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Scary times…..

Monday, March 24th, 2014

I don’t claim to be a student of world history or politics, but I do remember my high-school studies in world history, and that’s why Vladimir Putin scares the hell out of me. Because Putin is the shiny new face on, not just the old Soviet Union, but the ethnic philosophies that Hitler espoused after he rose to power with the Third Reich. Yes, I’m aware of Godwin’s Law, but hear me out.

Putin is ex-KGB. Everyone knew it when he rose to power, but he seemed to be a benevolent version of it. He was invited to join in with G7 and NATO discussions, and the belief was that he represented the face of a kinder, gentler Russia. But the arguments Putin is putting forth these days smack of the same stuff that was used to annex portions of Czechoslovakia in the years leading up to World War Two. Back then, Hitler argued that the Sudetenland—the western-most portion of Czechoslovakia—was heavily populated with ethnic Germans and should be annexed as a part of Germany. This is, of course, the exact same argument Putin has used for annexing the Crimea. Hitler argued the same thing with regard to Austria before annexing the entire country. It remains to be seen if Putin will do the same with the rest of Ukraine, but it doesn’t look promising for anyone who holds peace as a priority.

Dealing with the devil carries a cost. Putin became a part of the international community and received legitimacy from U. S. administrations. It seems that no one knew he would become this. These are scary times we live in.

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The Blockbuster Decline (or, a Unified Theory of Netflix)

Thursday, December 12th, 2013

In the last month, the once mighty Blockbuster Video chain has gone pretty much entirely out of business.  Oh, there are one or two holdouts, but the business that once was is basically no more.  No more driving to the store on Friday evening and picking up the action flick du jour.  It’s a bit of a surprising turn for a business that was thriving ten years ago.

But, of course, times changed.  Netflix became a major competitor to Blockbuster as customers avoided the trip to the store and the lines in favor of just walking to their mailboxes.  So what if the drive is a short one?  The walk is even shorter.  But that’s not what killed Blockbuster.  It managed to co-exist with Netflix’s mail-out DVD business, but the whole house of cards came crashing down with the advent of streaming video from a multitude of sources.  And it got me wondering, what’s the difference?  The answer I came up with was instant gratification. 

I always noted a tendency in myself whenever I filled up the old Netflix queue with DVDs to be mailed out, and I contrast that to my tendencies when filling the streaming queue that I currently have.  It made me think there are two sides to every subscriber (or at least, to me as a subscriber).  The mail-out subscriber has a particular image of himself—erudite, interested in fine film and artistic quality.  The mail-out subscriber is the one who queues up foreign films, classics, and Oscar nominees.  He seeks out challenging material that will make him think and that displays the best moviemaking has to offer.  And he’ll probably almost never watch any of this stuff.

And then there’s the streaming subscriber who can barely be bothered to put on pants and shake the Cheetos dust out of his t-shirt.  He wants to see something funny or watch people die, and he wants it right now.  He’s not willing to wait the three or four days it takes for the movie he wants to see to get mailed from Netflix’s distribution warehouse to his home, so he’s willing to go hit the local vid store if that’s the only way to satisfy his craving.   But, hey, now there’s streaming!  And that means those pants can stay in a crumpled heap on the bedroom floor, and he can start in on the Doritos, while still getting his movie fix. 

Instant gratification is what separated the new competition from the old for Blockbuster, and I think it’s what signaled its demise.  What does this have to do with law—the ostensible purpose for this blog?  Well, not a whole lot.  I could say something about patience being a virtue for an appellate lawyer because you never know how long an appellate court is going to take to decide your case, but that would be a stretch.  Truth is I just thought it was interesting and a real sign of the technological changing of the guard we see so much of these days.  Technology has made my solo practice possible (or at least, much more feasible), and our court system is continuing to adapt it to new use.  For lawyers, I think the new frontier is an electronic one, as courts push firms to modernize and likely as clients insist on the efficiency that technology can bring about.

UPDATED:  Yup.

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What we become….

Tuesday, December 10th, 2013

A few months ago, I saw the movie Zero Dark Thirty.  If you’re not familiar with it, it’s an account of the hunt for Osama bin Laden, beginning with the World Trade Center attack in September of 2011, through his eventual killing.  (Incidentally, if you’ve not seen the movie, but want to, stop reading now.  There are spoilers ahead.)

 The movie is fascinating.  It presents a behind-the-scenes picture of the hunt.  Frequently, it’s not pretty, but neither was what bin Laden orchestrated.  Let me set a few things straight from the outset.  I think bin Laden “needed killing.”  What bin Laden did—financing and planning the destruction of the World Trade Center in New York and the murder of thousands there and elsewhere—marked him as less than human in my mind.  I shed no tears when his death was announced.

My interest, however, was in what the hunt did to us.  Zero Dark Thirty presents an unflinching look at the start of the hunt.  There are scenes of what has been euphemistically labeled “enhanced interrogation techniques.”  Those might involve leaving a subject of interrogation strung up by his arms overnight, with loud music blasting at him, depriving him of food and water, and allowing him to soil himself.  These scenes are particularly difficult to watch because we know that they are likely real.  And we know that the things depicted were done in our name.

 In the movie, unlike in the real world, there was no taunting from bin Laden.  His face is barely seen.  The video recordings that we saw on the nightly news make no appearance.  The film is journalistic, but with a definite slant.  Even though the story is about bin Laden, what he did, the hunt for him, the events of September 11, 2011, and other terrorist episodes are told in black screen or with short, episodic revelations.  The villain of the piece, himself, barely shows up at all. 

 Because, ultimately, it’s not about the hunt for bin Laden.  It’s about what the lust for . . . justice . . . vengeance . . . does to us.  The final shot of the movie is of the protagonist, who has spent her entire CIA career hunting bin Laden, with tears rolling down her face.  They don’t look like tears of joy. 

 This is not to say that justice never wears black.  It’s only to say that justice can come at a cost.  Sometimes, that cost is personal and extraordinary, and it reflects as heavily on the one who extracts it as from the one receives it. 

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What drives us?

Saturday, June 29th, 2013

The downside of being an appellate lawyer is that your clients don’t often get to see how hard you fight for them. It’s a technical practice, devoted to battling legal interpretations, and clients usually either don’t understand it or just don’t show up, particularly when the fight is in the trial court. Yesterday, in San Antonio, I had the pleasure of representing a client who showed up to that trial court, and I got to explain to her what it was all about, albeit after the fact. It was good. This lady lost her husband, and I had the privilege of being her hero, if only for one day. This is why I do what I do.

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What is a whistleblower?

Monday, June 24th, 2013

In 2002, Time magazine named “The Whistleblowers” as its “Persons of the Year.”  It was a tip of the hat to insiders who revealed shenanigans at Enron, WorldCom, and even the Federal Bureau of Investigations.  These insiders were held up as heroes, finding “the strength to stand for what’s right.”  The law, at both the federal and state level, protects whistleblowers, at least when they’re calling out the government for wrongful acts.  And there’s a good reason for that—because these are people who are uniquely placed to know of wrongful activity and expose it to public scrutiny.

Enter Edward Snowden.  In case you’ve been hiding in a cave or haven’t picked up a newspaper in weeks, Snowden is a 30-year-old Booz Allen Hamilton contractor who, until a few short weeks ago, was doing work for the National Security Agency.  In the course of his work, Snowden learned that the NSA was keeping tabs on internet and telephone use by thousands of individuals.  Snowden released this information to Glenn Greenwald, a reporter for The Guardian and claims to have much more in store for future release.  The whole thing has caused a huge uproar, with bloggers and talking heads at both ends of the political spectrum condemning the NSA and calling for the government to leave Snowden alone or aiding his defense and others condemning Snowden, while calling for him to be brought to answer for committing a crime.

And thus has commenced a game of global “whack-a-mole” with Snowden playing the part of the mole and the United States government wielding the mallet.  Snowden was stationed in Hawaii with Booz Allen—a spell of employment that lasted only three months, though he reportedly planned his leak of information for two years (suggesting that he took the job in order to gain access to the leaked information)—but then fled to Hong Kong and later to Moscow.  (As of this morning, Snowden was scheduled to be on a flight from Moscow to Cuba but failed to appear for the flight.)

So what is Snowden?  Is he a whistleblower or a college dropout unilaterally making up security policy?  That may require a bit of an exploration of what whistleblowing actually is.  I think of it as a form of civil disobedience—violating the law in the name of a greater good.  But the tough part of civil disobedience is that you have to suffer the inevitable crackdown before being vindicated by history.  Before he became a worldwide icon and recognized as an historically significant figure, Martin Luther King, Jr., went to prison for breaking the law.  He knew this was the price of disobedience.  Gandhi was imprisoned in 1922, 1930, 1933, and 1942 for his protests.  Snowden claims to have the courage of his convictions, but he certainly hasn’t showed it yet.

And that’s what bothers me about Snowden.  If he were so convinced that the government’s acts are egregiously wrong (and, incidentally, I am not calling them right), why run?  You can tell a lot about a man by the company he keeps, and, so far, Snowden has sought asylum in China, Russia, and Cuba, none of which is exactly a bastion of free speech or open government.  The true whistleblower throws him or herself on the mercy of the courts of law and public opinion.  Snowden appears not to have the courage to do that, and until he does —until he acknowledges that he committed a wrong even if he did so to out a greater one—he’s no MLK or Gandhi.  He’s no whistleblower, at all.

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Trust me, I’m a lawyer….

Monday, March 26th, 2012

You’d think that lawyers are the only people on Earth who don’t hear the phrase “Trust me, I’m a lawyer.”  But, in fact, we probably hear it more than most.  From whom, you ask?  Legal marketers.

Recently, I’ve been contacted several times by an outfit called Yodle.  Yodle performs marketing services for lawyers and others.  And, if what I’ve seen is so, it does it very badly.  Because Yodle takes a classic one-size-fits-all approach.  Now, understand that my own experience with Yodle is based on a discussion with one of its marketing representatives who kept insisting that I could get more personal injury cases and appellate cases through a Yodle website.  (Except that she couldn’t pronounce the word “appellate” properly.)  I’ll grant you that my website could probably do with some more traffic, but I’m also pretty convinced that anyone who would hire me strictly based on my website is probably not someone I want to work for.  Legal representation is personal representation.  The person who stands up in court and speaks for you is, for all intents and purposes, YOU.  So make sure he or she is someone you trust.

But the thing that really got me about Yodle’s whole hard-sell was that the salesperson—I won’t give her any other title (sorry to any salespeople reading)—was that she told me that she was a lawyer, so she understood my problems and concerns.  But how is it that she knew all those things without actually practicing law on a day-to-day basis?  How is it that she knew the stresses and strains of running a law practice?  And how is it that she knew the particular concerns of a small-firm (in my case, tiny firm) appellate practitioner?  Answer:  she didn’t.  She had no idea.  None whatsoever.

That’s where lawyers can get taken in as easily as anyone else.  When someone says he’s like you, you want to believe him.  When he says he knows where you’re coming from, you want to sign on.  But, if it’s just a sales pitch, you need to look deeper.  Ask questions.  Probe.  I turned Yodle down before I even realized that my good friend Mark Bennett had heavily slagged them on his own blog.  Had I done my research first, that’s a few minutes of my life I would have had back.  When someone says “trust me,” your first move should be distrust.  Trust is earned.  Not asked for.

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The Contemporary Constitution

Monday, March 12th, 2012

Norm Pattis writes today about Hon. J. Harvie Wilkinson, III, and his opinion on opening up the legal can of worms that is is the U.S. Constitution.  Judge Wilkinson, in an op-ed piece in the New York Times, suggests that all the debate over the meaning of the Constitution–and, I suppose, the increasing amount of it every four years–really does not serve us well.  Judge Wilkinson argues that elevating every argument to a discussion of Constitutional interpretation and values risks either demeaning the value of fully debated and vetted federal legislation or devaluing the laws of state and local communities.

Norm takes issue with the Judge’s piece, and, I think, understandably so.  While Judge Wilkinson argues that much of what passes for constitutional debate is really political argument, Norm argues against the kind of conservatism advocated by Judge Wilkinson because it would “keep the Constitution in its place;” that is, tied up in interpretations that are themselves governed by opaque rules of interpretation.  As Norm correctly and poetically observes, “Each generation recreates the document for itself.”  No one owns the law.

Norm’s position is one I’ve stated myself on this blog.  Nevertheless, I’m sympathetic to the basis for Judge Wilkinson’s argument.  To me, the real danger lies, not in the elevation of political argument to the constitutional level, but of the dragging down of the Constitution to mere politics.  How many times in recent years have we seen proposals for new Constitutional amendments, be they to define marriage, allow school prayer, require a balanced budget, or–let’s face it–see to it that Arnold Schwarzenegger is eligible to run for President?  The trend in our national discourse has been to have more and more of these proposed amendments come along.  And that says to me that the Constitution is being regarded as the ultimate political end run.  Tired of debating something? Get a constitutional amendment passed, and kick it all over to the courts.  Let them deal with the fallout.  Even if you can’t get it passed, you’ve taken an uncompromising position and can’t be accused of being wishy-washy.

The Constitution should be interpreted by each generation, but its interpretation should be governed in light of its history.  It doesn’t exist for the transient political whim of the moment, and I like to think that is what Judge Wilkinson was getting at.  There is always going to be a tension between fundamental rights and lesser ones when we examine them through the lens of the law.  As Justice Brennan once wrote, “the demands of human dignity will never cease to evolve.”  That is reason enough for flexibility in our Constitutional interpretation.  But present passion should always be safeguarded by long-term perspective.  The values enshrined by the Constitution are contemporary; but the underlying principles are also eternal.

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The legacy of Moneyball continues

Sunday, February 26th, 2012

Anyone who reads this blog regularly knows that the Michael Lewis-penned book Moneyball is a favorite of mine.  If the only version of Lewis’s work you’re familiar with is the movie version, I encourage you to seek out the book.  In the name of Hollywood-style drama and simplicity, Brad Pitt’s version took some shortcuts and made some simplifications to both shrink the narrative to a less-mathematically-based story and ramp up the human drama.  That’s not to say I’m not a fan of the movie, too, but Lewis teaches a lot of lessons that the movie doesn’t attempt.

But the story that comes through from both the celluloid and paperbound versions is about outside-the-box thinking; learning to value what others see as disposable.  It’s about finding new ways to determine value and how best to exploit the value you have at your disposal.  And it’s why I find the story of Jim Crowley, the head coach of women’s basketball at St. Bonaventure University in upstate New York such a treat to read about.

The “Bonnies” were not a very good team.  In 2005, they’d completed their fifth straight losing season, and nothing looked to change for the future.  St. Bonaventure couldn’t compete for the top recruits—the ones with the stellar shooting percentage, the leaping ability so prized in basketball, or the physical attributes of size and strength that make college coaches salivate.  So Crowley—after reading Moneyball—started looking at other statistics.  Specifically, he started looking at turnovers.

One of the basic principles of basketball—and of football, for that matter—is that if your opponents don’t have the ball, they can’t score.  So Crowley started looking for recruits who could hold on to the ball.  That meant avoiding a turnover when they found themselves double-teamed or operating in traffic.  The results have been little short of spectacular.  Since introducing his unorthodox recruiting philosophy (and a coaching strategy that stresses maintaining possession and keeping a body between the ball and the basket, without making showboat moves to steal or block shots), the Bonnies have posted a .672 winning percentage, and this year, they cracked the top 25 for the first time in school history, having lost only two games out of 29.  They are poised for an appearance in the NCAA Tournament.  Whether they go deep or not, that is a victory for creative thinking.

Small businesses (and small law firms—a particular interest of mine) face similar challenges.  How do you compete with the big boys, who bring many thousands of dollars of resources to the table?  Sometimes, competing means not competing—at least not directly.  Look for the undervalued asset, and turn it to your advantage, whether that asset is flexibility, experience in a particular area, or personal attributes.  It’s the ultimate lesson of Moneyball, and it applies far beyond the realm of baseball and far beyond sports, itself.

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9/12

Monday, September 12th, 2011

September 11, 2001, was a horrible day.  It was Pearl Harbor for a generation, perhaps, multiple generations.  It was the day that terror from abroad came to America, and it is a day none of us will soon forget.

Like many, I know what I was doing that day.  Even as the jets slammed into the sleek, towering buildings of the World Trade Center in New York, I was sitting at my desk on the third floor of a dumpy little office building in downtown Houston, Texas, just two blocks from the courthouse.  I couldn’t work that day.  The news on my computer screen was too horrific, and the mantra echoed over and over in my head, “This can’t be happening.  This can’t be happening.  This can’t be happening….”

I got home that night and saw the images on the news.  Survivors covered in dust.  Bodies—some still alive—falling from on high.  And that awful, awful image of the planes hitting home; striking us in our core, as a nation, as a people.  I saw the images of dancing in the streets in the Middle East, and I felt the bile rise.  I felt a rage like I had rarely felt.

But something happened the next day.  The sun came up.  The horror was still there.  It’s been there ever since.  But something was different.

It’s always been my tendency to intellectualize everything—whether it’s good things, bad things, whatever.  Put simply, I think too much.  In my line of work, it’s sort of inevitable.  It’s what I do.  But I couldn’t help thinking that those faceless criminals—faceless, at least, at that time—had somehow missed the point.  They thought they were striking at America.  I wept, yes, I wept.  But I didn’t weep for America.  I wept for the lives lost, for fathers and mothers ripped from children, for sons and daughters ripped from parents, for brothers and sisters ripped from each other.  But I didn’t weep for America.  Because they never attacked America, and that’s what “they” will never understand.

The planes on 9/11 were targeted at the World Trade Center—a symbol of America’s economic might; at the Pentagon—a symbol of its military; and, my guess would be, at the White House—a symbol of its executive authority.  But I suspect that there was never a plane aimed at the Houses of Congress.  Or at our United States Supreme Court.  And there was never a plane aimed at any of the 50 statehouses and the countless courthouses in this nation.  That is where the Republic lives.  That is where democracy reigns.  That is our heart.  And our soul.

This morning, I was returning from a meeting with a client, driving up I-45.  I saw many flags flying at half-mast—I assume as a remembrance of 9/11.  But today is 9/12.  Ten years ago, we saw a re-birth of a spirit of giving, of volunteerism, of togetherness that grew spontaneously as a reaction to the horror that we had all witnessed.  It was a fitting tribute to the victims of 9/11.  Let’s do it again.  Raise those flags to full staff.  Remember that they died on 9/11.  But remember why they lived on 9/12.

 

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How to know you’re in for an interesting day in court?

Wednesday, September 7th, 2011

When you’re appearing because of an order like this one, from Hon. Sam Sparks of the U.S. District Court for the Western District of Texas at Austin:

Apparently, someone–multiple someones, in fact–didn’t play nice.

Judges don’t like dealing with discovery disputes or penny-ante arguments between lawyers, but it’s only once in a while that a judge finally blows his stack sufficiently to warrant an order like this one.  I suspect this isn’t the first dispute-that-never-should-have-been that Judge Sparks dealt with in the course of this case.  It’s a lesson for all lawyers:  don’t be “that guy.”  It’s not just that you get chewed out by a federal judge; it’s also that you get subjected to ridicule every time this order gets forwarded in someone’s email.

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