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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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.
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.
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.
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.
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.
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.
A wonderful single-page Motion in Limine from the Harris County District Attorney’s office.
For the benefit of non-lawyer readers (I assume there are some), a Motion in Limine is a procedural device that, if granted pre-trial, prevents an opponent from mentioning or alluding to some particular fact in front of the jury before getting a ruling on its admissibility. It’s usually used where a proper foundation has to be laid before something becomes relevant or where there is some nasty fact out there (such as a past not-so-nice-but-not-illegal act) that would prejudice the jury against one side or another without actually proving anything relevant to the case.
It’s standard practice to include a statement in any such Motion that you don’t want the other side talking about you filing it. (Juries don’t like to be told that they’re not being allowed to hear the whole story.) But in the case of this one, I can assume only that the prosecutor had a real sense of humor or was operating on auto-pilot. I’ll let you be the judge.
Tip ‘o the hat to Defending People.
The wheels of the law turn slowly. Once a precedent is set, it can take years to overturn, even when the weight of public opinion has turned against its underpinnings. Case in point, New York’s recently passed marriage-equality law.
Even as activists celebrate the law’s passage, an odd case comes out of the Supreme Court of Broome County. In Yonaty v. Mincola, Hon. Phillip Rumsey held that a plaintiff who complained of defamation for allegedly false statements about his being gay had a case that could proceed.
The important thing about this case is not that the statements were false but that Judge Rumsey held that—under existing precedent—the statements were derogatory per se. When a plaintiff brings a claim for defamation, he generally has to prove some sort of damages arising out of the false statement; usually some sort of economic loss. Except for a very limited class of statements, just because you say it, it doesn’t cause harm, even if it may be false.
In that limited class of statements—usually statements concerning a person’s alleged criminal past, alleged infection with a “loathsome disease,” dishonesty in business, and (in New York) homosexuality—harm is presumed, and a statement is actionable as a matter of law. But when equality in the most fundamental and basic of familial relations has been explicitly recognized by the state, can it really be defamatory to call someone “gay”? Under Judge Rumsey’s ruling, yes it can.
It’s important to note that the fault here is not Judge Rumsey’s. He followed the precedent that he was required to follow. Trial court judges do not have the luxury of ignoring years of established case law. No, the lesson his order teaches is that, when discrimination becomes institutionalized, it takes more than a single vote or a stroke of the governor’s pen to make it go away. History does not depend upon the present, but vice versa. The law on which Judge Rumsey was forced to rely came from years before the recent referendum, but it was the law, nevertheless.
In recent years, states and their citizens have found all new classes of people to hate, and the results of that hatred are now turning up in state houses across the nation. It is ground to be trod with caution. When, in the heat of the moment, targeting one class for particular treatment becomes a goal of the law, it is not so easily ferreted out when more sober thoughts take hold.
Tip o’ the hat to Onpointnews.com.
It’s the same old song and dance. Professional athlete fails a doping test and blames the company that made some exotic-sounding supplement he’s been pumping into his body for weeks, months, or years. “I had no idea….” the tearful confession always goes, continuing that he apologizes to the league, his teammates, and the fans, before promising never to do it again and going off to serve his suspension before unrepentantly returning to the field at its conclusion. Despite all those supplement manufacturers out there who are supposedly lacing their vitamin pills with everything from eleven herbs and spices to rocket fuel, no one backs up all the talk with real action.
Or at least, not until St. Louis Rams linebacker David Vobora came along. Vobora is used to breaking the mold. As “Mr. Irrelevant” of the 2008 NFL Draft, Vobora could reasonably be expected to be one in that long line of hopeful NFLers who never saw a snap in a real, meaningful game. But Vobora, not only saw action in eight games for the Rams in his rookie season, he started one of them and followed that performance with ten games as a starter in his second year.
So, when Vobora tested positive for a banned substance, he alleged it cost him serious money in the form of a suspension and endorsements, the “Mr. Irrelevant” title actually being worth something to those proving it a misnomer. Last week, a federal judge agreed with Vobora and awarded him $5.4 million in a default judgment rendered against the supplement manufacturer, known as “S.W.A.T.S.”, which markets a number of products including what appears to be a similar spray to that used by Vobora claiming it contains “liposomal deer antler technology.” Seriously. I am not making this up.
Pro Football Talk views the judgment as complete vindication for Vobora, noting that “he was telling the truth.” But a default judgment isn’t the same thing as a decision on the merits; it just means one side never showed up to the fight. Even so, the fact that S.W.A.T.S. punted on its own defense lends credence to Vobora’s claims. Given my high level of skepticism concerning denials like this, it would be nice if—just for once—an athlete really didn’t know what was in that stuff he was taking.