Enough Already

I'm now undisputably on record as having condemned Rene Gonzales for his column on Pat Tillman, and ridiculed the UMass Daily Collegian for its handling of the aftermath.

So let me go on record again to say that the reaction of some to his column has gone too far. I've read comments throughout the blogosphere and elsewhere attacking him because of his race and posting his photograph on the Internet.

Rene Gonzales is just a kid. That much I know from seeing the photograph some mature person posted on the web. He expressed an opinion that people disagree strongly with. The appropriate reaction to that is to express your own opinion disagreeing with him, and telling us why. That's how the concept of freedom of speech works in our country.

If you attack him because of his race, or you put his personal, physical safety at risk by publishing his photograph, you are in your own way worthy of contempt also. Pat Tillman died an honorable death. But there is nothing honorable about some of the reactions I've seen to Rene Gonzales' column.

Half-Baked Apologies

Following a fiasco over Rene Gonzales' column (see my last post), The Daily Collegian offered... something, I'm not sure what, as a response to outrage over Mr. Gonzales' column. After mumbling something about the 1st Amendment, the letter concludes, "We cannot... compromise the mission of our publication for the sake of ensuring the constant happiness of our readership," and "We welcome all feedback on the issue, and hope that this represents growth in our relationship with you, the readers." Yeah. Right. Growth in our relationship.

I am a strong believer in the "art" (for lack of a better word) of the apology. There is a such thing as a correct and incorrect way to offer apologies, and not learning the difference can sometimes make things worse than they already are. Some people understand this. Others don't. The staff of the UMass Daily Collegian does not. I sent them feedback, but don't know if they'll bother publishing it, so here it is:

Your note to your readers vaguely refers to other individual columns disagreeing with Mr. Gonzales, and states more than once that his opinion "does not reflect the opinion" of your editorial board. Yet you can't seem to make the ultimate leap and just come right out and SAY it: you disagree with his opinion, and are sorry for the pain it caused to our soldiers and members of their families, not to mention the Tillman family in particular. Just SAYING that would not require you to violate the 1st Amendment. Why can't you do it?

The only thing worse than a failure to apologize is a half-baked apology. I'm not exactly sure what the point of your letter was and what you hoped to accomplish by publishing it. If it was to demonstrate the insincerity of your editorial board, you succeeded.

Update: An anonymous reader posted the following as a comment to my post. Here it is in its entirety:

As an employee of The Massachusetts Daily Collegian, I would like to comment on the criticism that the apology printed by the paper following Rene Gonzales' column was "half baked."

First of all I would like to state that, in my work for the Collegian, I am in no way responsible for any editorial decisions. This includes the printing of Gonzales' column as well as any responses that may have been submitted by you or anyone else. (Keep in mind that this is now a national issue and we have received letters to the editor from countless readers across the country. Don't take it personally if your response doesn't print.) I would also like to state that the Editorial/Opinion articles that appear in the pages of The Collegian can be submitted by any member of the student body at the university and, as a result, I have never met, nor do I have any close ties to Mr. Gonzales.

That being said I would like to state that Mr. Gonzales' column was highly disrespectful in my eyes, but I will defend his right to voice his opinions. As far as the apology that was printed following this controversy, I don’t see it as being "half baked" at all. It sounds as though the kind of opinion-based apology you are looking for is one that should come from the column's author, not the Collegian editorial board. I would be surprised to learn of any journalistic publication (at least any that attempts to remain impartial) that would speak out against the opinions of its columnists beyond saying that they do not reflect the opinions of the publication.

Since Wednesday, critics of Mr. Gonzales’ article have been flooding mailboxes not just at the Collegian, but all over campus. Many of these opinions have been hateful and downright ignorant, generalizing the entire student body of the university as being un-American and irresponsible. As a student, I am thankful to you that your views have been presented in a professional manner.

I am in no way speaking for any other employee of the Collegian or any member of the student body at the University of Massachusetts, Amherst.
Thanks

-Anonymous

Our soldiers are "idiots"

By way of Slithery D comes this piece of editorial brilliance by Mr. Rene Gonzales of the University of Massachusetts Daily Collegian. The piece is entitled, "Pat Tillman is not a hero: He got what was coming to him". I didn't know Pat Tillman personally, but we went to college together and I followed his career until his death.

Some choice excerpts from Mr. Gonzales:

I've been mystified at the absolute nonsense of being in "awe" of Tillman's "sacrifice" that has been the American response...

They should call Pat Tillman's army life "Rambo 4: Rambo Attempts to Strike Back at His Former Rambo 3 Taliban Friends, and Gets Killed."

... in my neighborhood in Puerto Rico, Tillman would have been called a "pendejo," an idiot. Tillman, in the absurd belief that he was defending or serving his all-powerful country from a seventh-rate, Third World nation devastated by the previous conflicts it had endured, decided to give up a comfortable life to place himself in a combat situation that cost him his life. This was not "Ramon or Tyrone," who joined the military out of financial necessity, or to have a chance at education. This was a "G.I. Joe" guy who got what was coming to him. That was not heroism, it was prophetic idiocy.

Tillman, probably acting out his nationalist-patriotic fantasies forged in years of exposure to Clint Eastwood and Rambo movies, decided to insert himself into a conflict he didn't need to insert himself into. ... He wasn't defending me, nor was he defending the Afghani people. He was acting out his macho, patriotic crap and I guess someone with a bigger gun did him in.

These words have inspired a predictable amount of rage by readers of his column. But I prefer not to focus on the simple outrageousness and lack of respect he shows. Others will do that more than sufficiently, I am sure. No, I would rather have Mr. Gonzales (or anyone who agrees with him) consider the sheer ignorance and lack of rational thinking underlying his opinion. That lack of rational thinking stems from his failure to acknowledge, and respect, and feel grateful for the true and correct role of the American soldier in protecting our democracy.

Anyone with even a cursory knowledge of our system of government knows that the individual members of our armed forces are not policy-makers. Under Article II, Section 2 of the U.S. Constitution, sole and exclusive authority over what our military does and how it does it lies with its Commander in Chief, i.e., the President of the United States. ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States"). Thus, when young men and women join the U.S. Army, as did Tillman, they subject themselves to a strict code of allegiance that requires them to obey, without question, the commands of their superior officers leading all the way up to the President himself.

Without this power vested in the hands of our President through the sacrifices of our soldiers, our Constitution, our laws, our liberties, our way of life, all of these ideals are meaningless. Our Constitution may "guarantee" an African-American student the right to attend a public university, but if that right cannot be enforced through the use of power--and I mean raw power, demonstrated by having the muzzle of a gun pointed directly at you by a 19-year old kid who will shoot to kill if you refuse to obey--then the "right" is illusory and meaningless. Time and again, this raw power provided to our government by the sacrifices of our soldiers has been used to protect the weak, the powerless, and the oppressed.

I imagine that most of the soldiers President Kennedy and President Eisenhower called upon to protect African-Americans in my links above were, frankly, white Southern boys. Many of them might have had objections to their commanders' orders for political and social reasons. But they obeyed, without exception, without question. They complied with their duty. Period. And it was JFK's knowledge that those soldiers would do as they were told that gave him the initial confidence to make the executive decision that he did.

The President's power, given to him by our soldiers, can be abused and misused, and history has proven that. But there is a difference between attacking the President's use of his powers on one hand, and on the other attacking the individuals who sacrifice to give him--and ultimately us--those very powers to begin with. This is a critical distinction I thought our society learned to make through our experience in Viet Nam. Apparently, Mr. Gonzales, who is a "graduate student" at UMass, missed that lesson.

Gettin' down and dirty

Kemplog, a solo practitioner in Indiana, suggests that big firm life is rife with "interoffice politics, competition, and backstabbing," and "rivalries, conflicts, and competitions."

Is that true? The answer, as with anything in the law, is that it depends. Law firms, like any corporate entity, have their own individual cultures. I have friends in firms of different sizes who are, frankly, very unhappy because of the very things Mr. Kemp identifies. But I also have other friends who (like me) experience very little of those things and are quite happy.

But Mr. Kemp makes another point, suggesting that dealing with the sheer size of big firms "strikes me as a little unproductive." I actually come from a small firm background myself. In fact I clerked for a while, in law school, for a solo practitioner. There is certainly a lot of give and take when you compare big firm vs. small firm productivity, but from this associate's point of view I will say this: since I started working at a larger firm, I haven't had to speak to a single process server or spend one second "formatting" a single document. While working for a solo, I even had to physically drive down to the courthouse and physically file pleadings myself on occasion. Before chastizing me for thinking I'm "above" such tasks, consider that the relatively high fees attorneys are paid by their clients do not make such filing runs a highly efficient use of their time.

Being part of a bigger operation leaves me more time to focus on the pure practice of law, rather than the mechanics of law practice that others are better qualified to do than me, like file clerks, secretaries or paralegals. Am I glad I got my hands dirty at the small firm and with the solo? You bet I am. It made me a more well-rounded attorney. Unlike most of my colleagues, I actually know where the counter is at the local courthouse to physically file the motions that I author. But I'm also glad that, having gained that experience, I'm now allowed to focus more of my energy on what I truly enjoy: writing motions, arguing in court, taking depositions, and preparing for trials.

More on dealing with opposing counsel, and extensions

In response to my last post, Scheherazade counters, probably correctly, that I make things sound a lot prettier than they actually are, when it comes to the relationships between opposing counsel. But she makes another point that's worthy of emphasis: every young lawyer out there will gradually develop their own, individual style of doing business. I honestly don't believe that one style is necessarily "superior" to another, because I know successful litigators who have completely different approaches. My approach, which is still evolving with time, is to inject some humanity into my dealings with other counsel. Mind you, this doesn't work with all attorneys. Some attorneys are simply jerks, and I could write pages about them (and I probably will here, eventually). They receive different treatment from me altogether. But for the smart ones who realize that there's no point in fighting unless we're in front of a judge or a live jury, life is a lot better when it comes to working our way through a case.

On that same note, I was shocked to read that someone Sherry knows endorses this statement: "I don't ask for extensions, and I never agree to them. If you know these ground rules at the start, we'll get along fine." The fact is that, if I had counsel tell me something like that, my eyes would narrow, I'd holster up six-shooters by my side, we will not "get along fine," and counsel had better prepare himself for litigation hell for the coming 12-24 months it may take to end this case. Such a statement will automatically land him on my blacklist, not to mention the blacklist of my partners and anyone else working with him in my entire firm.

Frankly, I think it is simply poor lawyering to bind oneself to deadlines without allowing for flexibility in light of the routine quirks and bumps in the road that all litigators encounter. I have never, not once, litigated a case where counsel did not need one extension of one kind or another for various reasons, most of which were not the fault of counsel. Clients leave town, ignore phone calls, and take too long to answer questions needed to complete discovery requests. Witnesses lose documents after promises to send you copies. Emergency hearings in separate cases pop up. I wonder what such an inflexible attorney would do, for instance, if he's got a Rule 26.1 disclosure statement due 3 days from now, when suddenly a federal district court judge in a separate case orders him to write an extensive brief on an emergency issue within 2 days?

If that happens to you, you had better hope that you're on my good side.

Update: Anonymous Lawyer socks it to me, I think, for getting too cozy with the enemy.

Fuzzy wuzzies about opposing counsel

[I credit Scheherazade for triggering this thought]

I think there is something very special about the relationships between counsel on opposite sides of a case in litigation. In fact, I really think that this aspect of lawyers shows our humanity more than any other, at least as far as litigators are concerned. This is because, no matter how contentious, vicious, and antagonistic the relationships between the clients may be, and how controversial the case itself may be, I still tend to get along very well with my opposing counsel. And yet, this doesn't prevent me from going into a courtroom and ripping counsel to shreds through legal arguments, or being aggressive when necessary during a deposition (and vice versa).

This isn't an easy balance to find or even to understand, especially for non-lawyers. One's first "human" instinct when you are "adversaries" is to hate the enemy. Thus, there is an instinct to reflexively treat opposing counsel with contempt in your dealings with him. But somehow, you learn how to resist that temptation, and I'd say I've learned it mostly from my opposing counsel themselves. Through them calling me up to chat about last night's ball game before talking business, I slowly saw and learned to differentiate between them as people and them as advocates for their clients.

But this leads to a second instinctive and reflexive emotion within most non-lawyers, which is to continue being overly nice to people you're friendly with. That doesn't work in litigation, because your client does not pay you to be a softy. Just because you get along great with an attorney, for example, doesn't mean you're going to waive a statute of limitations defense that could get your client out of a case, because the other "nice" attorney inadvertently missed a deadline. (Note that I'm not talking about professional courtesy and ethical conduct, which is a whole other subject. I don't care what the client says, I will almost never refuse to grant a reasonable request to extend a deadline on a routine discovery response.)

Most litigators have found that perfect balance, and I think it speaks volumes about the true civility of our profession despite our terrible societal reputation. I am able to enter a room where a deposition is about to take place, where the other lawyer's client is ready to kill my client, where the other lawyer's legal arguments are nonsense, and I am preparing a summary judgment motion that will make a complete ass of him in front of a judge in 2 weeks... and still laugh it up with counsel about anything. It is simply understood by the 2 of us, without having to say it, that he's just doing his job, I'm just doing mine. We're still human and we reserve the right to enjoy intermingling with other members of our own profession. Clients rarely get that, so we try and shield them from it, but it's the truth.

Gross

This post is about the most embarassing moment I had in law school.

I was seated in a small classroom for my Employment Law class, as a 2L. Next to me was a 3L who I didn't know. On this particular day, I felt like crap. My nose was stuffed and my throat was itchy. I was sneezing a lot.

I really am not sure how to accurately described what happened, because frankly I'm not sure how it happened. Of this I am sure: my body had two "incidents" that occurred at the exact same time. I'm pretty sure that one such "incident" was a sneeze. The other "incident" is harder to identify, but it was either a cough, a yawn, or a combination of both (so maybe there were 3 incidents). If one of these had happened alone, I could have handled it without a problem, but fate had something different in store for me that day. My head felt a sudden flurry of activity within the space of seconds and before I could properly react, it happened. Now bear in mind that everything I'm describing here happened within milliseconds: first, a sneeze came on; then, a sudden and almost violent itch struck the back of my throat; and finally, my mouth was suddenly yanked open by forces unseen, without giving me the time to cover it. All of these things culminated to simultaneously produce (during a very silent moment in the lecture, of course) (1) an odd noise that sounded like something between a puppy yelping in pain and a bull snorting, and (2) a greenish blob exiting my mouth, flying through the air at high speed and landing squarely on the right cheek of the 3L sitting next to me.

I looked at him in horror. He looked at me in horror. I kind of mumbled under my breath, "Scuse me." But seriously folks, how do you excuse yourself for something like that? You can't. It's literally inexcusable. He, stunned into silence, took a napkin sitting next to us and wiped his face. And the class went on. Everyone else pretended like nothing had happened. So I turned the page of my textbook, and I pretended too.

I was shocked, by the way, when I managed to eventually befriend that 3L as the semester wore on. By semester's end when he had finished his last class of law school ever, he and I and a few others actually went out to a celebratory dinner together. He never mentioned the "incident" from Employment Law the entire time I knew him.

The bastards respond

Yep, that's right: C2 Media, Ltd. has responded to my demand letter, albeit one day late. Here is their response:

Dear Sir or Madam:

In the terms and conditions of any of our software products it is clearly stated that we grant you a free license to use the software and by installing the software on your computer you agree to use our search services in your web browser. Any and all changes made to your system are clearly stated in the terms and conditions and are fully un-installable via the Add-and-Remove Programs option available from the Windows Start Menu--Settings--Control Panel--Add/Remove Programs.

In the 'Add / Remove Programs' list, look for 'Window Search', 'Window Searching', 'Lop.com', 'LOP SEARCH', 'Browser Enhancer', or 'Ultimate Browser Enhancer' from the menu to run the uninstaller.

If you've tried the above steps and the uninstall is still unsuccessful, try disabling your anti-virus software, Ad-aware, Sophos, and other programs of that nature. Re-download the uninstaller, then run it. Ad-aware et al seem to interfere with the uninstall process. If disabling that software allows you to run our uninstaller successfully, please tell us or email the software company in question and tell them they need to fix their software.

- Additionally a separate uninstall program may be downloaded here:
[deleted to spare readers from inadvertently downloading more crap]

This is a new universal uninstaller and will remove any components, such as the toolbar.

If none of these suggestions solve the problem, try reinstalling the LOP software, then running the uninstall again.

Please let us know if we can be of any further assistance,

[name withheld],
Lop.com Customer Service

My hastily-written response:

Dear [name withheld]:

1. Please be advised that I did not at any time "install your software on my computer." Whatever software from your company was installed on my computer, was installed without my consent or knowledge through manipulative and deceptive technology that your company employs. Accordingly, I could not have "agreed to use your search services in our web browser" and I am not bound by any purported contractual agreement between me and your company under black-letter principles of [my state] contract law. I am aware of your company making this defense in response to claims by angry consumers. In my professional legal opinion, however, such a defense will not withstand judicial scrutiny in an actual court of law.

2. The law of my state requires me to comply with a duty to mitigate my damages. In compliance with that duty, I will attempt to use the suggestions you have provided me for removing your software from my computer. Please note that I do not believe that downloading additional software from your company (new_uninstall.exe) is an acceptable solution. Nor is "reinstalling the LOP software" an acceptable solution. I will attempt to use your Windows Start Menu suggestion, and report back to you as to whether it works or not.

3. Please send me a full copy of the contract you claim I am bound by, since I have never seen it before.

Thank you for your time and attention.

By the way, I've already tried using the Windows Uninstall program without success. But I'll give it another shot.

Blurmf

The Internet is truly an amazing tool. While taking a break from reading 450 pages of police reports (oh joy), I decided to conduct totally random searches of incomprehenible, nonsensical, gibberish words. These are words that my kid brother and I used to babble about when we were little brats bored out of our minds, while sitting at nice restaurants or at the boring home of our parents' friends. But it turns out such great words are becoming extinct in Juvenile Fantasy Land, because they've all been assigned to dull, grown-up definitions. I can't imagine what I would do if I were a little kid these days. Take these words, for example:

Ooga is now the Ohio Oil and Gas Association.

Booga is some weird art company.

Naturally, Ooga Booga is also taken, by an Australian clothing company.

Mooomba is a ski boat company.

One of our all-time favorite nonsense words, Blurmf, is of all things the name of an Italian blog.

Thank God Gulluppoo isn't taken, but Gallapoo is the last name of some guy who sells bodybuilding supplements on the web.

Glippy has something to do with an Argentinian newspaper story entitled "Las aventuras de Glippy".

Blippy is some very scary looking purple-colored alien thing (Warning: Disturbing Image) that would probably give me nightmares if I saw it as a kid.

And Bumba is an African god. But Bumba is also the Bowie-Upper Marlboro Beekeepers Association, located in the state of Maryland.

Back to work. Bumfat. (Brisbane Medieval Fayre and Tournament).

Mock trial experience

Sorry for being so damn unoriginal, but Anonymous Lawyer cracks me up on a regular basis and this excerpt nearly caused me to snort my morning coffee out my nose:

whenever someone has "mock trial" listed on their resume, I like to ask them if they enjoy being in a courtroom. Because if the answer's yes, guess what? You're not working here, because you're not going to see a courtroom for four years. But if you're on the "mock document review" team, you've got an offer on the spot.

Having a Mock Document Review competition really wouldn't be a bad idea at most upper tier law schools, or as a mandatory requirement for anyone finishing in the top 10% of their class anywhere.

Afterthought: In a comment to my post, the editor of Neo Tokyo Times (a pre-law student) asks a pertinent question that deserves some elaboration on my part:

Do upper tier graduates tend to do work that only involves document review? Is that the prestigious assignment I can hope for? ...

Doesn’t anyone graduate from fancy-pants schools and then become a brilliant and charismatic trial lawyer, whose skill set includes charming juries and judges alike?

The answer to the last question is: No, but let me qualify that. If you are from an upper tier (let's say, Top 20) school, and/or you graduate from the top 10% of your class, the odds that you will join a large firm in a big city are quite high, compared to graduates of lower-ranked schools or with average grades. If you choose not to join such a firm, my comments here do not apply to you. So let's just set aside for a moment everyone who chooses to (a) practice criminal law (prosecution or defense), (b) practice public interest law, (c) join the U.S. Attorney's Office (civil or criminal divisions) (d) join smaller law firms, or (e) work in a smaller city. That's a lot of categories, but I still think it leaves well over 50% (probably over 75%) of all top law graduates. And of those remaining top law graduates, for the most part, all join fancypantsy "prestigious" law firms in America's biggest cities. Some practice transactional law so you can automatically give them the boot. The rest practice civil litigation.

Typically, such a graduate does not become a "brilliant and charismatic trial lawyer, whose skill set includes charming juries and judges alike." In fact, I think very few civil litigators who have graduated within the past 5-10 years meet that description. I know many, many civil litigators who are partners and were trained in an older generation of lawyers who are awesome trial lawyers. But they are a dying breed, and this phenomenon is simply not true of new lawyers anymore.

I have seen this phenomenon at work. For example, at the small firm I once used to work at, one of my partners was a former biglaw associate with over 30 years of real civil litigation/trial experience. In one case that went to a jury trial, I saw this partner ("Old Jim") go up against another well-reputed partner with about 9-10 years of experience at a prestigious firm ("Bob"). Watching them go up against each other was one of the funniest damn things I've ever seen. Bob was no incompetent schmuck, and he had handled the entire litigation of the case extremely well up to the jury trial. But once these guys found themselves in the heated atmosphere of a full-blown jury trial, Bob just didn't know what hit him. Old Jim had the time of his life.

The problem is that back in Old Jim's day, civil litigators went to trial all the time. Today, civil litigators spend 99% of their time on pre-trial activities (which by themselves are something you can become an expert on, don't get me wrong), in cases which end up being settled. Of cases that can't get settled, many are sent to arbitration. So, the fast-paced, high energy, adrenaline-pumping, no-time-to-think battlefield that is a typical jury trial has become a totally foreign land for most new civil litigators. If you want that kind of experience, don't go to biglaw, and don't whine about not being paid a six figure salary. (Yes, I do know people who whine about that).

Sue the bastards

In case anyone's wondering, I am dead serious about suing the bastards at C2 Media, Ltd. of London, England. From reader comments and a few Google searches, I've unearthed several articles and references (Spywareinfo and doxdesk) to this company's practices.

As the cliche goes, I'm not making a federal case out of this. I will file suit in a small and informal state court that has limited jurisdiction over low-dollar-value claims only. If I secure a judgment, I'll seriously look into finding British counsel to help me enforce it.

It took me about 15 minutes to research the elements of a simple complaint alleging the tort of trespass to chattels, which is the principal theory of liability I have against this company. The Restatement of Torts defines it as follows:

One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or
(b) the chattel is impaired as to its condition, quality, or value, or
(c) the possessor is deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

The bolded portion is obviously the theory I maintain here. The Restatement's comment on subsection (b) is as follows:

The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference. [...]

An unprivileged use or other intermeddling with a chattel which results in actual impairment of its physical condition, quality or value to the possessor makes the actor liable for the loss thus caused. In the great majority of cases, the actor's intermeddling with the chattel impairs the value of it to the possessor, as distinguished from the mere affront to his dignity as possessor, only by some impairment of the physical condition of the chattel. There may, however, be situations in which the value to the owner of a particular type of chattel may be impaired by dealing with it in a manner that does not affect its physical condition. Thus, the use of a toothbrush by someone else may lead a person of ordinary sensibilities to regard the article as utterly incapable of further use by him, and the wearing of an intimate article of clothing may reasonably destroy its value in his eyes. In such a case, the intermeddling is actionable even though the physical condition of the chattel is not impaired.

There are a few seminal cases applying the tort of trespass to chattels in the Internet context. One is EBay, Inc. v. Bidder's Edge, Inc., 100 F.Supp.2d 1058, 1071 (N.D. Cal. 2000), in which EBay successfully sued for injunctive relief against a company which used a "web crawling" program to access EBay's servers to search for information. See also CompuServe Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015 (S.D. Ohio 1997). The other is a more controversial opinion by the California Supreme Court that actually dismissed the trespass claim, Intel v. Hamidi. The dismissal was based, however, on a finding that the alleged trespass by Hamidi was negligible and harmless to Intel, and not on a rejection of the trespass theory to Internet cases in general.

Anyway, eventually and when I have some free time, I'm going to have to figure out how to accomplish service of process in England. If anyone has any advice, feel free to drop me a line.

Update: A company I contacted agreed with me that it is better to be more conservative and ensure more than the bare minimum service requirements suggested by US courts, to avoid future problems in enforcing the judgment under UK law. For a total of $250, this company will accomplish service in compliance with the more stringent requirements of the Hague Convention, using the UK's Central Authority to serve the defendant rather than regular mail. The entire process will take up to 6 months. That's not a bad deal at all. Just $250 buys me this company's knowledge and experience in complying with the Hague Convention, FedEx costs and other mailing costs, fees for preparing affidavits of service, and everything else I need.

A job well done

To avoid any illusions (that I'm perfect, or like to brag), as a young associate I still have a LOT of learning to do. I make a normal amount of mistakes, cause a normal amount of confusion on issues I deal with, and get stuck on a normal number of occasions as I work my way through various cases.

But a job well done is a job well done. Yesterday, I submitted a legal memorandum analyzing a fairly complex and abstract issue to one of my partners. He read it over while I sat in his office, looked up at me with his glasses perched on the tip of his nose, and asked, "Are you sure about this? It doesn't sound right." We then launched into a discussion of 15 minutes or so about the merits of my analysis. His gut instinct (always listen to your gut instinct, separate and apart from what your in-depth research tells you) told him that my conclusion was just too good to be true. I, having spent some 8 hours on the project compared to his 30 minutes or so, was convinced I was right and didn't budge. I jokingly asked him if I could write a dissent at one point when it seemed like he was basically just going to "overrule" my conclusion.

Ultimately, he decided we should send my memo over to one of our firm's big guns. This is another partner who is one of our state's foremost authorities on this particular subject matter. When this partner looked it over yesterday afternoon, he called to tell me that he was concerned about 2 specific conclusions I made, and wanted to do some more research before deciding whether to bless the memo with his stamp of approval.

This morning, he called me into his office.

"I looked at your memo again, in great detail. I think you are right, I think the memo is very well done, and it has my blessings. Good job."

When I conveyed this to my first partner, he gave me the same look he had yesterday. "So what you're telling me is, Big Gun thinks you're a lot smarter today than you were yesterday?"

"Yup," I told him with a sheepish grin.

Nothing like heading into the weekend on a high note.

Lop.com beware

I am not particularly tech-savvy, but somehow, a website has managed to invade our home personal computer. This is true even though we've invested in McAfee virus protection software and keep our subscription current. Basically, every time we log on to the Internet from home, our homepage is automatically set to be this one. When we change our homepage to Google.com, it switches back the next time we turn the computer on. Sometimes when we go to Google-search something, the response to a query comes back with a "Lop.com" page again, incorrectly telling us that the page we seek is not working (even though it actually is). We have deleted all our cookies, changed our security settings, and done every standard step I could think of. Nothing works.

Enraged, I looked up the corporate information for these bastards and discovered they are a company based in London, England. I formulated a very nasty cease and desist letter and told them that if they don't send me very clear, specific instructions on how to purge our computer of their filthy presence, I will sue them in a local court of law, and enforce the judgment in the UK in accordance with international law.

The funny thing is that I'm dead serious. My state has jurisdiction over this company because of its interference with my computer. Chances are that it will never respond to my complaint. I will probably secure a default judgment. And then I will seriously look into finding a friendly colleague in London who can help me enforce it.

Can you see me foaming at the mouth yet?

It's raining chocolates!

It must be Friday.

I received a gift of chocolates yesterday. Upon entering my office, I decided I wanted to eat one. I struggled with the box for a couple of seconds, deciding ultimately to resort to the use of brute strength to open it. After putting up one second of resistance, the box basically exploded open. It was really quite amazing to see an entire... how can I describe it... spray of little chocolates come flying out of the box, high into the air, scattering all over my desk, all over the floor, and everywhere in my office. I stood there for about 10 seconds, stunned by the sight, and by how incredibly retarded I can sometimes be.

This was my very, very first act of the day upon entering the office, and the day hasn't even begun yet. God help my clients.

Emasculate Me? Prepare to Die

As he very often does, The Curmedgeonly Clerk initiated a discussion about law that pulled me back into my law school days, where I enjoyed some of the most stimulating conversations about law I've had. His topic this time was the "heat of passion" defense, as applied in the case of a transsexual murdered by two men who originally thought he was a women and had sex with him. For the unacquainted, the heat of passion defense essentially serves as an excuse for a defendant's murderous conduct, allowing his conviction to be reduced from intentional murder, to the lesser offense of manslaughter. The Clerk's comments that inspired my comments were made in the context of such a defense, as follows:

It has been fashionable for some time now for folks of liberal sociopolitical persuasions to regard a significant portion of the population as being irrational and psychologically unhinged where homosexuality is concerned. Such "homophobia" is not confined to a statistically insignificant portion of the populace. For example, polls show varying but substantial support for various constitutional proposals designed to address a perceived homosexual threat to the institution of marriage. Given the liberal paradigm that contrues opposition to homosexuality as a product of fear and revulsion, the defendants' proposed murder defense seems neither subjectively nor objectively implausible.

I have no idea how the "liberal paradigm" or "folks of liberal sociopolitical persuasions" have anything to do with this repugnant defense. Here's an excerpt from my initial response:

The history of the provocation defense shows otherwise, and pegs the blame for this pathetic excuse for murderous behavior on conservatives, not liberals. Several generations of old, white, conservative, male judges have carved out a jurisprudence of what I call "provocation based on attacks on one's masculinity." These cases ... have recognized a provocation defense in what I noticed to be a very interesting pattern. If a man caught his wife sleeping with another man and killed the lover or the wife, the defense was permitted. If a man was propositioned by a homosexual and killed the homosexual, the defense was permitted. The same is true in this case.

What do all these cases have in common? Easy: they all involved a suggestion by the victim that put the masculinity of the male defendant into question.

This is not a by-product of liberalism. It's a by-product of the good ol' boys (albeit, good ol' insecure boys) network in full force and vigor.

CC responded. For the sake of attempted brevity, let me excerpt the most interesting part of his response here:

Your articulation of the rule posits that the "heat of passion" defense exists merely to excuse male behavior. I think this is manifestly mistaken given the myriad contexts in which it is applied. Consider, for example, "heat of passion" defenses put forward in domestic violence cases in which wives have killed their husbands or the like. See, e.g., People v. Darbe, 62 P.3d 1006, 1008-09 (Colo. App. Ct. 2002) (daughter convicted of heat of passion homicide in slaying of abusive father); see also Brooks v. State, 630 So. 2d 160, 163 (Ala. Crim. App. 1993) (noting "that other jurisdictions considering this issue have found provocation and heat-of-passion manslaughter instructions to be appropriate in prosecutions of battered victims who kill their batterers" and collecting some cases). Those cases are hardly examples of shielding someone's imagined fragile masculinity.

The "heat of passion" defense necessarily takes into account anything that figures in an otherwise reasonable person's behavior. But its willingness to do so is merely a descriptive necessity, as the rule takes into account societal norms. However, the rule concerning "heat of passion" does not say anything about society's values (whether concerning wounded masculinity or something else) in a normative sense. The defense just recognizes that the state of mind and level of intentionality differ where cold-blooded murder and hot-blooded manslaughter are concerned. What is sufficient to make one "hot-blooded" is a product of societal understanding, not judges, old, white, or otherwise.

I appreciate CC's well-reasoned response, and he makes some valid points but still falls far short as to my main argument that this defense is centered on the notion that anyone who dares put a man's masculinity into question, deserves what's coming to him or her. For one thing, we know that CC's statement, "the rule concerning 'heat of passion' does not say anything about society's values" is simply not accurate, because the rule has an objective component to it, which CC himself cited to in his original post:

"... heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." People v. Steele, 120 Cal. Rptr. 2d 432, 449-50 (Cal. 2002) (emphasis added).

The Michigan Court of Appeals made a similar observation:

In determining whether provocation [is] adequate and reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard--unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper not arising from wickedness of heart or cruelty of disposition. People v. Gjidoda, 364 N.W.2d 698 (1985), quoting Maher v. People, 10 Mich. 212 (1862).

As these courts acknowledge, it simply isn't enough for a defendant to subjectively be so inflamed by a set of circumstances that he in truth and in fact lost control of his emotions, and committed his murderous deed. His having been aroused to such a degree must be objectively reasonable. And who evaluates whether a particular set of circumstances might qualify as "objectively reasonable"? Before the jury ever does, it's the court, of course. A defendant doesn't automatically get a jury instruction from the court just because he asks for it. For example, Serial Killer Smith could ask the court for a "heat of passion" instruction because, each time he saw one of his victims, his insatiable appetite for tasting human flesh so consumed him (no pun intended) as to overtake his rational thinking. This might have been the actual truth underlying Smith's behavior from his subjective point of view, but under society's values, it is patently unreasonable by objective standards and the court would refuse such a jury instruction.

Thus, whether the acts of an unfaithful wife can constitute sufficient excuse for a murderous husband under the law, is something courts have decided, in the affirmative of course. "A spouse's adulterous conduct can serve as sufficient provocation to reduce a homicide from murder to voluntary manslaughter." Goforth v. State, 523 S.E.2d 868 (Ga. 1999); State v. Thornton, 730 S.W.2d 309 (Tenn. 1987); Commonwealth v. Rodriguez, 731 N.E.2d 71 (Mass. 2000); Commonwealth v. McCusker, 292 A.2d 286 (Pa. 1972).

Courts are perfectly free to reject such defenses if they see fit. They have done so before. In Commonwealth v. Carr, 580 A.2d 1362 (Pa. Super. 1990), for example, the court was faced with the vile defense that the defendant was "provoked" into killing two lesbian lovers simply because he witnessed them making love. The court responded:

The passion which will reduce an unlawful killing to voluntary manslaughter must be caused by legally adequate provocation. The test for determining the existence of legally adequate provocation is an objective test...

The sight of naked women engaged in lesbian lovemaking is not adequate provocation to reduce an unlawful killing from murder to voluntary manslaughter. It is not an event which is sufficient to cause a reasonable person to become so impassioned as to be incapable of cool reflection. A reasonable person would simply have discontinued his observation and left the scene; he would not kill the lovers.

(emphasis added)

Not all courts view the issue the way this Pennsylvania judge did. To this day, courts have given murdering defendants the benefit of a jury instruction based on nothing more than the simple fact that a homosexual made an advance on them, which enraged the defendant enough to commit murder. Courts allowing such an excuse include State v. Skaggs, 586 P.2d 1279, 1284 (Ariz. 1978) (allowing instruction on provocation); Walden v. State, 307 S.E.2d 474, 475 (Ga. 1983) (jury instructed on voluntary manslaughter); People v. Saldivar, 497 N.E.2d 1138, 1139 (Ill. 1986) (defendant found guilty of voluntary manslaughter where parties stipulated that victim made a homosexual advance); People v. Lenser, 430 N.E.2d 495, 498 (Ill. App. Ct. 1982) (allowing instruction on voluntary manslaughter); Commonwealth v. Medeiros, 479 N.E.2d 1371, 1375-76 (Mass. 1985) (even assuming victim's homosexual advances constituted reasonable provocation, defendant was not entitled to an involuntary manslaughter instruction).

If anyone can find a single case in the United States in which a man's unprovoked advance toward a woman led to a court sanctioning such an advance as a defense to murder, please let me know.

A final point. CC interestingly points to the battered women defense as a supposed example of how the law treats female rage equally to male emasculation. I say "interestingly", because the battered women syndrome only applies when a woman is violently, brutally and repeatedly assaulted by a male abuser over a course of several years. In other words, a woman has to endure decades of broken bones, battered skulls, black eyes and scars before she gets a "heat of passion" defense. A man, on the other hand, need only be propositioned by a homosexual or subjected to viewing his wife having sex with someone else, and his excuse is handed to him on a platter.

The lesson to be learned here is quite simple. If you question the masculinity of a man, you get what's coming to you. This rule of the common law brought to you by several generations of predominantly male judges. All liberal, I'm sure.

Goofin' off

I share my legal secretary with another attorney. Today (for Sec'y's Day) the 3 of us exchanged a bunch of emails in trying to set up a lunch me and Other Attorney will take her to later this week:

Other Attorney: Secretary has [another appointment] tomorrow so I suggested we'd take her out next Friday, if that works for her. p.s. UCL, I didn't tell her this was her farewell lunch as well as her "staff appreciation" lunch...

Me: Good thinking OtherAttorney! We'll save that part for dessert.. or should we wait until after she pays the tab?

Secretary: I'd rather jam bamboo shoots up my fingernails than spend an hour with you two.

Ahhh the love!

Another Friend

A couple of years ago, a local lawyer in our city made it into the headlines of our sensationalistic local news media because he committed suicide. Let's call him Steve. The news reported that Steve had been a troubled man with a number of drug and alcohol problems by the time he killed himself. His ex-wife was interviewed by a local tv station, and basically she bad-mouthed him, telling the world that he was always a loose cannon and a bona fide nutcase.

When I heard his name for the first time on the news, it sounded oddly familiar. And then it came to me. Only 3 or 4 weeks before his suicide, I had talked to him on the telephone. One of our clients had needed a particular legal transaction accomplished, and since we were litigators, a partner told me to call Steve and have him do it because he was the city's foremost expert in doing this particular kind of transaction.

Steve was a solo practitioner. When I called him, I was still in my 1st year as an associate. I probably sounded green on the telephone, because before talking business he asked me to tell him about myself and how long I'd practiced law. He joked around with me for a couple of minutes, and gave me some advice. "UCL, one thing I've learned through my own career is that you should find a specialty. Find one thing you like doing in law, and get really really good at it and just stick with it." He made me laugh several times throughout our conversation with jokes and smart aleck remarks. When I reported back to my partner I told him that "Steve was quite a character." In a nice-guy way, I meant.

Maybe Steve was a loose cannon, and a "nutcase." And maybe he had a drug and alcohol problem and caused many people in his life a lot of pain. He had adult children, so his suicide undoubtedly caused the most pain of all. But I only knew him for a 15-minute window during his life. And during those 15 minutes, Steve was a great guy. I'm sure people in his life don't miss the dark side of Steve's personality, whatever it was. But I know for a fact that Steve's persona had a good and decent aspect to it also. And it's a tragedy the world didn't see more of it before he died.

Here's to you, Steve.

Integrity

Jeremy has this great post attacking his law school (Harvard, but I think most schools nationwide have the same affliction) for how it chose to counsel its students on how to achieve success in law firms, at a "job advice" session. Some of the advice he attacks:

"Go to firm social events, and collect information from what people say when they're drunk - but you can't be hammered yourself."

"It's not how smart you are. It's how smart people think you are. It's not how hard you work - it's how hard people think you work."

"Students often ruin their image by making casual comments around the office. If someone asks you how you like the job, say 'I'm learning a lot,' even if what you're thinking is 'I'm learning a lot about how I don't want to work here.'"

"Always carry a copy of the evaluation criteria with you - so you can constantly check that you're getting the right experience. Keep a file, and write down every compliment you get."

"Make friends with the support staff to get gossip... one associate [bribed them with] muffins every week."

I admire Jeremy for his criticism and, being the eternal optimist that I am, believe that most Harvard law graduates (and most law graduates in general) probably share his disdain for the attitude expressed during that job session. He's right that the message conveyed through such advice completely ignores personal integrity as a characteristic law graduates should strive to achieve, once they are in the workplace.

This advice is obviously wrong from a moral standpoint. But I also think it is poor advice from a pragmatic perspective. I'm fully aware of an entire population of associate attorneys out there (and people in general, in all professions) who sincerely believe that manipulation and ass-kissing (a redundancy, I realize) represent the path to professional success. Honestly, truly, sincerely: I don't see such people becoming "successes" very often. Now and then they do, yes. But just how far is one of my colleagues going to go when, 20 years from now, all of the young associates he trampled on to get to partnership are now partners and judges themselves?

Failing the Bar Exam

In Scheherazade's opinion, bar review courses are run by "scammers", and law graduates should avoid them. This subject is important enough to graduating law students (many of whom I know read this blog, and Sherry's) that I had to respond to her opinion with my own separate blog post. I have to respectfully but strongly disagree with Scheherazade.

To give readers some idea of my personal vantage point: I passed my bar exam on the first try, with flying colors and scores way above the state-wide and national averages. I also took a bar prep course (BarBri), with several of my classmates and friends. Although I passed, a little less than 10% of my class did not, and that included one of my best friends in law school, and another close friend the next year. So I am intimately familiar with both sides of the coin: the glory of passing, and the misery of failing. I've seen and experienced both to different degrees.

I don't want to give anyone a heart attack with this post, but I do want to emphasize the realities of failing the bar exam, which I estimate happens to about 20% of all graduating test-takers around the country.

What it means to fail

Failing the bar exam is an excruciating experience. People react to it differently, but from what I've seen, one immediate effect is that you no longer want to interact with your friends because it is too difficult to watch them launch their new careers while you are stuck in limbo mode. While all of them are excited about the millions of "firsts" all new lawyers go through (first day at the office; first day in court; first deposition; first motion with their signature, etc.), all you can do is sit back and smile, as though you understand what it's like (which you don't).

There's also the difficulty of facing your family and other friends. Most non-lawyers do not understand that bright and intelligent people fail the bar exam, and this makes dealing with non-lawyer friends and family even more aggravating. Most loved ones naturally try and be "nice" to you, but they just don't get it, and they can't, and it's not their fault. But the bottom line is that it's hard dealing with them after you fail but before you get your results from the next exam.

And then there's the financial consequences, for most law grads who don't have cozy employment offers from firms who are willing to pay them while they wait to take and pass the bar again. If you take the bar exam in July '04 and fail, this means your next exam will be in February '05, which means you won't be sworn in to the bar until almost one full year after July '04 (in most states), assuming you pass the 2nd time. For some people, this means a devastating loss of expected income ranging anywhere from 40 grand to six figures and beyond, depending on your individual circumstances.

The Point

The point of all this is that taking the bar exam is not something you should "experiment" with, because there is too much to lose, and not taking a bar review course is experimenting in my opinion. I took BarBri, and yes there are many aspects to it that are irritating, and yes it is expensive and probably way over-priced. But for most people, it works. If you are extremely intelligent and extremely well-organized, disciplined, confident (but not too confident because over-confidence will kill your score) and for all practical purposes are a flawless study machine, then maybe you fit into a narrow category of people who will not benefit by taking bar review. But for what it's worth, I personally don't know one person in that category. My friend who was on the Yale law review took bar review. Classmates of mine who were ranked #1, #2 and #7 in our class respectivelly all took bar review (the rest of the top 10 probably did too but I don't know that personally).

Studying for the bar is like a marathon. You only have so much time and so much energy to devote to crossing the finish line. If you don't take bar review, you are forced to spend precious time and energy on assembling materials and devising your own "system" for how, when and what to study. If you're that rare person who has so much time and energy that you can easily afford to risk such a sacrifice, I admire you, but your experience will not necessarily translate into the experiences of millions of others.

Note: I wrote more on this subject here.

My first jury trial: Chapter 5 - The Morning of Trial

Recap: In Chapter 1 I described how a simple 1200 dollar traffic accident made its way to my desk for litigation. In Chapter 2, I had my first conversation with defense counsel, where I first realized that both he and his insurance company client had a strange attitude about this case, for reasons unknown. And in Chapter 3 and Chapter 4, I recounted how defense counsel behaved himself as we made our way through the discovery process.

As you can imagine, the morning of trial was filled with nervous energy for me. By this time, I had organized all my exhibits, had a paralegal prepare a trial notebook for me, prepared all of my direct and cross examinations, and practiced my opening and closing arguments. I did all of this, by the way, with the aid of an absolutely invaluable book that I recommend any new civil litigator use, even if they're going to trial under the supervision of a senior lawyer: Mauet's Trial Techniques. I was clueless about how to do a trial that morning, never having done it before. Without Mauet, I would've been a lost cause. The problem is that doing a jury trial is an experience that no amount of reading can prepare you for. There are just too many things going on at the same time to put all of them in writing so that a rookie would know everything just by reading. Therefore, despite all of my extensive preparation (which included not just reading, but sitting down with other lawyers and going over procedures again and again), my first obvious sign of being a rookie came very quickly that morning. More on that later.

Once our respective clients, us 2 lawyers, and the judge were all in the courtroom, the judge (a kindly and rather laid-back gentleman) asked if we were ready for voir dire. I inaccurately affirmed that I was. The bailiff opened the door, and in marched about 50 good citizens from around our fine city, of all sizes, shapes, and colors. One of the high points of the day for me actually happened at this point. From this group of people, who were all seated in the gallery behind the lawyers' desks, the task for me and defense counsel was to review their information sheets (which told us names, ages, and occupations), and secretly choose which ones we wished to peremptorily strike, and/or ask the judge to strike for good cause. After reviewing their info sheets, we were permitted to stand up and ask the large group of potential jurors various questions. I didn't feel comfortable with this process, never having done it before. I also thought the process was silly in the context of this specific case. This was still, after all, a stupid $1200 dispute, and it just seemed comical to go to such great lengths, when my lack of experience probably wouldn't aid me in rooting out any obvious potential bad apples anyway. So when the judge told me, "Plaintiff's counsel, you can start with your questions," I turned around, faced the jury pool, smiled, and responded:

"I have no questions, your Honor."

The judge looked at defense counsel, who stood up with a notebook where he had obviously written down dozens of questions he was ready to ask. He also had a very confused, bewildered, deer in the headlights look on his face that I fondly remember. He stammered out, "Uhhhh, I have no questions either, your Honor."

Later that day, after our trial was over and we were waiting for the jury to come back with its verdict, defense counsel told me how truly stunned he had been by that move on my part. Because I had chosen not to ask any questions, he figured he would have looked bad asking any questions himself, by giving the impression that I "trusted" the jurors while he did not. So against all his instincts, he had no choice but to do as I did.

Anyway, after we both decided not to ask any questions, the judge had the jury pool leave the room. He then asked us to select jurors to strike for what we believed was good cause, until we would be left with only 7 jurors out of the original 50 (we needed 6, plus 1 alternative, per stipulation between me and the defense). And here, my ignorance reared its ugly head. Because the judge had spoken very quickly and I happened not to catch exactly what he had said, and because I didn't know the ordinary routine of how things were done, I misunderstood that we were now going to exercise our peremptory strikes. (The difference, in case my links did not help, is that strikes "for cause" are strikes of jurors who have characteristics that the court will agree would make that juror unsuitable, for example, one potential juror is the defendant's brother-in-law. "Peremptory" strikes are strikes each side can make for almost any reason at all).

As a result, when the judge asked me to go first, I thought I was going to strike a juror peremptorily without having to explain why. Going through the information sheet and my notes, I immediately wanted to get rid of one angry-looking, middle-aged, male, self-described mechanical engineer:

"Your honor, I move to strike Mr. John Smith."

"Okay counsel. Why?"

[bewildered look, combined with ego not allowing me to confess I'd confused proceedings] "Uhhh, because Mr. Smith is an engineer." (Hey, at least I didn't say, "I pass.")

Defense counsel shot up, "Your Honor there is no way that is cause for disqualifying a juror. Blah blah blah blah blah..."

Before I could make more of a fool of myself with an attempted rebuttal, the judge ruled, "Motion denied. Next?"

In the end, we wound up with a jury I was fairly happy with, through using my basic human instincts. One juror was struck for good cause by me because he was himself an insurance adjuster. Many others were struck when we finally got to the peremptory stage. I wanted senior citizens (like my client), and people who looked like they were friendly and smiling. I didn't want wealthy-looking people. I didn't want conservatives, though in hindsight probably 3/4s of the jury was Republican. I obviously didn't want engineers or anyone who would over-analyze the mechanics of the accident or buy into the defense's "aftermarket parts" theory. We wound up with about 3 women and 4 men. The women were middle-aged and all had smiles on their faces at one point or another. The men were the same, with one man who was probably 80+. One male juror was very young, but he was an art student for crissake. "Harmless," I told myself.

But I have to say that there was one juror who made me very, very nervous. I didn't have enough strikes to get rid of him, and he was exactly what I did not want on the jury: wearing expensive-looking clothes and a watch, about 50ish, good-looking, professional. Obviously a golfer. And worst of all, he had a scowl on his face the whole time. He never made eye contact with me either. I'm damn sure he voted for Bush in 2000. Or heck, Pat Buchanan. Let's call him Angryman for this story. Upon being chosen, Angryman skulked into the jury box and sat in the seat that was furthest away from me, in the back corner.

I gulped. Then, I began my opening arguments, and trial began.

(To be continued).

How to beat your wife properly

I am not an Islam-hater or any-religion-hater, but this well-cited collection of sources (via Slithery D) simply shocks me. An excerpt:

Beating is not suitable for every wife; it is suitable for certain wives and for other wives it is not. There is a woman who cannot agree to being beaten, and sees this as humiliation, while some women enjoy the beating and for them, only beating to cause them sorrow is suitable

From 'The Shar'ia and Life', a weekly television program aired on Al-Jazeera, the Arab world's largest private television network

The Middle East and Islamic nations around the world will continue to suffer from social problems associated with their simple failure to evolve as a civilized society, as long as such opinions are tolerated as "mainstream" by cultural icons, political and religious leaders in the Islamic world.

TGIF

I've been doing pretty well over the past few weeks as far as regular blogging goes. But for God's sakes, I am a civil litigator at a law firm after all! The streak had to end eventually. So from now on, if I disappear for days at a time, feel free to make the assumption that I'm swamped, as I was all of yesterday.

Nothing notable occurred, except that a motion I drafted on a major tort case we're defending, in which the plaintiffs are represented by another large firm in town, resulted in a frantic phone call directly to me by one of the other firm's senior partners. This is someone who is very well-known in our state and is so high up the ladder that he probably hasn't actually written a motion in 30 years. He's such a big-shot that his "juniors" are other partners. He introduced himself to me by explaining (although I already knew) that he was involved in the case only to the extent of making major decisions on important pleadings affecting the litigation. I was surprised to find myself a bit intimidated and more careful to what I said to him as we conversed. (Not that that's a bad thing; quite the contrary. More advice to my fellow young'uns: show respect to your elders, even if you don't work for them.)

Anyway, he was being very serious and lawyerly with me because the motion we'd filed could have major implications for his clients, the plaintiffs. When he finished proposing an agreement of sorts to me (that really didn't sound like anything our side would ever want to enter into), I sensed that he'd really blow up if I did what I would normally do, i.e., tell him, "Adversary, we have no incentive to do what you're suggesting. Sorry but no deal." Instead, I told him, "Well, let me go over your suggestion in my mind and then I'll talk it over with [my own partner] and see what he says." He told me he strongly hoped we would be open to his idea. I told him, "Look, you know how it is with us young associates right?"

I was pleased that this triggered a chuckle out of him, totally changing his grumpy demeanor and bringing out a completely new person. Suddenly I realized that although I was talking to an intimidating senior litigation partner, I was also talking to someone who's probably a grandfather, and someone who's probably mentored hundreds of young associates just like myself at his own firm. He laughed out loud and said, "I know, sometimes you go to a partner with an idea, and he shoots it down asking, 'What the hell are you thinking!?', and you just have to obey the new marching orders!" "Exactly," I humbly responded.

Later that day, when I communicated our rejection of his idea, he took it in stride, without blowing up or trying to change my mind.

Picking Classes

I really like Scheherazade's approach to picking classes in law school.

When I was a law student, I followed no advice and applied no real logic whatsoever to my course selection. My problem was that I wanted to study everything, and there were just too many classes I told myself I HAD to take or I would always regret it. Although I loved law school, I wouldn't advise anyone to use this strategy. It led to my graduating without really having a particular speciality or academic focus, and I do think that hurts any graduate's attractiveness to potential employers.

On the other hand, if you know you want to go into litigation and nothing else, why the hell not? Litigators do specialize in specific areas of law, of course. But litigation is a speciality by itself in many ways. A lawyer may be litigating tort and civil rights cases for the first 15 years of his career, but if he's established a stellar reputation as a trial lawyer (I mean a real trial lawyer), he could very well get picked up by a firm to litigate patent infringement cases in front of juries. I would, however, advise anyone taking such a scatterbrained approach to course selection to supplement their education with internships, externships and other trial advocacy experiences.

The Fallen

Since President Bush ordered troops to invade Iraq, approximately 678 members of our armed forces have given their lives to carry out the President's mission in that country. They came from Sierra Vista, Arizona; Orange, New Jersey; Summit, Ohio; Philadelphia; and Chicago. Their ages at the time they died were 42, 32, 18...

You can see their faces and mourn their loss here.

Advice for New Associates

I don't claim to have all the wisdom and experience in the world as a lawyer. Quite the contrary; I'm only a 4th year. But I can tell all the law students and new associates out there about my experiences and what I'm learning from them on a daily basis, as I make my way through the world of litigation at a decent-sized firm.

The advice I had reinforced this week, through watching someone else's unfortunate mistake, was simple: don't be afraid to look stupid. The fact is that when you're a new associate, you are stupid. And the quicker you understand this concept, the smarter other people will know you are. I realize this is difficult for some people to accept, probably because I'm using "stupid" very liberally. It's not that you're actually stupid from an intellectual point of view, it's just that you're ignorant of the actual realities of how to litigate a case. Therefore, don't make assumptions, and if you're clueless about something, it's better that you risk "looking stupid" (which the partner already knows you are) by asking a partner to help you, than to continue on your course of stupidity and actually harm your client and your firm.

Case in point: you have an enormous, 800-page stack of documents you have to disclose to opposing counsel. You're not absolutely clear on what documents do or do not fall under the attorney-client privilege as it is applied in your specific jurisdiction. You decide not to apply a second set of eyes (your partner's) to what you do decide to disclose, relying instead on your own judgment and in part an experienced paralegal who was helping you. Weeks later, this mistake blows up in your face, or more accurately, your partner's face while he's at a court hearing or deposition and is confronted with a blatantly privileged document that should never have gotten into opposing counsel's hands. You can imagine what you'd feel like when that partner returns to the office and wants to talk to you. Not good. Not fun. Not happy.

Some associates are very good at asking questions even though they look stupid. I'd like to think I'm one of them. Don't get me wrong: everyone makes mistakes, and I've made (and will continue to make) plenty of them from time to time. But even the very worst mistake that I can think I ever made, didn't get me into actual "trouble," i.e., no one talked about firing me, no one was truly "mad" at me, and I wasn't humiliated. This was because I'd developed a reputation for keeping partners apprised of difficult issues when they come up on my cases. So, when I discovered my Big-Time Screw-Up (not that big time, but enough to put a little dent in the financial award Client was hoping to get) and disclosed it to Partner, we talked about how and why it happened rather than how incompetent I was. And believe it or not, when we jointly called Client to talk about it, Client called my private office line an hour later because he felt guilty! He thought I was going to be in big trouble with Partner, and actually took the time to write a letter to Partner praising my work in the case until my screw-up.

In defense of Scalia

Please forgive a little bit of chest-thumping on my part, here.

A very interesting discussion ensued following this report from De Novo, about a US marshall who physically confiscated an audio recording compiled by a reporter, during a speech given by Justice Scalia. In the comments to that post, and the suggestion that this incident could be used to hurt Scalia's image, I responded:

Justice Scalia's record on defending the right of free speech is unblemished. He may privately insist that his speeches not be recorded, but that "insistence" does not constitute a 1st Amendment violation, and I highly doubt he would ever endorse the tactics used by these marshalls. Their conduct betrayed everything Scalia has been writing about in his judicial opinions for years.

Brian replied to my "unblemished" remark that "While I wouldn't call this a boil, surely it comes to the level of a zit or, at least, a pimple."

De Novo now reports that Justice Scalia proved my assessment of his principled view on free speech issues to be 100% accurate, through a letter he wrote to The Reporters Committee for Freedom of the Press. Scalia wrote:

Thank you for your fax of April 8, expressing well justified concern over the incident at Presbyterian Christian School in Hattiesburg last Wednesday.

You are correct that the action was not taken at my direction; I was as upset as you were. I have written to the reporters involved, extending my apology and undertaking to revise my policy so as to permit recording for use of the print media.

No zits here. Not even a freckle.

Interview Nightmares

Anonymous Lawyer contributes this story about an interviewing nightmare with a happy ending. I have my own nightmare story, and it's ending was far from happy.

During my second year of law school, I had an interview set up with a small firm. The very day before this interview, my then-girlfriend of 3 years broke up with me. This was a hard break-up (but a good one, as time eventually taught me), and I was fairly devastated and a complete wreck. I showed up for the interview with absolutely no preparation, and no knowledge whatsoever about the firm, much less the interviewing partner. And you can only imagine how mentally prepared I was for a formal interview in general.

During the interview, the partner asked me the following question: "What specifically is it about this firm that makes you want to work here?"

Oh what I would pay to see a videotaped recording of my answer! I stammered, yammered and stumbled for what seemed like an eternity but was actually probably no more than a few seconds. Something along the lines of, "Well, uh, what I really like about your firm is that you do litigation. And, uh, I don't really know to be honest with you." Yes, I actually said that. No, I am not a very good bullshitter, despite being a litigator.

The partner's reaction to this still ticks me off. He glared at me and in a condescending tone lectured, "You know, you shouldn't show up to an interview without doing some research and preparing for it." I just stared back at him, red-faced. He continued on with a few more questions but the interview ended shortly thereafter. Of course, I didn't get an offer. (Instead I wound up at a firm approximately 10,000 times better than his.)

The partner was right. I should have shown up prepared, or if I was unable to be prepared, either attempt to reschedule or have no expectation of getting hired. That's fine, my duty is established and I recognize it. But the partner also had his own duty: to treat me with respect. Some may think differently, but when I am in a social situation like a job interview (and I've been on both sides of the table), and I am confronted with someone who breaks some "social custom", not deliberately but through ignorance or inadvertence, the courteous thing to do is to overlook it. I'll make a mental note of the incident if I have to, but I'm not going to needlessly humiliate the person. I think that is the courteous and polite thing to do.

Obviously, this partner could care less about courtesy, and little did he realize that there was a perfectly understandeable reason why I was such a mess that day (unlike him, I was too professional to actually attempt to explain to him what had happened to me). He could've just as easily made a mental note about my lack of preparation, and simply finished the interview and sent me a polite rejection letter a few days later. Instead, he decided to embarass me even more than I already was.

To this day, some 5-6 years after that interview, I still remember that jerk, though I doubt he would ever remember me (Reason #4873 for not being rude to strangers). I have a very proud reputation of being a litigator that is pleasant to work with, tough though I may be in court and in depositions. But that won't be the case if The Jerk ever has the misfortune of being opposing counsel against me.

"Em" continued

The battle over "Em" and the entire issue of gender-neutral pronouns (GNPs) in the blogging world rages on. In this well-thought out, thorough and exhaustive post by ethicalEsq & haikuEsq, David Giacalone concludes that "em" should be "deleted from the list of candidates" of GNPs, and that the best choice is "de".

To be clear, I really don't have strong feelings on this subject, although my own brief comments on it have inspired a number of interesting posts by other commentators, such as David, Scheherazade and Blind Insight. I don't fully agree with Scheherazade's suggestion of simply picking one gender over another and using that, rather than a GNP or "he/she," for reasons that I admit I haven't fully explained but am too lazy and time-crunched to do any time soon. I do agree with both Scheherazade and Blind Insight that "em" and other weird GNPs are unsightly, distracting, and annoying to the reader. I simply choose to continue using them for lack of a better alternative. (Scheherazade also criticizes GNPs because they communicate a lack of trust from the author to the reader. I responded to that point with my opinion that simply lying to the reader about a person's gender, rather than admitting that you wish to protect it, fosters its own level of mistrust.)

David's "de" idea is plausible, but I won't adopt it because it's not any less or more attractive than "em". It's certainly not better than "em" from Scherezade/Blind Insight's point of view regarding aesthetics. And David's attempts to distinguish "em" from "de" are unconvincing. He states that "em" has "no possessive form," for example, but this is not true. I may have used "em" incorrectly in my own posts in the past, but a possessive form of "em" is "eir" according to this GNP-devoted website. The Straight Dope also observes that the similar possessive form of "ir" has origins in the 19th century.

It's not that I disagree with the use of "de". It's just that of the very few blogs or websites where GNPs are actually used, all have adopted "em". This includes Greedy Associates, where dozens of anonymous posters routinely and commonly use "em" (example). If there is any single GNP which has a chance of catching on and becoming a part of the English language (or at least web-English language), it is "em". The moment I'm shown something more attractive, or more popular, I will switch to it.

One more thought: the notion that there is somehow something "wrong" with masking people's identities bothers me. There are many languages which allow its writers to mask people's genders freely, through GNPs that are a long-standing part of their linguistic tradition. It just so happens that English is one language whose speakers have not come up with a GNP. That we have not does not mean that we cannot, or should not. This is particularly true since English is among the most fluid, flexible and constantly-evolving languages in the world (one reason why it is so successful and wide-spread as a universal language).

Defending the Rights of Oppressors

This weekend, I met a long-time lawyer friend of mine who I've actually known since childhood but now lives in another part of the country. As we both went through our formative years and our academic careers together, we shared sharply libertarian views on issues of civil liberties and American constitutional theory. It's interesting to see how we've branched off since graduating. He has been published in numerous law reviews around the country, always an energetic advocate for civil rights and an opponent of "government oppression". For my part, I went into private practice and now spend most of my time defending the government and large insurance companies.

He laughed while telling me that a few weeks ago, his wife (also a lawyer, employed by a civil rights public interest group) came to him with a compelling civil rights violation that occured in my jurisdiction, suggesting to him that I take it on. She knows me well also, but had apparently forgotten where I worked. He told her, "UCL can't take on those kinds of cases, dear. He's too busy defending the rights of oppressors these days." That probably sounds harsh in print, but we know each other well enough for me to know that it's all in good fun.

I chuckled when he told me this. With a wink, I reminded him that my views on civil rights hadn't actually changed one bit. All my current experience was giving me was expert training from the best in the business. He had a big grin on his face as I told him to imagine how effective I'll be ten years from now, when I decide to leave the dark side to join his cause.

Afterthought: For direct evidence of the inner struggles taking place within my civil rights conscience, see here.

A friend

Several years ago, three people I knew died in the well-known terrorist bombing of an airliner. Out of a family of four, a father and his two beautiful daughters were on the plane. The girls' mother was not, as fate would have it.

I wasn't particularly close to this family myself, and I was 9 years old at the time my family moved cities and began to lose touch with them. But while we were there, we went to each others' homes many times for dinner. Naturally, they were wonderful people. I say "naturally" because this sort of thing only seems to happen to wonderful people. Even though I was only 9, I kind of had a crush on the older daughter, who was about 12 or 13 at the time. I always got very shy when she was around (which still happens to this day around beautiful women; thank God I got over it with respect to my wife though).

I still remember the very last time I spoke to their dad. We had moved far away by then, and he called to speak to my father to say hello. I was still a little kid, but I distinctly remember that when he learned neither of my parents were home, he didn't just leave me a message and hang up. I was just a kid, so why would an adult bore himself conversing with a kid for more than 10 seconds, right? Well, he asked me how I was doing, how I enjoyed my new school, and whether I missed my hometown. He sounded sincerely happy to talk to me. I was just a kid, but he acted like I was genuinely his friend. That's simply the kind of person he was.

About one or two years later, we heard about the bombing in the news. It occurred in mid-air and there were no survivors. My parents just happened to go through the passenger list published in the media. The last thing they had expected was to recognize anyone's names. The two daughters' bodies were among those recovered. The father's body never was.

Update: The real reason I wrote this post was that I had just finished going through an extensive set of reports by the governments of several involved countries about this incident. I read details that never made it into the media, such as the findings of medical examiners who examined the recovered bodies. I had never known, before reading these reports, what really happens to people when a plane crashes from a high altitude flight. The truth upset me so much that I originally wanted to express my feelings about it here. But although I treat this blog like a journal of sorts, it's not just a journal. Other people read this. And trust me, many of you will not gain anything by seeing and reading the things I did in these reports, or understanding why I feel the way I do. Suffice it to say that it is easy to hear about a plane crash in the news, and not really think about the actual suffering the people on that plane went through. It is a horrible way to die, with the last moments of life filled with nothing but terror.

Enough.

Time flies when you're having fun

Phew! I love it when I get so busy that I don't even know where the day went before it's over. This was one of those days. First, an exciting new case came across my desk involving free speech and Internet-based personal jurisdiction issues that required immediate action to avoid a default judgment. I also quickly concluded that we can remove this action to federal court because of the 1st Amendment issue. Can't wait to hear counsel cuss me out because of that, hee hee! Then, a host of other unexpected fires burst out for a variety of different reasons on other cases, requiring me to shoot off letters, file motions or make phone calls. This is why I truly love working at my law firm. I get to actually do this kind of cool stuff, because the partners give us true responsibility over our files. If some major decision comes up, I will always run it by them first. And if a major motion or brief is to be filed, they will always see a draft first. But I still get to do the brunt of the work and sign my own name to it (along-side theirs of course). I'd say we're the only larger-sized firm in my city that gives young associates so much first-hand experience. Which is why, even if I do say so myself, I think the trial lawyers at this firm are among the best in the state. The old ones have been doing this for decades, and the new ones are learning first-hand from the old ones, instead of sitting in libraries writing research memos for 5 years.

Onward...

My first jury trial: Chapter 4 - The Battle of Aftermarket Parts

It's been a while since I continued the story of my first jury trial. As I told a blogging friend recently, I think this was partly because I subconsciously fear boring the pants off my readers with this story. But part of the reason I'm writing this is for my own reasons: I'd like to have my own personal account of this very fun and memorable experience. And who knows, maybe some of you DO find it entertaining. (Obviously, I can fool myself into believing anything).

Recap: In Chapter 1 I described how a simple 1200 dollar traffic accident made its way to my desk for litigation. In Chapter 2, I had my first conversation with defense counsel, where I first realized that both he and his insurance company client had a strange attitude about this case, for reasons unknown. And in Chapter 3, I recounted how defense counsel behaved himself as we made our way through the discovery process.

The most vicious fight I put up on an evidentiary issue during the pre-trial period was on the issue of "aftermarket" parts. Like many insurers, Skeletor's client was insistent that, even if its insured was liable for the accident, Helga's desire for $1200 was too much because her car could be repaired for only $800 if she used "aftermarket" parts instead of dealer-manufactured parts. This detailed article sums up quite nicely the debate between aftermarket and dealer parts. Now, I am myself an attorney who represents and works closely with insurance companies. So let me assure you that this tactic, too, was shocking. The cost of simply EXPLAINING this so-called "aftermarket" defense to me in a single letter written by defense counsel exceeded the "savings" the insurer was looking for ($400).

Naturally, I fought with them about this. I demanded discovery and propounded interrogatories forcing them to analyze and summarize their "aftermarket" theory to me in sufficient detail. When I discovered that they intended to "prove" their theory by means of an auto repair estimate that was written by--guess who--one of their own insurance adjusters, I threw a fit. I filed a motion in limine with the court requesting permission to tell the jury, openly, that the writer of this "estimate" was an adjuster with the very insurance company paying for the claim.

As most insurance lawyers will tell you, in this kind of a scenario you normally cannot disclose to the jury that an insurance company is part of the picture at all, under the rules of evidence. However, there are exceptions to that rule. And I argued that one such exception was when disclosing the identity of the insurer was needed to demonstrate the obvious bias of the author of the estimate, who had a vested interest in pushing its theory. If the insurer didn't want to disclose its own identity, I suggested, it should withdraw its estimate and get a new one from a neutral and more objective source.

The judge disagreed, but issued a compromise ruling that still basically gave me what I wanted: "Plaintiff cannot disclose to the jury the actual identity of the insurance adjuster. However, Plaintiff can disclose that the author of the estimate is employed as a 'representative' of the defendant." So, with the author on the stand, I could not ask, "You work for XYZ Insurance company which is paying this claim, don't you?" But I could ask, "You work directly as a 'representative' for the defendant, don't you?" Jurors are not stupid. They can read between the lines, I figured.

Armed with this weapon in my arsenal, I was gaining more and more confidence as the trial date grew closer. Estimating that the defense had probably spent about five to eight thousand dollars by that time, I called up Skeletor to see if settlement was possible.

"Sorry UCL, but we simply don't believe our client had any fault in this accident. We'll give her $500 but that's it."

After several months of litigation, this insurance company improved its settlement position by a grand total of 100 bucks.

See 'ya in court, buddy.

Outrage

Overpundit has this outrage to express about a woman who falsely accused someone of rape, commenting about "how disgracefully our criminal justice system treats victims of false accusations of rape." He also asks, "Can anyone disagree with Kobe's defense tactics?"

Yes. I do disagree with the defense tactics of Kobe Bryant. I think they are appalling, borderline unethical, and borderline frivolous. They are purposefully designed to taint the jury pool, humiliate the victim, and feed the media frenzy swirling around this case. I would be ashamed to be associated with the law firm that is currently defending him.

Am I outraged by how our criminal justice system "treats victims of false accusations of rape"? I guess so. I guess I'm technically outraged by how our justice system treats victims of ANY false accusations of crimes. But that "outrage" pales in comparison to how our system and our society deal with TRUE victims of rape. It's a well-known fact that the overwhelming majority of rapes are not reported to the police, which means that the overwhelming majority of rapists out there will never be punished for their crimes. Of the small percentage of rapes that are reported, the state will not prosecute many because of evidentiary problems inherent to all rape trials (e.g., many rapes, particularly those committed by the most clever sex fiends among us, are committed without leaving behind physical traces of any violent, traumatic acts). And of the rape cases that are prosecuted, many still fail because of those same evidentiary problems.

Rape is the most heinous crime one can commit in our society, second only to murder, using the sentencing guidelines of most states as a yardstick. I think those sentencing guidelines are an accurate reflection of society's moral condemnation and hatred for the crime of rape.

And if you can't tell, this is one lawyer who was this close to becoming a prosecutor at one time when fate took me in another direction. I have an internal, burning moral outrage for people who commit sex crimes, particularly rape of any kind and sex crimes against children. This doesn't come from any particular aspect of my personal background. I was raised in an awesome family environment and never had to deal with the horrors faced by victims of sexual abuse. And maybe that's exactly why it makes me so furious when I see it. I know the life victims will never live because of the acts of their abusers.

One day, when I get tired of the civil shtick, I'm going to throw away my billable hours requirements and join the government, specifically so I can toss as many sex-offending fleebags into prison that I can fit into my docket.

The Magdalene Sisters

I watched the 2003 Irish movie The Magdalene Sisters last night, and highly recommend it. As I see it, this movie was an indictment of Irish theocracy, that allowed an extensive network of for-profit laundries, running under the guise of the Catholic Church, to abuse women for decades. The most infuriating story featured in the movie involved a victim of a rape. After her family discovered she had been raped, her loving parents took prompt action by sending her to a prison camp run by the so-called Sisters of the Magdalene Order.

The Catholic Church denounced this movie. (Yeah, that's convincing). But this scenario really isn't about the Catholic Church, and it's really not about religion either. The horrific instances of abuse, sadism and greed we've seen in recent years are usually centered on a factor having nothing to do with religion per se: power. A principle we've seen repeated again and again throughout history is that concentrating an excess of power in the hands of any one person or group of persons, without ensuring the ability to impose harsh accountability, will inevitably lead to an abuse of that power.

A Tribute to Judge Posner

Three words of the day: Judge Posner rocks. And here is his homepage.

I have more than just a passing interest in Judge Posner, because several of the opinions he wrote on a particular legal subject were directly on-point for an issue in a case I was litigating. My motion for summary judgment relied heavily on language he wrote and issues he clarified, and it is a true pleasure reading his judicial opinions. Following his reasoning as he dissects a difficult legal issue is like watching a master surgeon at work. Through a chaotic and tangled mess, you can almost see his fine, threaded needle of reasoning work its way from the beginning (just finding it is usually the hardest part for most lawyers and judges), directly into the heart of the matter, and pass its way into the clear and now-obvious conclusion. What's left is a bright trail allowing everyone to understand the path he took to get there.

Yes, it is possible to take pleasure in reading judicial opinions, though only a rare pleasure for actual practitioners of the law as opposed to academics. Judge Posner makes it possible, and for that, I thank him.

Faux Conservatives

Logos points to this article about a federal judge's order regarding a sticker placed in every textbook in Cobb County, Georgia by the school board, which reminds children that "evolution is a theory, not a fact."

I have to say that I am becoming increasingly impatient with people forcing our courts, often at taxpayer expense, to litigate cases filed by religious advocates insisting on using tax dollars to subsidize their private views. Somehow, these advocates have succeeded in distorting this debate in our country from one centering on the role of religion in our society, to the role of tax-funded government in sponsoring religion.

What really pisses me off about this debate is the self-proclaimed identity of religious advocates as "conservatives." Pardon my French, but give me a f*cking break. No one supporting these antics is a conservative by any stretch of the imagination. Any person who thinks that my %$#@ing tax dollars should be used to put up statues; print stickers about evolution; paint walls; chant mantras; thump Bibles, Korans or the Torah; praise Allah, Buddha or Jesus, or engage in any other activity that normal people participate in while in the privacy of their homes or churches is not a "conservative". Any conservative who says otherwise isn't a conservative; he's a fraud. Even worse, such a person is a traitor--yes, treasonous--to everything true conservatives believe in, and a parasite seeking to use the "conservative" label to attract the support of sincere conservatives.

Why is that these people cannot be content with engaging in private activity in... God forbid... privacy? Why is it not good enough that I pray to my God in my home or my church, and you pray to your God in yours? Why is it that I have to waste my time, resources, and even my hard-earned money so an already-overburdened court of law can decide whether you can force my tax dollars to pay for a Ten Commandments monument in a government building? What, the monument means nothing if it's only erected in your church? Does it mean nothing if it's paid for by your money, instead of the money contributed to our government's coffers by tax revenues? This is "conservative"?

"Conservative" is probably the most overused, abused, and distorted label in current use in our popular media today. The term only rightfully belongs to those who support limited government. Period. And if you agree with the position taken by Cobb County in this case, you are not a conservative. You are a socialist leech who seeks to use tax dollars to support your private cause just like all the "liberals" you claim to despise. Enough with the hypocrisy.

End vent.

"Em"

My previous, "em"-saturated post may have contributed to this post by Blind Insight. As she puts it:

I find it terribly distracting, and it has a certain jarring resonance to my uninitiated ear. If we must be in the business of arbitrarily creating words, can't they be pretty ones, at least?

I responded in a comment to her post:

My last post is filled with annoying em's, and I agree with you: they're grating on the eye and they read like crap. I don't like 'em. (He he, pun intended!)

As far as its origins: I wanted a gender-neutral way to write my posts, and I didn't want to use "he/she" over and over again (that's even more grating). So I googled the issue and found a few websites specifically referring to "em", among other terms. Since I remembered "em" was used often on Greedy Associates, I just went with that. I'm all ears to other suggestions!

I write this post to give some of the examples of websites I'm talking about. First, it is true that "em" is commonly used at the Greedy Associates website, e.g., here. With that in mind, I used google to see whether other commentators had remarked on the appropriateness of using "em" or had suggested any other terms, and I found a few. The author of this site devoted to Gender Neutral Pronouns (GNP), for example, states,

I usually use the GNP's "ey", "eir", and "em" in this FAQ when referring to people, in place of "he/she", "his/her", "her/him".

This individual post in an on-going GNP discussion states, "For aesthetic reasons I prefer ze, zis, and zer, but em, eir, and em will work too." "Em" was again cited by a commentator in response to this blog post suggesting the alternative term "Xe" (eww).

Perhaps the best discussion I've found on this topic belongs to The Straight Dope, who acknowledges the historical roots of "em" but comes to no definitive conclusions about the best or worst GNP term to use, mainly because we as an English-speaking society have ourselves not reached any such conclusions. My personal favorite, as referenced in the Straight Dope, is blending "he or she, it" to produce, h'orshit.

Of course, I am open to any and all suggestions for a gender neutral pronoun I can use without distracting from the substance of my posts. On the other hand, the reality, I suspect, is that any new term that we're not used to reading is going to be distracting no matter what it is.

The fruits of my labor

My weekend was highlighted by the fruits of my labor: a fine, and free, meal. Over a year ago I did a friend of mine a pro bono favor. Basically, em had gotten a whopping speeding ticket and wanted me to defend em at trial. I'm not a criminal defense lawyer but it's a long story why I was the perfect choice to represent em. Suffice it to say that I did it out of the goodness of my heart.

The trial was a very informal bench (judge only) trial, in a very small town in a rural county. The only witnesses for me and the State were my friend and the police officer. When the trial began, you can imagine our horror when the judge actually interrupted my opening argument. Em believed that the only defense I intended to raise, justification (another speeding car was playing games in traffic and my client accelerated to leave em behind), was no longer a valid defense to the charged crime under a recent appellate case, though em could not remember which one. I then had a very interesting, entertaining, and civil discussion with em Honor about fundamental principles of criminal law, and whether fairness compelled the court to recognize that justification should be recognized as to speeding offenses. What if, for example, a person was carjacked and the carjacker held a gun to the victim's head and told em to drive at 90 mph until they were out of the city. Surely the law does not compel the victim to disobey the carjacker! The judge scratched em's head. The prosecutor was unable to help, and was as unaware as I was of the mysterious appellate case the judge referred to. After pondering the matter, the judge decided that em was confident enough of the substance of the appellate case that em was not going to knowingly rule against it. Justification was stricken as a valid defense.

Justice prevailed in the end. The judge found my client guilty, but also found em's testimony, which the police officer did not dispute, and my argument as to why em sped to be credible. Accordingly, in the court's discretion the sentence (a substantial monetary fine) was suspended and my client paid no fine. Post-trial, I researched the justification issue and discovered that the judge had ruled correctly: what I consider a poorly-considered appellate opinion in our state had in fact invalidated all justification defenses from the crime of speeding. I offered my friend the opportunity to appeal, with the caveat that the only path to success would be for the appellate court to reverse its previous opinion. Em declined.

More than a year later, my friend's insurance rates had not increased even though the conviction had been reported. Jumping with glee, em mailed me and my wife a substantial gift certificate to dine at one of our city's finest restaurants. Our mouths are still watering from the heavenly courses and fine wines we enjoyed.

Love thy &$#@ing neighbor

At the risk of incurring the wrath of Overlawyered, I ask the public: when is it time to sue your neighbor?

I am not the kind of lawyer who goes around throwing my bar card in everyone's face any time I find myself in a confrontation. I actually avoid letting people know I'm a lawyer in everyday situations. But my neighbors have pushed me to the limits of tolerance, and I now wonder whether I have been too generous, forgiving, and "neighborly" with them.

Problem 1: their vicious, untrained, unsocialized and probably abused (by them) dog once escaped from their backyard. I was taking the trash out at about 10 pm, on my own property. The dog bit me, and got a pretty good bite too. It broke the skin, I bled, it bruised, and after 3 days a doctor friend forced me to go to the hospital to get antibiotics. I now have a barely visible--but still visible--permanent scar on my thigh. The neighbors were very apologetic and brought me a stupid box of cookies the next day. I was too angry to speak to them, but I left them alone for the most part.

Problem 2: their dog barks, constantly, late at night. A separate neighbor came to my house to discuss it one day, and said the dog had almost bitten her at one time also. It's a dangerous dog, they've been careless about keeping it penned in, and it's also a noise nuisance.

Problem 3: tonight, their radio, karaoke "singing" and blabbing in the middle of night has woken me up from my sleep, which is why I am now blogging.

They have been spoken to about this problem. As a lawyer, I know perfectly well that I have the power to march into a court of law and nail them with an injunction against disturbance of the peace at this point, with threats of monetary sanctions for each future violation. I can also have their dog destroyed by court order. The question is: would I be an evil slimeball for using these powers?

Behaving yourself

JD2Be has these comments on how the behavior of law students while in law school could affect their careers after graduating. With a few years of post-law school life now behind me, I'm in a position to look back and really see whether this is true or not. And in my experience, it is true. I remember very well those people from my graduating class who were jackasses. They may have given me a few laughs at the time, but imagine what would happen if one of these people was to apply for a job with my firm? Even at a big firm, I would hear about it. Since such a person would be from my own class, a partner would undoubtedly come to me specifically for my opinion. Can you imagine what I would say if the partner asked me whether he should hire "Bob," when I know that "Bob" got drunk and picked a fight with a waiter during a law school social event? Or if "Bob" was strongly suspected of (but never proven) having cheated on an exam?

Don't get me wrong: people like the "Bobs" in the world are in a tiny minority. Most law students, at least in my class, were smart enough to recognize the importance of maintaining their reputations. I'm proud to say I made absolutely no enemies in law school. Quite the contrary, I made some good friendships, some of which I know will last for many, many years. Others, I may not be close friends with but I remain acquainted with. Bottom line for law students: handle your relationships with your classmates carefully. The dividends of acting professionally will be plentiful and long-lasting. The negative consequences of acting like a buffoon, on the other hand, will be equally long-lasting and hard to overcome.

Afterthought: I know of at least one occasion when I interviewed with a law firm as a 3L, where the partner flat out told me that one of his summer associates was a classmate of mine (who I was only casually acquainted with), and when asked for her opinion, she had been extremely flattering in her assessment of me. I think it's rare for partners to disclose something like that, and he probably only did it because he knew he wanted to give me an offer (which he did do). But it's just one example of how you conduct yourself can have real effects on your career path.

I didn't accept that offer, by the way. But I never forget a kind gesture and that includes what this classmate said about me, who still works at another law firm in my city. Which reminds me that I think I'm going to call her up and buy her lunch next week.

Pass

I had my share of ups and downs when I was in law school.

Ups. As a law student, I quickly gained a reputation for fearlessly facing down professors who challenged me with the Socratic method. There was no question they fired at me that could make me stumble. No issue they posed that I couldn't pontificate on. No cross-examination or interrogation that could make me sweat. Yes, I was one of those law students that every other law student loves to hate: the guy who enjoyed being called on in class. There was one particular face-down of a professor--that I really can't describe because it would easily "out" me--that instantly propelled me to fame and had classmates patting my back and congratulating me for weeks. My friends, partly proud and partly amused at this law-nerdiness of mine, were relentless in making fun of me for this characteristic.

Downs. It was therefore with a great deal of pleasure that my law school buddies witnessed an incredible series of events during my very last semester of law school. The course we were in was not a traditional, Socratic method class on a traditional law subject. It was much more business-oriented, and taught by an adjunct professor who was the former general counsel and current board member of a major multinational corporation. Maybe it was the non-traditional format of the class that got me off guard (even though I have a business degree). Maybe it was last-semester-itis. Whatever it was, the kindly professor called upon me one afternoon, and it went something like this:

"UCL, why don't you talk to us a bit about your thoughts on XY and Z?"

"Sure, well... umm...."

[Long, deathly, pin-drop, eternal silence]

"Uh, I pass."

The professor was nice, and immediately moved on to someone else. But my 2 buddies, sitting on either side of me, quickly went into a state of shock. Their eyes were wide open, jaws on the floor. Neither could speak for a few seconds, until finally one of them caught their breath and whispered, "Did I just hear what I thought I heard!??" As you can imagine, I heard about the infamous Passing Incident for the rest of that week.

That is, until, the next week. We were in the same class. The professor, obviously wanting me to redeem myself in front of my classmates, gave me a second chance.

"So, UCL, what do you think is the best way to approach an ABC in light of what we've been talking about?"

This time I was fired up and ready to go. I came out with shotguns a-blastin', sounding confident, smooth, under control...

"Well, there are a number of different ways you could approach this. The most appealing one to me would obviously be to put in place a system that allows the legal department to communicate with corporate leadership... about... uh... ummm.... I pass."

It took everything my 2 friends had to keep from bursting out in uncontrollable laughter. Of course, they promptly did so (burst out in uncontrollable laughter, that is) the second class was over. But to this day, when we get together now and then for a beer or a barbecue, my friends still talk about how happy they were to have personally witnessed both the best and the worst, the mountaintops and the valleys, the peaks and the lows, of UCL in his law student days.

Cool lawyers

Thanks to Scheherazade for pointing me to the blog of this very hip and inspiring lawyer: Madeline.

Delightfully awkward moments

Once upon a time I attended the deposition of another lawyer. Before the deposition began, em and I were comfortably seated in the lobby area of the law firm hosting the deposition, by ourselves. We had a nice conversation. It turns out that 20 years ago, em and one of my former bosses (now a partner) were associates at the same firm together, so as you can imagine, the conversation was pleasant and cheerful.

Then we went into the conference room for the deposition, along with the 2 other lawyers who represented other co-defendants, and the plaintiff's lawyer. Collectively, we ripped into the lawyer-deponent with no mercy. We had to, under the circumstances of the case. I'm sure em hated me after the deposition was over. All of us defense counsel left the depo together, so I didn't talk to em again afterward.

Flash forward to today. I'm seated at a popular downtown restaurant for lunch, waiting for a colleague of mine to join me. In the distance, I see the very lawyer I had deposed come into the restaurant with a friend. I laugh to myself at how awkward it would have been had we walked into the restaurant together. Ha ha, that would've been funny!

I then proceed to watch the hostess walk this lawyer to the table right smack next to mine. Terrified, I calculated in my mind whether this person would want me to say hello or not, and whether it was appropriate. My mind reeled at the baffling complexity of this urgently-needed analysis of the social situation, producing no obvious answer. As they walked right in front of me, as the lawyer was forced to do notwithstanding our obvious mutual desire to pretend that the other was not there, I tried to kind of look up from my menu as if I was going to say "Hello" and yet at the same time look as though I was just casually looking up for the sake of looking up, in case em didn't look at me. Have you ever tried to do that? It's not possible. If you don't get a "hello" back, you inevitably look like a fool, and are left to think to yourself, "How stupid am I to think this person who hates my guts would say 'hello' to me?" And that's exactly what happened. I looked up. The lawyer did not look at me. I was left staring at the wall like a buffoon. Lawyer sat down 4 feet away from me and began chatting it up with friend. And I sheepishly went back to my menu to spend the next 10 minutes of that very non-Kodak moment waiting for my friend while trying to look cool.