The Academy

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Saturday, February 15, 2003
 
Robert! Don't be so modest - I'll bet TONS of priests glanced at you wrongly!

I never fucked with a priest, but I did fuck with plenty of pious fuckups. Thinking back, I'd actually like to sue all the pious fuckups I fucked with. Can you find a class of people who fucked with pious fuckups and scribble up a complaint on behalf of all of us? "Lost Fucking Opportunities" 40 Billion Dollars, please AND INJUNCTIVE RELIEF - cage those fuckups and make them stop. I'm reflective and angry now.

Friday, February 14, 2003
 
Stat of the week: The Academy just had its 500th hit since installing its counter last Friday. Amazing. That's about 0.4% of the hits Bashman gets in one day. At least we have something to aspire to.

Also, I'd like to thank Madeleine Begun Kane for making us "A Regular Read."

 
So last night, while watching the Simpsons on the WB from 11 - 11:30 p.m., I was treated, for the second time in as many nights while enjoying said T.V. program, with a disturbing commercial. The commercial, largely in dark colors or black & white, shows children playing. Then, there is a voice-over talking about the priest-children sexual abuse scandal now rocking the Catholic Church. At first glance, the commercial seems to be some kind of political statement, but that thought was quickly dispelled. Imagine my horror when I realized the commercial is ACTIVELY SOLICITING alleged abuse victims to become part of a class action lawsuit brought by America's Most Familiar Lawyers(tm). Now, I have just read about this sleazy practice of soliciting class action members via TV in Grisham's newest book (which, in keeping with my main criticism of the author, ends rather abruptly). Anyway, maybe I'm the only person in America to have noticed these adds since I haven't heard anyone else talking about them, but I find these quite a bit more offensive than the standard "Have you been exposed to asbestos or the drug of the week" ads. In my youth, I was an altar boy. I can prove this fact readily. I was never so much as glanced at wrongly by a priest. But I could see this ad being very tempting to someone who had similar ties to the Catholic Church as I, but who has less scruples (or more money problems). I just don't think we should be encouraging people to come forward and participate in a class action where they can remain largely anonymous and subject to less scrutiny re: the validity of their claims. I come to this conclusion over and above my general distaste for such solicitation. Comments?

 
Jen. I share your frustration. Here at work, when the "powers" put a filtering system in place, we were unable to access any "entertainment" websites . This company is in the entertainment business! So silly - it was rethunk after a long and hard meeting about the pros and cons and now I'm on entertainment sites all day long. As far as 900 #'s go, I think you should send a firm letter to your phone service providers and tell them that you have 900# needs. Frankly, I don't buy the "Dave needed technical assistance" story, but hey - if you two want to hide your fetish lifestyle from everyone that is okay. No one is judging you. This country does have a moral tradition to uphold - so props to you for holding it up!

 
A man wrote to Bashman to express his dismay that his employer uses an internet filtering program to prevent him from looking at certain websites on his computer at work. Apparently the program is a blunt instrument, and filters out How Appealing in addition to other "clean" sites in addition to porn sites.

I share the writer's frustration! Dave and I recently learned about something similar regarding phone service. Did you know that you can't call a 900 number? I mean, it is probably possible somehow, but not if Sprint or AT&T provide your phone service. Before you speculate about WHY we were trying to call a 900 number, I'll just tell you that Dave was having some trouble with his home internet connection, which is through Juno. Problem is that Juno only provides a 900 number for service-related calls. That was no help to him, though, because the phone company would not let him place the call. AT&T has an automatic block in place. So, I tried to call the 900 number on my cell phone. Couldn't do it. Sprint wouldn't let me. Dave tried just asking to have the block removed, but it seems that you can't do that over the phone.

What a wacky world we live in! There are computer programs and phone systems that prevent our minds from "harm," but the best advice from our government about how to protect our lives is to go to Home Depot and buy plastic and duct tape.



Thursday, February 13, 2003
 
I was under the sincere impression that the aluminum foil hat was to protect my brain against alien invasion. If that impression is correct, I fail to see why I should give it up in favor of duct tape and plastic. I'm pretty sure the aliens can get around the duct tape and plastic, but NOT the aluminum foil.



 
I think Fox should create a new reality show based on competing faiths. One week, the contestants (representatives of different faiths) would have to eat disgusting things -- like actual flesh and blood. The next week, they would have to sing their gospel. Then, there could be some sort of physical challenge involving walking on water or going without food or drink under extreme conditions. Finally, there would be a dating component in which each faith would have to prove its attractiveness to members of the opposite sex. In the end, America would decide which is the coolest faith of all. I think the Jedis would win, hands down.



 
The Jedi sound like the United Nations General Assembly! This is all coming together...

 
Well, Mark, there is still humor in the world: for example, take the most recent British census --

LONDON (Reuters) - It's official -- "Star Wars" has created almost 400,000 Jedis in Britain.

Over 390,000 people wrote "Jedi" on their 2001 census form, more than those who registered their faith as Jewish, Buddhist or Sikh in the optional question on religion, the Office for National Statistics (ONS) said on Thursday.

The Jedis declared their belief after a campaign on the Internet asked people to "do it because you love Star Wars" or "just to annoy people."

"Star Wars devotees stated their faith as 'Jedi' in the mistaken belief that if 10,000 did so it would be recognized as an official religion," a spokesman for the ONS said.

The census question on religion offered a series of tick-boxes for the major religions in the UK, including a free space for "any other religion."

In the films, the Jedi knights are a noble order of protectors unified by their belief in a universal power called the Force.

--- Maybe they will turn the Force on that Saddam character...

P.S.: I think a showing like that in America would definitely qualify "Jedi" as a "religion" for whatever benefit that gets you.

 
Me no wanna get along with others. Me wanna bang on my drum all day. This world is out of control and I intend to ride the tension for all its net worth.

 
Oh, no. Can't we all just get along? We're already going to war with Iraq. We will likely have to do something about North Korea. I just don't have the resources to declare war on New Haven. DAMMIT, JIM. I can't fight on three fronts! TELEX TO ACADEMY: Moratorium on Y*le bashing likely the most prudent course of action. Just until we get these other rogue states under control.

Query: are we really past that point where only psychotics put plastic on their windows to block out the small pox germs and evil rays? Do normal people do that now? Or is it still closely related to wearing aluminum foil hats? My mother recommended that I get some "duct tape and plastic sheeting" if I'm so worried about terrorism. This from the woman who regards bath decals as the worst possible decorative choice. (Note to those who end up at this site in a frantic search for an effective bath decal removal method: Try vinegar. Presumably not balsamic.)

One more question I just thought of -- if duct tape and plastic sheeting are so effective, is there really no benefit to wearing an aluminum foil hat?

DEAR GOD its raining in SOUTHERN CALIFORNIA.



 
Mindy. I am surprised a Y*lie was able to send you an e-mail so quickly after your post. Don't they normally question how exactly electronic transmission works for about a week to see if it is detrimental to the environment and then push send regardless of any such effects since "everyone else does it, so it must be okay."

Wednesday, February 12, 2003
 
I received an email today chastizing me for my broad generalization that Yalies Are Awful. Mea culpa. All Yalies are Not Awful. But the other day I was mad so I took it out on Yale. That was wrong, and I'm sorry. You are quite right. There is no "Yale Conspiracy." I don't know what I was thinking.

(Curses! Now the S.G.O.M.U.E.Y.L.S.G. [Secret Government Organization Made Up Entirely of Yale Law School Graduates] is privy to my ramblings! Tonight I will put a masking-tape X in my window and hopefully Deep Throat will meet me in the parking lot. The Truth is Out There!!! Trust No One!!!)

 
Mindy, Mindy, Mindy... I for one put no stock in the rambling "opinions" of a man who loves "making boobs out of Playdough" and publishes a picture of his "girl of the day" on a semi-regular basis. Myself and Incompetent Attorney are far more reputable (IMHO).

 
I enjoyed the fat Dixie Chick link (that the benevolent dicatator whose reign I have come to appreciate) posted. The writer refers to Ms. Maines' "waffle hole" in his essay. Dave and I were just saying last weekend how much we like the expression "shut yer pie hole." But now I'm torn. I wonder what my fellow bloggers prefer: pie hole vs. waffle hole. Or perhaps you've heard better?



 
Ah, Jen, your post evokes a political theory class I took in college. We learned about how the people will first reject tyranny, but then often express relief that the responsibility of freedom has been removed from their tiny overburdened shoulders.

I'm flattered that Robert thinks I look like the fat Dixie Chick. Once again, I briefly consider but reject the idea that I should actually be dating Jen.

 
Oh, and whichever "administrator" fixed the links for me in my earlier post -- thanks a bunch!



 
I think Mindy is prettier than that Natalie Maines woman. I think her voice is nicer, too.



 
So Incompetent Attorney has posted something I've been saying ever since I saw my first Dixie Chicks video, which admittedly was recently -- lead singer, Natalie Maines, is the hottest one. And she bears a striking resemblence to another very hot chick in my life. Anyone want to venture a guess?

 
I am shocked that the Bellagio did not send Mindy some sort of prize for being honest. There were no coupons? There was no all expense paid something-or-other? Goodness gracious, is the Bellagio struggling in these tough economic times, too?

I tried to watch AUSA last night. I really really did. But, sometime after the third appearance by the hot defense lawyer in skimpy clothing I fell asleep. I'm not really sure, but I think defense lawyers usually wear suits, too. It's not just the prosecutors. But maybe we should consult an expert. I have no doubt that the producers of AUSA did.

By the way, I highly recommend Maureen Dowd's column in the NY Times today. As usual, she hits the nail on the head.



Tuesday, February 11, 2003
 
Mindy's letter from the Bellagio is signed "Letitia Gonzalez, Director of Beverage". As I think about the pros and cons of being a Director of Beverage, I'm leaning toward the pros. With even a smallish staff, I think being such a Director would be a breeze and I sense early departures from work on a daily basis. Summer Fridays would be a sure thing, because we all know that beverages flow freely and plentily in the summer. BUT WAIT, I could go on with the pros, but I realize that it would be returns of money from honest people like Mindy that would cause me to work. I would not be able to open my computer folder marked "Form Letters", pick a form letter for any occasion drafted by my predecessor, or pehaps some know-it-all in Business Affairs, instruct an underling to fill in the name and date and print it and an envelope, sign my name on it (preferably with a stamp) and then have the underling stuff it full of 1/2 off Buffet coupons, lick it, stick it in an outbox and VAVOOM. Instead, I would have to ACTUALLY write a letter to Mindy returning money that wasn't hers to begin with - WITH THE EXPRESS INSTRUCTION FROM MY EMPLOYER that EVERY letter to a guest HAS TO SOMEHOW BE AN APOLOGY! Forget it, I don't want to be a Director Of Beverage anymore.

 
I'm not sure if this link will work, but if it does you must go read the discussion on the Greedy Clerks Board about the controversy surrounding Bush's nomination of Erik Estrada to the court of appeals.

 
I'm having one of those days during which I deeply regret my decision to attend law school and incur tremendous debt, which will enslave me for the foreseeable future in a profession of which I am deeply ashamed. You know what's wrong with lawyers? They're just so litigious.

Does anyone besides me think that the "List of Departed Attorneys" heading on Brobeck's website is a bit gruesome? I guess "former" attorneys was ambiguous as to the lawyers' bar status. But departed means dead, people.

Here's an amusing story.

As I have mentioned before, Robert and Mark and Li'l Patrick and I recently travelled to Las Vegas. While in Sin City, I played poker at the Bellagio. Now, I have played the poker at casinos before. But only at casinos run under the auspices of the Confederated Tribes of the Grand Ronde. I have never played in a poker room like the Bellagio's. It is scary, scary, scary. Not as scary as the LA card rooms Robert goes to on occasion, I'm told, but plenty scary to little old me. Its hard to explain why its so intimidating. Its just very crowded, very fast-moving, and it can get VERY expensive if you're not paying attention. You walk in there knowing that to the regulars, you look like a deliciously juicy double cheeseburger. That's intimidating. It is especially intimidating if, like me, you can't afford to lose the hundred dollars you're holding in your sweaty palm, much less the thousands that are routinely changing hands in that room.

So, undeterred and idiotic, I am seated at a hold'em table with my 100 dollars in chips and I start to play. I'm getting better cards than I have ever seen in my life in a real live game. Suited aces and kings. That kind of thing. There's only one problem. I am shaking like a leaf. I mean it. I am TREMBLING.

What actually happened is mostly a blur, but I can confirm the following:

* I showed one incredible hand before the round of betting was over, shouting "Full House" before three people had bet.
* After another hand, I thought I had two pairs when I actually had a full house. This would have been fine except when we showed our hands, I said, "Oh, I only have two pair. I lose." and had to be informed that I had a full house.
* I spilled my drink all over the green felt table, not to mention the guy sitting next to me.
* Notwithstanding the above I still won three pots.

It was such a comedy of errors at one point I just started laughing hysterically. It was like Lucille Ball playing poker. Ridiculous. After I had made a 50% profit (about 20 minutes), I stood up and walked away in shame. I cashed in my chips and got my money in 20s. (I remember Patrick and I had been complaining that very day about how Vegas atms only dispense 100s.)

I was then so shook up that I needed a beer. So, off I went to the Starting Gate Bar and ordered a Sam Adams. "That'll be 8 bucks," said the barkeep. Furious and disgusted, I handed the bartender a ten dollar bill. I remember this because I intended to give him the change as a tip. I changed my mind, however, when he promptly counted out $92 in change.

Amazed, I wandered off to a slot machine with my beer and counted my money. (You're not supposed to do this while you're sitting at the table, you know.) Yup. I confirmed that I had just taken advantage of that phenomenon I had earlier bitched about -- that being the status of 100 dollar bills as the typical smallest denomination in Vegas. Feeling guilty but still annoyed with the Bellagio for being more expensive than I can afford, I started gambling with the dirty money. Surely, thought I, the fates will ensure that I will lose this money because it does not rightfully belong to me. But no! The fates not only let me win, win, win with that money -- I was the beneficiary of at least TWO additional dealer mistakes. You ever heard the expression "I feel lucky"? Me too. But I never knew what it meant until right then. So I went over to the Pai Gow table -- THE $25 PAI GOW TABLE -- and played, fully expecting to finally rid myself of the filthy luchre and its progeny. BUT NO! Doubled, tripled, quadrupled my money.

At that moment I did what I am so rarely inclined to do -- I quit while I was ahead. Robert and I retired to the terrace of the La Fontana bar and enjoyed Irish Coffees and chocolate-covered strawberries in the company of some scary thugs who were almost certainly underlings of some random South American dictator doubtless installed by the CIA. Oh, and we watched the water dance thingie.

Now, you're thinking to yourself, "What a lovely story about Las Vegas. Sometimes it pays to be in the right place at the right time, does it not?" You then might mumble some cliche about beginner's luck to refer to my poker room experience, or karma to refer to the change overage or something. But you'd certainly think we'd reached the end of the line as far as the story goes, would you not?

Well, you'd be wrong. Wrongitty wrong wrong wrong as it turns out. Why? BECAUSE I'M CRAZY.

I began to worry obsessively about the moral transgression I had committed by, well, stealing the $90. I could see the bartender at the end of the day, discovering the discrepency. I could see the manager garnishing his wages -- or worse, reporting him to the INS who would then have him and his family returned to Paraguay or Uruguay or one of the Guays. Perhaps even the very country that is presided over by the brother-in-law of one the scary thugs watching the water dance to "One" at the La Fontana Bar. What began as a change fluke was quickly becoming, in my head, a Costa Gravas movie about death squads and "The Disappeared."

So I fretted about it but did nothing. Until I returned to work where something --- likely the tremendous guilt -- prompted me to regale the person whose moral compass I admire the most with this little story. Not surprisingly, she said I should send it back. "So, there's no casino exception?!?" I whimpered. "To stealing? No." she replied. In despair, but feeling relieved, I sent a check for $90 to the Bellagio with a letter explaining the date and time and location of the transaction and apologizing for the delay in returning my ill-gotten gains.

Yesterday, I received a letter from the Bellagio:

Dear Ms. {my last name},

Thank you for your kind letter regarding your recent visit to Bellagio and our Starting Gate Bar. We sincerely appreciate your concern regarding the cash transaction and the possible overage you received.

If there was an error on the part of our bartender, we will take full responsibility for any discrepancy and therefore, we are enclosing your check in the amount of $90.00.

Once again, thank you for your honesty and concern. We value your patronage and hope for a future opportunity to serve you.

Sincerely,

Letitia Gonzalez
Director of Beverage

So, I now have the money and can eat it too. Or something.

I'm off to watch the Spurs play the Trailblazers.

 
On the subject of cruelty to animals . . .

A few months ago, I took Lucy (my dog) on a walk in Prospect Park in Brooklyn. It was our first trip to the park during "off-leash" hours. I learned that there is a whole culture to the dog thing in Park Slope based on the following conversation:

Jen (to other dog owner): What breed is your dog?
Other owner: Oh, he's a mutt. I adopted him.
Jen: Oh, really! I adopted my dog, too.
OO: Well, actually, my dog was a rescue. He was found chained up in an apartment, practically starved to death.
Jen: That's terrible. I hope those people were fined.
OO: Fined! Puh-lease. I think if they're ever caught, they should be imprisoned.
Jen: Oh. That's an interesting solution to animal abuse. You mean like 10 or 15 days?
OO: No way! I'm talking 2 or 3 YEARS.

She was completely serious.



 
This and this are funny. Enjoy.

 
DENVER (Reuters) - People who abuse cats and dogs could find themselves in serious legal trouble if a bill passes in Colorado that would allow pet owners to sue for up to $100,000 for "loss of companionship," the measure's sponsor says.

"I want to hold people responsible who are intentionally cruel to animals," state Rep. Mark Cloer said Monday.

Cats and dogs are now considered "property" and with most not worth more than $50, it makes no sense to sue someone who tortures or kills a pet, the Republican lawmaker from Colorado Springs said.

Local media said the companionship measure would be the first of its kind in the country. Colorado already is one of 14 states that allow pets to "inherit" from their owners.

--This likely puts the Republican lawmaker in the uncomfortable position of advocating non-economic damages for harm to animals, but advocating the restriction of such damages for harm to people. Also, is anyone more disturbed about the 14 states that allow pets to "inherit" from their owners than about allowing pet owners to sue for loss of companionship? Maybe I could move to Colorado and set up a unique law practice where I get appointed "trustee" to manage all the property passing to pets. Sounds fishy.

 
I know Willy realizes that J. Daniel Breen is an actual person, but I wonder if Mindy realized that when she plucked his name out of the air? Has she, too, been following the effort to fill the last vacancy in the Western District of Tennessee? I bet Willy knows more about him than I do despite the fact that I worked on the same floor as the man for one year and occasionally socialized with his law clerk. Oh wait, maybe they were on a different floor. Do you know, OOTGWAT?



Monday, February 10, 2003
 
No one wants to get into a debate with Uncle Willy about the scariness, brilliance, blandness of each and every Bush judicial nominee for one simple reason: Uncle Willy has a rolodex in his head that includes the full names and not to mention full c.v. of every such nominee. I wish to avoid fighting with him about this for that reason; I cannot take the certain humiliation. I have a feeling it would go something like this:

Me: Oh, and that OTHER guy. That guy REALLY sucks.

W: Do you mean J. Daniel Breen or Thomas M. Tymkovich?

Me: Uh. Both of 'em. They both SUCK. They like, hate women and children and stuff.

W: No they don't. [insert actual facts about both nominees here...]

Me: (rolling eyes) Whatever.

You'll enjoy the above dialogue more if you pretend I am using Letterman's dumb guy voice.

That being said, for those of you who are trembling in your Bruno Magli's about the "legion" of judges Bush is pushing through the Senate, I urge you to read The Rehnquist Choice by John W. Dean. Puts matters in perspective.

I do like RFL's use of the word "legion" though. It evokes the image of a zombie army of judicial appointees. Lots of half-decayed corpses in suits stumbling slowly across a field.


 
I'm sure neither RFL nor I wants to get into a long debate over the scariness, brilliance, or blandness of each and every Bush judicial nominee. We won't reach much agreement.

So I propose instead that we focus on common ground, and that when life hands us a lemon, we look for the silver lining:

If there is a real, honest-to-goodness filibuster of Mr. Estrada, I think we can all agree that Ted Kennedy's attempts to carry on debate at 3 am are going to be Appointment TV worthy of the E! Network. Anna Nicole herself might be more articulate, and that's during daylight hours. This could do for C-SPAN2 what Trading Spaces did for TLC. In fact, I wonder if the whole Estrada nomination isn't a clever scheme to boost ratings -- hey, it is sweeps period, isn't it?

Think about it.

Also, yes, Dear Readers, I do know that the silver lining of a lemon is called the "zest."

 
I own two books by Guru Garner: The Winning Brief and A Dictionary of Modern Legal Usage. I love them both. But I would be very pleased if Mr. Garner would shut up with this nonsense about putting case citations in footnotes instead of in the text. I do not like that. Not one little bit. This whole theory that the case citations break up the flow and distract the reader is silly. You know what does break up the flow and distract me? Footnotes. If Bryan Garner was (were?) here right now I would smack him on the hand with a ruler -- or just continually use bad grammar -- until he retreated from this untenable footnote position.

Speaking of grammar, I have this to say about my boyfriend. Is there anything sexier than my boyfriend when he talks about grammar? Some of you might think so. I assure you that you are wrong.

Here's a great article about poker.

 
For everyone's useless information: now that we have that counter-thingy at the bottom of the page up and running, we now know, at any given time, where the last 50 visitors to our blog came from. The vast majority have been from, unsurprisingly, How Appealing. But one has hit this site from Attorneys Suck, and a couple from Bag and Baggage. The most surprising hits, however, have come from Google searches. One (un)lucky visitor happened upon our blog after searching on Google for "Bath Decals." That visitor no doubt came away with some sage advise. Another searched for "American Idol" and "J.D. Adams" and came across this site. The most amusing by far, though, is the visitor who searched for "photo man holding salami" and found this blog! Way to go, Mark! If anyone is interested, simply click on the counter at the bottom of this page and click on "Last 50 Visitors" at the web site you are directed to. See for yourself and be amused. Cheers to infamy!

 
Obviously I have not yet experienced Mr. Garner's tutorial. Otherwise I would not have been using all those post-conjunction commas. Gosh. Now I'm ashamed.



 
When Bryan Garner spoke to my lot, he stated not only that one should begin 20% of one's sentences with conjunctions, but also that one should never use a comma after that initial conjunction -- unless the next word is "alas."

But, alas, many of my colleagues were absent from that session and missed this valuable piece of advice.

 


Dear Mark,

No.

Love,

Mindy

 
In keeping with the Fashion Principle, "What's old is new again," I proudly declare my usage of the serial comma. Blah, blah, and blah.

Also, I have ALWAYS been a fan of beginning sentences with conjunctions. But, I think it should be used sporadically for greatest effect. So, I try to limit such usage to once every couple of paragraphs. And, I think more writers would be well-advised to do so.



 
I agree with Mindy's explanation re: 99/1, except that not all of Florida is totally terrible - like can South Beach be exempt from the rest of Florida?

 
BLEG))SAHG+EA@! There's so much I want to say, I cannot type fast enough.

First of all: punitive damage awards in Florida. Frankly, nothing that happens in Florida surprises me. Even before the Election 2000 nonsense, I have been displeased by Florida's continued inclusion in the union. The whole place smells like serial killers. (Have you noticed that no one has ever tried to dub the 11th Circuit the second-highest court in the land? Why is that? I think I'll start a movement.)

My simple explanation of that verdict is: 1) Everyone feels terrible for the family because something very, very bad has happened to them; 2) No one wants to "make it worse" by allocating any kind of serious responsibility to the parents for this accident -- both because of reason number one, and because of the implications for our collective child-care failures; 3) the gate-fix that could have (I presume) averted the accident was so minor that it galled jurors; and so 4) allocate the responsibility to the nameless, faceless, management company because EVERYBODY and I MEAN EVERYBODY hates landlords. Recall the caped, mustachioed villain of 19th century melodramas? What was he? A LANDLORD. ("I can't pay the rent." "You MUST pay the rent.") A landlord who tied his tenants to railroad tracks and paper mill saws to extract payment. Sins of the fathers, man.

As for punitive damages: do NOT get me started. I'm looking forward to seeing what the Supremes do with the State Farm case. Although it does not sound like an apartment complex in Florida could have a nation-wide policy so its likely the punitives were not extraterritorial -- I am taking this opportunity to say that I hope to goodness the Supreme Court explains a little more what exactly they mean when they talk about stuff like that. Cuz I'm still confused.

More responsive post to follow -- must go work out now. But, here's the fact section of one of my favorite state-court tort-related cases:

Respondent's client sustained serious permanent physical injuries that disabled him when a school bus hit and ran over him with a rear tire while he was riding a bicycle in South Minneapolis. The accident crushed his pelvis, and left him in a coma for approximately 1 month. By the time of trial, the client was able to walk with the assistance of a cane. Before the accident, the client was employed as a checker and bagger at a grocery store and as a greeter at a restaurant. His employment background consisted of similar unskilled and physical labor positions. At trial, the client asserted that his permanent injuries prevented him from performing physical-labor-type jobs and that he did not qualify educationally or intellectually for other types of employment. Therefore, he sought damages for future loss of wages and future diminished earning capacity.
Complainant presided over the personal-injury action and assigned one of his two law clerks to assist with the action. The clerk assigned by complainant to assist in this case is physically disabled. He is paralyzed from his mouth down and has difficulty breathing and speaking. He performed his duties as a law clerk with the assistance of a large wheelchair, respirator and full-time attendant. The disabled clerk was present in the courtroom at the outset of the personal-injury trial, assisted with jury selection, and remained in the courtroom throughout the trial.

On the first day of trial, respondent's client expressed reservations about his ability to receive a fair trial grounded on the fact that if the disabled law clerk continued to work in the courtroom, the jury would compare the clerk who was more severely disabled yet able to work, to himself, who was less severely disabled and claiming an inability to work. Later that same day respondent made an oral motion outside the presence of the jury, "for a mistrial and another panel of jurors without your law clerk present or in the alternative that this case be assigned to another [j]udge." Respondent gave the following explanation for his motion:

I will be asking the jury to award future loss of wages, future diminished earning capacity. I do not believe a jury when they look at the comparison with your law clerk, who's obviously gainfully employed, working in the courtroom under great handicap and great duress, will be able to award anything to my client under those circumstances.
Respondent stated that he brought the motion with "great reluctance" and acknowledged that the motion was "outrageous and distasteful for the [c]ourt." He did not support his motion with any legal *455 authority. Stating that the motion was "un-American," complainant denied the motion.

The jury found in favor of the defendant on the issue of liability. Subsequently, respondent brought a written motion for a new trial. Respondent asserted the presence of the disabled clerk in the courtroom as one basis for the motion. Respondent again stated that his objection to the clerk's presence in the courtroom was made with "the greatest reluctance," but he argued that the jury would compare the disabilities of the law clerk with the injuries of his client. Again, respondent failed to cite any legal authority in support of his position.

Complainant filed a complaint with the OLPR. Complainant argued that respondent's objection to his clerk's presence in the courtroom violated Rules 3.1, 4.4, 8.4(d), 8.4(g) and 8.4(h) of the Minnesota Rules of Professional Conduct. The matter was assigned to the Second District Ethics Committee for investigation, which referred the matter to the Director. The Director issued an admonition to respondent. Pursuant to Rule 8(d)(2)(iii), RLPR, respondent requested that a Lawyers Professional Responsibility Board Panel review the matter.

The Panel held a hearing. Addressing his reasons for bringing the motion for a mistrial respondent stated, "I was thinking of fairness and I was thinking of my client and his wishes with respect to at least raising the issue to the judge." He also asserted that his duty to ensure his client received a fair trial overrode his reluctance to bring the motion. Finally, he stated that he would not have made the objection in a case that did not involve disability issues that might lead to similar comparisons.
Responding to questions concerning the written motion for a new trial, respondent maintained that he only raised the issue of the disabled clerk's presence in the courtroom to preserve the argument for appeal. Respondent also asserted that he did not cite to any legal authority in the motion because his firm was unable to locate any relevant law and the issue was one of first impression. Respondent also acknowledged that he never made any formal apologies to the disabled clerk, but argued that contact with the clerk would have been inappropriate once the complaint was filed with the Director.

The Panel concluded that respondent violated Minn. R. Prof. Conduct 3.1 and 8.4(d) when he brought the written motion for a new trial and issued an amended admonition to respondent. Addressing first the motion for a mistrial, the Panel found that although the motion was "ill-considered," respondent's conduct in bringing the motion did not violate the Minnesota Rules of Professional Conduct. Turning to the subsequent written motion for a new trial, the Panel found that the objection to the disabled clerk's presence in the courtroom was improper and violated Minn. R. Prof. Conduct 3.1 and 8.4(d). The Panel found that respondent had "ample opportunity" to find legal authority to support the motion and to reflect upon the appropriateness of the motion. Further, the Panel concluded that respondent's position was unsupported by legal authority; thus, he had "no reasonable expectation that his motion would prevail."

On appeal, we are presented with two issues: (1) Whether the Lawyer's Professional Responsibility Board Panel's conclusion that respondent violated the Minnesota Rules of Professional Conduct is clearly erroneous? (2) If respondent did violate the Minnesota Rules of Professional Conduct, did the Panel act arbitrarily, capriciously, or unreasonably in affirming the admonition issued by the Director?

In re Charges of Unprofessional Conduct, 653 N.W. 2d 452 (Minn. 2002).

I don't know about you but if I had been that lawyer I would be guilty, guilty, guilty of unprofessional conduct.

 
So, last week, The Firm forced all the first years to attend a very rewarding writing seminar with Bryan Garner, editor-in-chief of Black's Law Dictionary. We all realized quickly that we were in the presence of celebrity, of literary greatness. The Firm had not warned us beforehand that our speaker would be anyone of consequence, but we all put aside our egos and worries about "missing work" to study the minutiae of legal writing.

As a tribute to Mr. Garner, I'd like to reveal three grammar school writing myths that this brief seminar dispelled me of.

First, as most of us learned in grade school, it is improper to end a sentence with a preposition (see previous sentence). But Bryan convinced us that this is a MYTH perpetuated by some 18th century English scholars of Latin who observed that in Latin, no sentence can end with a preposition, so English should follow Latin's lead. This, however, is not the rule. Quoting Bryan: "Consult any dictionary of English Usage and you will find that not one insists ending a sentence with a preposition is bad grammar." When you speak, do you say: "He's the friend with whom I am going" or "He's the friend I'm going with"? Likely, it's the latter. So writing is no different, leave those prepositions hanging and be proud.

Second, no sentence shall begin with a conjunction. An outright lie by the nuns who taught me grammar. According to the learned Mr. Garner, about 10% of all the sentences on the front page of the New York Times or other reputable publication will begin with a conjunction (and, but, or so) - and without a following comma. It is perfectly acceptable, and, for example, "But" is much preferrable to the hated "However, "

Third (because all examples come in threes), the possessive case for any word that ends in "s" is s'. Not true. Apparently, only plural words that end in s take an apostraphe without a following s. Singular words that end in s take 's. For example: "the witness's testimony" is correct. So is: "the witnesses' testimony." And "Congress's legislation" is correct. Go figure.

I'll add a fourth for good measure. Most writers have discovered that the "serial comma" is out of fashion. Law firm names are notorious for this: "Cravath, Swaine & Moore." According to Mr. Garner, striking the comma before the "and" is something journalists dreamed up to save space. It is correct and preferrable in order to resolve ambiguities to include the serial comma: "apples, oranges, and pears." But I think leaving it out is sort of trendy, so Mr. Garner may have difficulty correcting the English speaking world on that one.

Now for some humor. A lot of us First Years were frank with Bryan - we said: well all this is great, but [insert favorite partner's, counsel's, or senior associate's name here] will just make me change the sentence if I write like that. His response: just inform them, with respect of course, that you've looked this exact issue up in your favorite Dictionary of Modern American Usage and, in fact, you are right. (Then duck as the stapler flies over your head).

 
But, 99/1? Why even bother with the one percent liability for the parent? It reminds me of the news coverage of the recent sad story in Newark of the little boy who was found dead in a basement with his starved siblings. So much of the reporting on that story has focused on the negligence of the state agency that was supposed to have been "on the job." I think the problems within the NJ child welfare agency need to be aired, but in doing so, I don't think the bad acts of the mother and the other "caretakers" of those children should be ignored. In some ways, the mother has been presented as a victim, and I find that to be disturbing.

As for the "legions" of judges W. might push through the Senate. . . I'm just not so sure that's accurate. Even if he's elected to another term (which looks pretty likely given the candidates being fielded by the Dems thus far), he will only be able to fill so many vacancies in each circuit. I figure the most he'll be able to appoint on the Supreme Court will be three. Of course, three + Scalia and Thomas makes a solid majority, but they still only get to rule on what gets up to them. And, on the Circuit level, a panel of three (even assuming there are tons of panels comprised ONLY of activist conservative judges) can be reversed by the full court en banc. Bush can't get rid of the current judges (unless America falls asleep and he amends the constitution), so I think we're ok for awhile. I think it would take another Bush term and probably 2 or 3 more presidencies in which similarly activist conservative judges are appointed for there to be a real crisis in the judiciary. History has shown that is unlikely.



 
OK, Jen, you caught me. I'm propagandizing. I can't give you the name of any judge that would fit my description because, A: I don't believe Estrada is as bad as my worries (unless he was outright lying at his hearings, which I just can't believe); and B: I'm worried for precisely the reason you quote, Jen: "it sounds kinda like President Bush telling us that we should bomb Iraq because he thinks they might do something bad someday." Let's face it - when it comes to any decision by W., I am paranoid that we are not getting all the facts and thus a generation of advances in civil rights will be wiped out by the legions of judges he will push through the Senate, and I don't pretend to have any evidence to back up my paranoia. It's a sixth sense kinda thing.

And Mark, congrats! We want stories!

 
Jen. Here's what I think about the 99/1 percent split. I think this country is scared to death of even hinting about strict liability for parents in situations like a pool accident in an apartment complex, so I'm sure the split is designed to not open any doors into that arena. This may be naive, but that's what I'm smelling.

I need a facial.

 
Ok -- I realize that I've been in a posting frenzy this morning, but I don't want to start writing a certain opinion, so I'm doing this instead. Did anyone read about the punitive damages returned to a family in Florida last week? They were awarded $100 million in punitives after their two-year-old fell into a pool. Here are the facts: Plaintiff family lives in apartment/condo complex in Florida that is owned/managed by the defendant management company. Father was bbq-ing while watching several children play outside, including his daughter. Father left children unsupervised to put something inside. He was gone for about 5 minutes. During that time, his two-year old daughter wandered over to the pool area, opened the gate because the latch was broken, and fell into the pool. She now eats, breathes, etc. through tubes. The defendant had received complaints re: the broken gate. Under Florida law, the defendant had a duty to maintain a child-safe latch on the pool gate. The jury found the father 1% and the defendant 99% responsible.

Clearly, defendant is responsible, at least in large part, for the injuries sustained by the toddler. But 99%? What do y'all think about that? Also, what do you think about $100 million in punitives for that tort?



 
By the way, we are at the top of Bashman's list of popular blogs today. True, the list is in alphabetical order, but we're in a different category than we were in last week, and thus higher on the page. Yeah!



 
Dave and I spent a great weekend in Burlington, Vermont. I tell you, there is nothing more jarring to the nerves that returning to NYC/NJ after a weekend in New England. As much as I value the peacefulness and the vast expanses of pine and snow (which was abundant this weekend) it just brings into painfully sharp relief the ugliness of the city when you return. Sigh.

I know what you're thinking -- Philpott has a bad case of the Mondays. You're right.

I think craps sounds scary.

In other news -- our favorite BLS student, Mark Merriman has coached his Con Law team to VICTORY in North Carolina. That's right, folks, Mark Merriman et al brought home the first place trophy on Saturday after defeating Boston College. And no one fell down. Hooray for Mark!!!!



 
I would like to know what proof RFL has that Bush's nominees (and perhaps we should name them so we know which ones we're talking about) "will not follow the law, . . . will not follow precedent, . . . will push the law farther right trampling on our civil rights while misreading, misquoting and ostensibly distinguishing the precedent that should rightfully bind them." I mean, it sounds pretty scary, but I just don't see the evidence for the proposition. To me it sounds kinda like President Bush telling us that we should bomb Iraq because he thinks they might do something bad someday.



Sunday, February 09, 2003
 
"I want a fuckin' lawyer, man. I want Bill Kuntsler.... or Ron Kuby...." --- The Dude, "The Big Lebowski"

Fantastic news, Readership. Through a bizarre series of events, fellow-blogger and serious boyfriend Robert/Rafael has made it up here for a clandestine visit. This makes it two weekends in a row, people, that we've seen each other. And.... the plan is I shall see him again next weekend. This is a downright coup.

So today we went gambling with my friend, Ben. Robert taught Ben how to play craps. I got excited during the explanation and decided I had to play. Consequently, I ended up losing close to a hundred dollars within 25 minutes of entering. This is an excellent example of the inefficiency of my system of mental accounting: I cannot come up with 25 bucks for Oregon Public Radio, but I have no problem throwing 100 dollars away during three hours of gambling. Then, this evening, Robert and I met my friend Erin and her husband Steve at the weirdest restaurant in Portland.

After a lovely evening at said restaurant, Robert and I are watching our favorite movie, the aforementioned Big Lebowski. I'm telling you. There is not a better movie I own on DVD. Of course, I do own both Exit Wounds and Dude, Where's My Car. Competition amongst my DVD's for favorite movie is not that intense.

We're delighted to visit the blog and see that people are reading our blithers.

By the way, are you all aware that there will soon be a sequel to Dude, Where's My Car that is entitled Seriously Dude, Where's My Car. Just think -- you would not know that were it not for this blog.