrupted, and that the American Express business account services were ideally suited for my credit and cash flow needs.

Had I been informed that by doing business with American Express, would mean that one day I would get a call that my electricians could not buy any gas with the credit cards; I would not be able pay my employee salaries; have to lay off all my employees; not be able to pay for materials; not finish the jobs we were working; not bid new jobs; default on my mortgages; lose all company and personal credit standing; suffer financial embarrassment; humiliation and sleepless nights; stress rashes, ear peeling and anal itch… I would have declined American Express’s generous offer.

All these things are true. American Express cut off of our company’s credit without warning or any regard to the damages of their actions to the business of All Pro Electric, Inc. and John Cockerham, personally. Subsequently, the interest rate on the outstanding balances was raised from 0 to 27%.

This the 10^th day of February, 2010

______________________________ John M. Cockerham

Sworn to and subscribed before me this the 10^th day of February, 2010.

______________________________

NOTARY PUBLIC

My Commission Expires:

___________________________