August 01, 2015
I was a Boy Scout, and eventually an Eagle Scout, growing up in suburban Chicago and Cincinnati. What I learned in scouting means a lot to me; I use it, probably instinctually, every day. Naturally, national news about changes to BSA's local or field leadership policies interests me.
In the 1960s and 1970s, at least in the Cincinnati suburb of Indian Hill, every adult scoutmaster, his adult assistant scoutmasters and all the adult men who pitched in to help at our many, many meetings and (for me, at least) 40 to 50 camping trips, was always a father of one of the boys in my troop. My Dad, who traveled on business nearly every week, pitched in on camping trips from time to time.
So I have little reaction to the BSA decision on July 27th to allow openly gay leaders to participate in scouting. I don't have a good picture of what's happening here culturally. Drawing a blank, if you will. I am, however, amazed how much this traditionally conservative organization has moved in the last few years.
Also, I did like the way this development was covered by the LGBT press. The day it happened, the enduring Washington Blade, almost an underground publication when it started 46 years ago and now arguably the most influential LGBT news source in the world, reported "Boy Scouts to Allow Gay Leaders". In fact, the Blade--a weekly tabloid with daily online reporting--chose the same story 4 days ago on BSA's policy change as the lead article in its weekly edition, which came out last night. The Blade begins:
Members of Boy Scouts of America National Executive Board on Monday voted to end the organization’s ban on openly gay adults from holding leadership positions.
The body by a 45-12 vote margin approved a resolution on the issue the Boy Scouts of America Executive Committee unanimously backed earlier this month.
The new policy, which takes effect immediately, would allow openly gay adults to become scoutmasters and unit leaders within the Boy Scouts of America.
It will also allow gay people who were previously removed from leadership positions because of their sexual orientation to reapply for them.
July 31, 2015
You have enemies? Good. That means you've stood up for something, sometime in your life.
Here's some of the best advice on hiring, staffing and re-staffing anyone can give. Please don't stand behind, endorse or recommend a candidate for employment, partnership or board membership--especially candidates over say, the age of 35--on grounds that he or she "has no enemies" or something to that effect. This is not a compliment. Hearing that someone is "a team player" isn't troublesome because it runs the spectrum of Elwood P. Dowd (from the 1950 Jimmy Stewart film "Harvey," about a beloved if quirky man who drinks with his imaginary 6 foot tall rabbit), Willy Wonka and Marie Osmond (all too nice) to Leona Helmsley, Leatherface and one far-out mother named Robert Edward (Ted) Turner III (not known for nice). But saying someone has "no enemies"? It's an insult. It means that he or she hasn't even been in the game, Jack. No bueno.
Do share a drink with Elwood P. Dowd and his pal Harvey. But don't work with either of them.
July 30, 2015
Rule 8 is Think Like the Client--Help Control Costs. The 2006 Explanatory Note for Rule 8--we reluctantly decided that an Advisory Committee Notes regime was a bit grandiose--begins this way:
Ask an associate lawyer or paralegal what a "profit" is. You will get two kinds of answers. Both answers are "correct" but neither of them helps anyone in your firm think like the client. The answers will be something like this. (1) "A profit is money remaining after deducting costs from receipts." This is the correct young transactional/tax lawyer answer. Or (2) "it's money left over at the end of the hunt." This is the correct fire-breathing young litigator answer.
The right answer?
A profit is a reward for being efficient. And until a lawyer, paralegal or staffer gets that, she or he will never know how a client--or a law firm partner--thinks.
July 29, 2015
How did an illiterate and very likely married young Jewish day laborer from a Galilean backwater who rose up against an entrenched Roman-Jewish priesthood establishment as a messiah and was killed by the regional establishment like a dozen other messiahs in the same region during the same period--and for the same crowd control-related reasons--become the focal point of a major and enduring world religion? "Zealot: The Life and Times of Jesus of Nazareth" is the best selling book by Iranian-American author Reza Aslan published by Random House in mid-2013. Zealot is not going to make everyone happy but it's a brave, competent and well-written sliver of history. Part scholarship and part clever provocation.
Detroit, July 19, 1970
July 28, 2015
If voting changed anything, they'd make it illegal.
--Emma Goldman (1869–1940) Anarchist, Activist, Writer, Leader, Bad-Ass.
Nobody will ever deprive the American people of the right to vote except the American people themselves and the only way they could do this is by not voting.
-- FDR (1882-1945) Patrician, Activist, Charmer, Leader, Bad-Ass.
No passion in the world is equal to the passion to alter someone else's draft.
--H.G. Wells (1866-1946)
Wells meets with Charlie Chaplin.
July 25, 2015
Above: Peirce Mill in 1918, already nearly a century old, located at the key Washington, D.C. crossroads of Tilden Street and Beach Drive on Rock Creek Park. Below: One view of the mill and part of its extensive grounds since the 2011 restoration. The mill now runs again where it started. Issac Peirce built it in either 1820 or 1829. Friends of Peirce Mill offer this quick but thorough history of its operations and uses in the last two centuries. Journalist, author and environmentalist Steven Joyce Dryden helped other locals with the restoration. Dryden later wrote extensively about the mill's long history in Peirce Mill: 200 Years in the Nation's Capital (Bergamot 2009), 108 pages. Dryden, a former UPI reporter stationed in Europe, is also author of The Trade Warriors: USTR and the American Crusade for Free Trade.
If you work for a peer firm, you will encounter me or someone very much like me. [Y]ou cannot avoid the essence of my character if you aspire to succeed... I or some form of my embodiment will exist to make your existence as uncomfortable and unpleasant as it can be. Welcome to the legal profession you self-entitled nimrods have created.
--Partner Emeritus, commenting at Above The Law, 2009
There is a reason that my late Union Street, Nantucket neighbor David Halberstam did not devote a chapter or two in his highly admired The Best and the Brightest to my friend Partner Emeritus, celebrated Dean of Above the Law's Commentariat. Sometimes, a Polo injury at Meadowbrook will change the course of world history--and not for the better:
I remember the Summer before the Tet Offensive so vividly.
I recall entering the MEPS station at Fort Hamilton in Brooklyn where I took my physical examination, which was a requirement prior to being shipped out to OCS. I wanted to serve my country and kick g**k posterior so badly that I even let a proctologist stick his index finger in my rectum while I coughed. Alas, a Polo accident caused me to incur a hairline fracture in my pelvis and I was disqualified from service just two weeks from my deployment date.
I am confident that had I gone to 'Nam, I would have deployed a strategy that would have won that war. They don't teach this at the Army War College but my endgame to the Vietnam War would have been to round up all the hippie stoners and opium addicts in the States and parachuted them into Vietcong territory. I would have used the MK Ultra Program to convince the paratroopers that the Vietcong had stolen their drugs and that the opium fields would be their prize for killing every last member of Charlie.
West Point would have been renamed after me but I accept that God had other plans for me (i.e., conquering the legal profession and establishing myself as a legal icon).
--PE comment to 3 Things Law Students And Young Lawyers Can Learn From Podcaster-In-Chief Marc Maron, ATL June 26, 2015.
Even more than about Charlie, what Partner Emeritus worries about most is gene pool dilution and mediocrity in the legal profession. We will get to that soon enough. First, though, we'll do a few posts about PE's younger years, including a few sexual adventures during the 1960s-1980s. In the meantime, below is the famous negotiation between Yank actor Matthew Modine as "Joker" and British actress Papillon Soo Soo as "the Da Nang hooker" in Stanley Kubrick's 1987 war satire Full Metal Jacket.
Books are fatal: they are the curse of the human race. Nine-tenths of existing books are nonsense, and the clever books are the refutation of that nonsense.
--Benjamin Disraeli (1804-1881)
Peirce Mill in 1918. Issac Peirce, a millwright, built it in either 1820 or 1829. The mill runs again where it started: Tilden Street & Beach Drive, Northwest, in Rock Creek Park, Washington, D.C. Journalist and environmentalist Steven Joyce Dryden helped other locals to restore Peirce Mill. He later wrote about the mill and its history in Peirce Mill: 200 Years in the Nation's Capital (Bergamot 2009), 108 pages. Dryden, a former UPI reporter stationed in Europe, is also author of The Trade Warriors: USTR and the American Crusade for Free Trade.
July 24, 2015
Two days ago we posted about the movie Trainwreck which celebrates backfired male Metro-sexualism as well as crude, dumb, fat women getting big enough to have their own zip codes. The movie is likely the high water mark of The Great Neutering launched in America roughly 15 to 20 years ago. We urge any non-neutered Gen-X folks, all Baby Boomers and every lucid, ambulatory Silent or Greatest Generation person to see Trainwreck. Know your enemy. Reeducation of under-35 folks who worship mediocrity and androgyny is still possible.
Save the people. Save the children. Save the country.
July 23, 2015
Eternity is a mere moment--just long enough for a joke.
One of the best tech things in my life is my Zite aggregator/curator for media. Zite, however, is not always perfect in anticipating my reading tastes. An alarming number of unwanted articles and posts I receive these days reflect how lame and helpless and confused and lost and unhappy we Westerners are. We all have wonderful instincts about making ourselves happy that do not require Mr. Rogers-esque explanations about the importance of waking up every day, breathing, peeing, eating, "mindfulness", overcoming shyness and social ineptitude, the impoliteness of screaming our own names in the middle of great sex (which I will continue to do anyway), reading books that aren't garbage, brushing our teeth and drinking more water. Get the net, people.
Vinz Clortho (a/k/a Louis Tully), Key Master of Gozer. Vinz/Louis needed all the life hacks fellow lames could write about and convince him he needed on the Internet. But do you? Image: Columbia Pictures.
July 22, 2015
On Sunday I saw "Trainwreck" starring Amy Schumer at a movie theatre in DC's Gallery Place. If you're interested in seeing a romantic comedy about a new under-40 America in which women are fat and stupid, and all guys are sexually ambivalent and useless, this is your film. Even German Shepherds in this flick seem a little light in the loafers.
July 21, 2015
Ernest Miller Hemingway (July 21, 1899–July 2, 1961) at the stone mansion on Whitehead Street in Key West with one of the many famous, if often deranged or six-toed, Hemingway cats.
July 20, 2015
Politico's European Edition: The West's never-ending political correctness wankfest now aims to make America's lamest generation ever even weaker.
Personally, I wish I had more time to blog about certain issues but work keeps interfering. "Political correctness" is one. PC culture has turned some of my smarter liberal friends into precisely what they claim to despise: intolerant and extreme right wingers with a seemingly religious zeal to control language. They apparently believe that dictating what is safe to say and write--and not safe to say and write--will speed our progress towards a more equal and less hurtful society. And now this madness is getting woven into our 50 or 60 truly great American colleges at the level of the great books read by 18 to 22 year olds. It threatens to turn what is, charitably put, our hands down most sheltered, most thin-skinned and most anti-intellectual generation ever into even bigger half-bright wimps. With great restraint, Michael Moynihan at Politico's European edition offers us Western Lit, shot to death by ‘trigger warnings’. Subtitled: "American universities discourage reading of Ovid, Lolita and The Great Gatsby." What he's reporting here is embarrassing--but it's exactly what we can keep expecting from the West's Never-Ending Political Correctness WankFest. Moynihan begins:
Boring bien pensant opinion in Europe has long maintained that low-brow American culture--all the greasy fast food, oafish Hollywood shoot ‘em up films (often starring a muscle-bound Austrian, Belgian, or Swede), and schlock television--has done incalculable damage to highbrow European culture. And it has happened with the assent of the average European, who happily scarfs down a McRib sandwich, feet swaddled in Air Jordans, while queuing for the latest “Transformers” film.
But there is a more pernicious American cultural invasion, as irritatingly destructive as the North American gray squirrel and, unlike the Hollywood blockbuster, wholly immune from free market pressures. It was noticed in 1994 by a reporter for Reuters, who gravely reported that the scourge of political correctness, “an American import regarded by many Britons with the same distaste as an unpleasant virus, finally seems to be infecting British society.” First it poisons the local universities, then within a generation wends its way into the broader culture, wreaking havoc on the native intellectual ecosystem. It’s the most odious, implacable, and least remarked upon manifestation of American cultural imperialism.
And so here we are a generation after that Reuters report, with sensible Europeans now fretting over a mutated strain of that old virus. Writing in the left-leaning magazine The New Statesman, British academic Pam Lowe worried that a new fad in American academia called the “trigger warning” would soon touch down in the UK, requiring the sensible professoriate to valiantly resist the boneheaded ideas of activist students. In his new book, appropriately titled “Trigger Warning,” British writer Mick Hume warns that trigger culture has already “spread across the Atlantic,” and supine European college administrators have given in faster than Marshal Pétain.
July 19, 2015
Lots of conversations with persons who approach your firm with a legal issue do not result in your getting hired. The matter might be too small, too insubstantial or not the kind of law you do. You usually know in the first few minutes. But very often the time from the initial call or meeting to saying "no" is protracted. You may need to review documents, or speak with someone they asked you to contact. However, that may take a few days, and involve a few conversations and emails.
In those cases in which you need to put off saying no, write a declination letter. Email. Regular mail. Something. Put it in writing that you are not her attorney. It's easy. It simply says you are confirming that you and your firm are NOT going to represent him, her or it in the matter at hand. It does not say why. It does not need to say why.
If the would-be client is an "unsophisticated user of legal services" or, in your view, a stone crazy person, the declination letter is especially important. You may even want to write one if there was only a short phone call or meeting to evaluate the matter followed by an immediate verbal "no". Again, if there may be any misunderstanding, write a declination letter. And do it quickly.
1. Do you really need to do this from time to time?
Answer: Yes. At least 4 or 5 times for would-be clients in a large or BigLaw firm during your career. In the smallest firms count on doing it at least 50 times in the course of a career. If you do plaintiff's PI or represent Mom and Pops business clients, you may do it more.
2. Who do you send them to and when?
Answer: (a) To would-be clients in situations where you take more time than usual to evaluate the matter they bring to you before saying no, (b) to unsophisticated users of legal services or, and most likely, (c) to crazy people who might tend to rely on your legal representation going forward despite the fact that you have declined the representation. Do it as soon as possible.
3. Why? Why would you ever need to send a declination letter?
Answer: Because unsophisticated and crazy clients are legion. They may not listen well. Or no one will represent them--and they may be so desperate for someone to move forward with their marginal or "dog" case that they in effect hijack you and your firm in hopes that you feel duty-bound to act or that you will change your mind. This is particularly true if a jurisdictional deadline is looming.
July 18, 2015
Crowdsourcing publisher Double Bridge Publishing was launched less than a year ago by Washington, D.C. businessman Richard O'Brien. A Long Road Home, a first novel by longtime journalist Dennis Maley, is one of six new titles O'Brien's upstart company has out this summer. Set initially in Savannah, Georgia, Maley's is a coming of age story featuring Jenny Harris, an ambitious but struggling young singer who, after losing her mother to cancer, find herself more alone, lost and unsure of herself than ever. Jenny unexpectedly meets her biological father, the debauched and isolated Irish-American writer T.K Connolly. The pair find themselves together in New Orleans, where each must attempt to find the strength to repair a damaged life.
Out of the quarrel with others we make rhetoric; out of the quarrel with ourselves we make poetry.
--W.B. Yeats (1865–1939)
July 17, 2015
The Headless Horseman Pursuing Ichabod Crane, 1858, by John Quidor (1801-1881) Smithsonian, Washington, D.C.
July 16, 2015
If you work for a peer firm, you will encounter me or someone very much like me. [Y]ou cannot avoid the essence of my character if you aspire to succeed... I or some form of my embodiment will exist to make your existence as uncomfortable and unpleasant as it can be. Welcome to the legal profession you self-entitled nimrods have created.
--Partner Emeritus, commenting at Above The Law, 2009
To the dismay of many, Partner Emeritus, the urbane, well-heeled lawyer, writer, satirist, culture critic, enemy of the militantly mediocre and hands-down Dean Swift of Above the Law's wise if wonderfully deranged Commentariat, has caught this blog's attention. With humility and honor, we today announce that "Best of Partner Emeritus" will be a feature and its own category here at What About Clients/Paris? Probably forever.
Among other subjects, we will spotlight PE's views on dogs, lawyers, brothels, sexual techniques and remedial programs for broken GenY JDs with Tourettes, Sydenham's chorea and/or lifelong spine problems.
We begin simply. We love a short but busy comment PE just made about his dog Simeon and his love for dogs--which for our money are about the best thing on this fourth-rate planet anyway. It follows from yesterday's ATL piece, Prosecutor’s Pooch Spawns Epic Email Bitchfest by ATL's founder, ageless boy wonder and polymath David Lat:
Everyone here on ATL knows I am a dog lover. In the early '90s, a German colleague suggested that I own a dog so I can understand how to be patient with associates. I purchased my first Afghan hound, the late Algernon, in 1995 and I trained him to be a show dog champion. Algernon then sired my current canine companion, Simeon, who was a favorite to win the 2008 Westminster Dog Show before someone sabotaged his chances by slipping contaminated food in his kennel the night before the competition commenced.
This all being said, the AUSA who complains about doing his job on the weekend is in the wrong here. The workplace is not his home and he simply cannot act as if he were home (e.g., take off his mustard stained chinos and walk around in his underwear, etc.). Moreover, what if the dog bites a co-worker? Can the co-worker file a workman's compensation claim or does the lout who brought his dog to the office have separate liability insurance for the dog? As much as I detest government bureaucrats, I have to side with the dragon lady office manager in this dogfight.
Simeon cruising London's Hyde Park?
The Best of Partner Emeritus: Introduction/No. 1
July 14, 2015
Taking of the Bastille, anonymous artist, circa 1791, oil on canvas, Musée de la Révolution, Château de Vizille.
Complaints against business clients--even "bad" and poorly--grounded complaints--carry messages about problems you can address now.
Litigation against a business client--even frivolous or ill-advised litigation--will usually cast a spotlight on things you can fix now.
You don't believe me? Take a look at the last three or four complaints filed against any of your clients. Or, even better, review again that one you just received today. If you are (inside or outside) counsel, you are presented with all manner of improvements and changes a good client can and should make to its operations right away. If you are a litigator, you might be well advised to get that complaint to a non-litigator down the hall who may work on that client's day-to-day business.
Fix things now. Before you respond to a complaint. A client problem--it will usually fall in the category of "imperfections" or "operational glitches" rather than actual wrongdoing or illegality--is probably sunning itself in the filed complaint and looking up at you. Address it now, before the next order is received, before the next shipment is made, before the next employee termination, before you execute the next license agreement. Get that problem to someone who can fix it, not litigate it. Litigation almost always hands you the chance to add long-term value immediately--and solve an operations problem before you finish the barest outline of the Answer or Rule 12 Motion. So get that complaint to that geek non-litigator down the hall or on the 10th Floor.
Here are simple, pedestrian and day-to-day problem areas complaints tell us about:
1. Legal but lame or muddy contract or related terms and conditions language inherited from a predecessor company. E.g., Confusing or poorly drafted choice of law or ADR provisions, which always seem to get litigated preliminarily in an expensive opening sideshow that delays focus on the merits.
2. Legal but bad waste storage or waste handling methods which "comply"--but just barely--and makes a state or federal agency or private citizen look a little too hard and long at your client's facility next Spring.
3. Legal but bad HR practices. Consider here the repeated "un-classy" firing--a termination which is legal but brutal and will get you sued. You win handily--but fees to obtain summary judgment may exceed $100,000.
Long-term, you're not hired--as outside counsel or a GC--to have a good defense, or a "good case". You are hired to have: (a) no future issue, (b) no investigation (c) no dispute and/or (d) no lawsuit. Generally, even frivolous complaints carry messages about a client's operational problems you can act on immediately.
Quality has a yen for resurrection. It endures and repeats. It lives forever. Quality has great legs.
Above: Caravaggio's "The Cardsharps", c. 1594. Oil on canvas, 37" x 52". Kimbell Art Museum, Fort Worth, TX.
July 13, 2015
From the window of your rented limousine,
I saw your pretty blue eyes.
One day soon you're gonna reach sixteen,
Painted lady in the city of lies.
Lips like cherries and the brow of a queen,
Come on, flash it in my eyes.
You said you dug me since you were thirteen,
Then you giggle as you heave and sigh.
--R. Plant, J. Patrick, Albion Inc.
Through the circus of the Buenos Aires queens.
July 12, 2015
You'd act weird too if you hadn't had a beer in over 25 years.
On July 12, 1986, around 1:30 AM EST, on F Street N.W., I had my last drink. Probably a beer--likely a Heineken. But no one really knows. I still miss beer. Like right now.
By "last drink" I mean my last beer, Heineken, Bass Ale, Guinness, Jameson, Scotch, Bourbon, vodka, Bombay gin, red wine, hooch, intoxicant or inebriant of any kind. (Now I don't even like alcohol to be in food, even great food, and "cooked off", as the waiters keep saying.) Where this happened was a wonderfully depraved Irish bar my friends--i.e. cocky litigators, journalists, Hill workers, network news people, and serious degenerates with serious jobs--and I really loved. It was midway between my house on Capitol Hill and my job on Eye Street.
Like all Washington, D.C. bars, it had straight-up trial lawyers, deal lawyers, politicians, writers, students, professors, diplomats, and a novelist or two. But this was no "fern bar". It was whispered that the IRA raised money and ran guns through the place. It was common to see people in suits asleep on the floor. The waiters and waitresses had brogues from places like Tralee and Cork. The day bartenders were belligerent--and often drunk by noon.
My kind of saloon. Perfect venue for the last drink: an amazingly grace-less bar. As a goof, we'd often tell tourists we met on Saturdays that it was a "family" restaurant, and that everyone sang wholesome songs at the place on Saturday nights starting around midnight, when the place became a real problem for even the people who worked there.
Not fights--just odd scenes: like word-slurring diplomats dressed in bathrobes and cowboy hats, and reckless pols with Irish surnames openly fondling au pair girls named Brigit or Maeve. Or an editor for a D.C. newspaper furiously charging in from the summer humidity to "claim" his notoriously independent wife, and seeming to grip a small firearm. No one notices him or it right away; the crowd is well over-served, and hours ago the help had arrived at that special campground beyond the sun.
Last days of Bombay. So the venue I had chosen was "perfect". Despite my mission early that morning, the place was still somehow exciting in its dark, edgy, and irreverent fun. But there is nothing remarkable about why I quit. No huge losses yet (sure, I could see them coming). I had a great job, and was headed toward a partnership. My childhood had been lucky--and fun. I could not have asked for more loving parents, siblings and friends. Nothing to drink about. I just liked it way too much.
Born different, I guess. It isolated me, even with people around. That isolation, and knowing that drinking had somehow separated me from the rest of the Universe, was enough. It's a lucky, and unusual, break to have that suddenly hit you. Sure, it's hard to quit doing something you love, and nine out of ten times you're pretty good at--even if it's killing you. You may experience for the first time "exclusion", albeit a somewhat self-imposed one. You're still a boring white collar WASP--but finally in a real minority. You never thought that would happen. You feel left out. But you learn a few things, too. I
I still miss beer, almost every day. Yet lots of people, including adventuresome trial lawyers or reporters with one dash of the wrong DNA, do finally give up booze, drugs or whatever else controls their life, so they can tap into and use the gifts they have--and grow. I was lucky. Not to just wake up--but to have the problem in the first place. If you hit it head on, you grow in ways you would never grow if you did not have "it". That is what people can never get. And they shouldn't. So I don't try to explain.
Born different, maybe. Born lucky, too.
Thanks Larry, Fritz, Ev Rose, Valerie, Helen--and Jeremiah Bresnahan.
July 11, 2015
Singers of songs and dreamers of plays
Build a house no wind blows over.
The CPAs—tell me why a hearse horse snickers
hauling a CPA's bones.
--Carl Sandburg (mainly) from The Lawyers Know Too Much, ABA Journal, Vol. VII, No. 1 (Jan. 1921), p. 23 (see jump below)
We usually represent corporations unfairly accused in federal courts of something bad (contract, patent, trademark or copyright issue), sloppy (spilt fossil fuel/CERCLA/drive-by littering/RCRA) or plain low-down (fraud/insider trading felony murder) by either another corporation by a government. It's defense side work and pans out best when the company has at least one sophisticated in-house lawyer who knows the difference between Rules 34 and 45. That client will be paying for two lawyers to nip the dispute in the bud and 3 or 4 lawyers to work on their case if it escalates.
But when we don't do the above, we represent plaintiff corporations. The best causes of action? Cases against CPAs or stockbrokers, hands down. There are almost as many sleazed-out mail-it-in accountants and brokers as there are lawyers of the same ilk, Jack. And suing them? Suing them is the second most fun you can have.
And this case we have both a CPA firm and stockbroker as defendants. Personally, I am licensed in California, DC, Maryland and Pennsylvania (three of which are real states or districts)--but not Texas, where I have appeared pro hac vice five times in 20 years but not in last two years.
So we need local counsel. We have a case against an accountancy and a stockbroker on behalf of a young (10 years) aggressive Texas DFW-area construction company that sounds in tort and contract. Needed quickly is a local civil litigator with great federal court chops who also knows two county courts: Parker and Tarrant. Add solid, reliable, responsive and trustworthy. Aggressive.
Respond in the comments. Thanks.
Me in 2009 with Texas CPA and Texas stockbroker. This is what Texas pros often look like. Neither here is a defendant in above case.
July 10, 2015
You hosin' us, Mr. Hull?
Rule 27 of the U.S. Federal Rules of Civil Procedure is "Depositions to Perpetuate Testimony". It's not invoked that often. Subdivision (a) covers "Before an Action Is Filed":
(1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:
(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;
(B) the subject matter of the expected action and the petitioner's interest;
(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;
(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and
(E) the name, address, and expected substance of the testimony of each deponent.
(2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies.
(3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.
(4) Using the Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.
And subdivision (c), equally as vague in some respects (but see the Committee Notes), states:
(c) Perpetuation by an Action. This rule does not limit a court's power to entertain an action to perpetuate testimony.
Again, Rule 27--and its many state counterparts--is not used that much. In non-federal cases, most states have some versions of Rule 27, with different case law on how you can take discovery before an action has been commenced. Valid reasons might be to preserve testimony which might "get away", e.g., a dying or homeless witness or a witness about to skip town with the money. Or (less commonly) to do a limited pre-suit evaluation of the merits. The state versions are worded very similarly to the federal rule; however, the case law on what you can actually do with the state counterparts of the rule vary widely from state to state. It's a bit vague, but good lawyers can use that to their advantage for clients when they see it in statutes, regulations and procedural rules.
One common concern with the rule: It will be used to harass and intimidate (read: "mess with people") rather than to perpetuate or preserve. Unfortunately, it is used that way. And some judges just don't at first like what they don't see that much. In 2010, one very good if elected North Carolina state judge in beautiful Durham, N.C., initially was increasingly aggravated that some godless bow-tied out-of-state city lawyer with movie star looks who tried to pick up his sultry 27-year-old law clerk named Zoey right in front of him was introducing him for the first time to the state's Rule 27. Judge Quaalude didn't know shit about it. But no one seems to. So you teach and sell His Honor or Her Honor. You're an officer of the court, right?
But go easy, check the cases on it--for obvious reasons, there are not many--and think it through. Local lawyers may not be much help; understandably, they often have rote, unthinking habits about their own procedural rules. Hey, we all do that--and we are missing a lot. (See Rule 56(d) for example.) Rule 27, done right, saves time and money. Downside: you might have to sell it to, or be creative with, the local state or federal judiciary. Or refresh the collective memory. Boomers do forget stuff.
(Image: D.E.K. Enterprises/Henry Gibson as Judge Brown, Boston Legal.)
July 09, 2015
Catherine Deneuve, 52, in 1995.
Editor's Note: The following is a verbatim reproduction of an article appearing in The Chronicle, Duke University's student daily on October 23, 1974. Page Auditorium is on Duke's West campus.
Thompson, Audience Clash in Page Chaos
By Dan Hull
"Is there any coherence in this thing? I feel like I'm in a fucking slaughterhouse in Chicago early in the morning."
DURHAM, N.C.--In a pathetic attempt to slide something coherent through his staccato mumble, Gonzo journalist Dr. Hunter S. Thompson was met last night at Page Auditorium with a bevy of jeers, curses, and a request by the Duke University Union to leave the stage.
According to Union spokespersons, it was expected that the slightly inebriated Thompson would drive away the audience if his talk turned out particularly monotonous.
Frustrated by the dialogue between the disjointed speaker and the belligerent audience, some did leave while others, many of whom were as well-oiled as Thompson, remained until the journalist was escorted off the stage.
Beer cans and joints
Beer cans and an occasional joint passed among the rows of the auditorium as Thompson, forty minutes late and looking more like a lanky tourist than a radical journalist, poked across the stage to the podium.
Slouching there, Thompson began: "I have no speech, nothing to say. I feel like a piece of meat," referring to his marketing by his lecture agency.
Having tossed aside the index cards on which were written questions from the audience, Thompson received few serious oral questions from the audience.
"What I'd really like to be in is an argument" he said.
When a baby cried Thompson mumbled, "That's the most coherent fucking thing I've heard all night."
In most cases, serious questions, and Thompson's responses to them were inaudible or incoherent.
Visibly put off by the belligerent Duke audience whom he repeatedly referred to as "beer hippies."
Thompson was most relaxed and clear when talking about Richard Nixon.
"Nobody's beaten him as bad as he deserves," Thompson emphasized.
"And nobody really comprehends how evil he is. The real horror of it all is that he reflects the rot in all of us."
"Hell, we elected him. The bastard won by the greatest majority since George Washington."
Thompson then suddenly urged the audience to "go out and vote."
Maintaining that the 1968 Democratic Convention in Chicago "kicked off an era," Thompson recalled somewhat disjointedly that before going there he took along his motorcycle helmet left over from his Hell's Angels days. (In the sixties he rode with the Angels in order to research a book on the group).
"After I got there, I found out why I had brought it with me," he said.
During the forty minute encounter (he was asked to leave at about 9:30), Thompson commented briefly on other subjects.
The 1976 Democratic Presidential candidate: "Mondale."
Terry Sanford's [former North Carolina governor and then Duke president] possibly candidacy: "I hope not."
Gary Hart, the Democratic candidate for Senate in Colorado: "He'll win, but he's a sell-out."
England: "A coal mine in the Atlantic. Next to a potato farm."
When asked a serious but largely inaudible question concerning the rise of consumer politics, Thompson yanked the shotgun-style microphone off the podium attempting to focus it in the direction of the questioner, a good 25 yards away.
"Violence is always sort of a self-satisfying thing," he added.
It was at this point, reportedly, that the Union people began to seriously considered pulling Thompson from the stage.
Asked by someone whether the Rockefeller family was encouraging "cannibalism in South America," an incredulous Thompson tossed up the remainder of his Wild Turkey onto the velvet curtain behind him, and scattered the rest of his unused index cards.
Amidst jeering and confusion, Union program advisor Linda Simmons escorted Thompson off stage.
Afterwards Thompson talked for an hour with about 100 students in the garden behind Page Auditorium.
Post mortems on Thompson's abbreviated Duke debut varied. One rather inebriated disciple was overheard saying, "I thought it was great, anyway. Just great."
"But another student remarked, "I'm totally embarrassed -- for everyone."
A third student commented, "This was fantastic — guerrilla theater, theater of the absurd — - all in one night. Good times at Duke."
Photos: The Chronicle.
Welsh Druids were always feisty. They chanted. They were naked. They did not fear death. And they cast spells just before battle.
Pay no mind to all those New Age yahoos and beer hippies from all over the UK and Europe at Stonehenge and Glastonbury this general time of year.
The Welsh are really it. The real thing. We Yanks might say badass.
The Welsh are the most authentic and toughest of British Druids--and always have been. Tacitus wrote of how Romans soldiers were frightened by, and reluctant to attack, the natives of northwest Wales 2000 years ago. Welsh Druids were not just warriors. They were way-wild, crazy and mystical. They chanted. They were naked. They did not fear death. And they were said to cast spells just before battle. Their priests, especially, were stone nuts, and had "old" knowledge they could and often did use.
No conquering Roman grunt wanted to wake up in camp one morning with his mates on the way back to Rome--for a triumph, strong wine and the missed company of sultry sporting women--to learn that he had been turned into a Tawny owl, sand lizard or crested newt at some point during the night. Everyone continued to be amazed with the powerful combination of Welsh grit and Druid magic.
We understand that, in the last several centuries, southern England's aristocracy has been giving the modern Welsh, still living large over on the western side of the big island, a run for their money, and making a stab of reclaiming and getting its pagan on, too. We came upon this older, strange unsourced news item. Winston Churchill as a druid priest? Well, why not?
Druid HQ: Island of Anglesey
July 08, 2015
Without invention nothing is well spaced,
unless the mind change, unless
the stars are new measured, according
to their relative positions, the
line will not change, the necessity
will not matriculate: unless there is
a new mind there cannot be a new
line, the old will go on
repeating itself with recurring
William Carlos Williams in Paterson, Book 2 ("Sunday in the Park")
July 07, 2015
Ode On A Grecian Urn
Thou still unravish'd bride of quietness,
Thou foster-child of Silence and slow Time,
Sylvan historian, who canst thus express
A flowery tale more sweetly than our rhyme:
What leaf-fringed legend haunts about thy shape
Of deities or mortals, or of both,
In Tempe or the dales of Arcady?
What men or gods are these? What maidens loth?
What mad pursuit? What struggle to escape?
What pipes and timbrels? What wild ecstasy?
Heard melodies are sweet, but those unheard
Are sweeter; therefore, ye soft pipes, play on;
Not to the sensual ear, but, more endear'd,
Pipe to the spirit ditties of no tone:
Fair youth, beneath the trees, thou canst not leave
Thy song, nor ever can those trees be bare;
Bold Lover, never, never canst thou kiss,
Though winning near the goal—yet, do not grieve;
She cannot fade, though thou hast not thy bliss,
For ever wilt thou love, and she be fair!
Ah, happy, happy boughs! that cannot shed
Your leaves, nor ever bid the Spring adieu;
And, happy melodist, unwearièd,
For ever piping songs for ever new;
More happy love! more happy, happy love!
For ever warm and still to be enjoy'd,
For ever panting, and for ever young;
All breathing human passion far above,
That leaves a heart high-sorrowful and cloy'd,
A burning forehead, and a parching tongue.
Who are these coming to the sacrifice?
To what green altar, O mysterious priest,
Lead'st thou that heifer lowing at the skies,
And all her silken flanks with garlands drest?
What little town by river or sea-shore,
Or mountain-built with peaceful citadel,
Is emptied of its folk, this pious morn?
And, little town, thy streets for evermore
Will silent be; and not a soul, to tell
Why thou art desolate, can e'er return.
O Attic shape! fair attitude! with brede
Of marble men and maidens overwrought,
With forest branches and the trodden weed;
Thou, silent form! dost tease us out of thought
As doth eternity: Cold Pastoral!
When old age shall this generation waste,
Thou shalt remain, in midst of other woe
Than ours, a friend to man, to whom thou say'st,
'Beauty is truth, truth beauty,—that is all
Ye know on earth, and all ye need to know.'
July 06, 2015
Good morning, Buckeyes. Well, to be fair, The Pretenders' classic "My City Was Gone" (better known by its snarky, ironic refrain "Hey Ho/Way to go/Ohio") in the live recent performance below is about the Akron-Cleveland megapolis in northeastern Ohio where the band's leader, Chrissie Hynde, grew up the 1960s and 1970s. In the 1982 song, Hynde complains about the environmental and other damage that industrialization eventually did over the decades to the region and her "pretty countryside".
Things got better, though, by the end of the 1980s. As in the similar case of steel-making Pittsburgh, Ohio's northeast reinvented itself as a center of business services, banking, smaller busineses, health care, sports and even the arts. And Cleveland, of course, is the Rock 'n Roll Capital of the World. But the rust belt still starts here, and anyone can see the scars on the land: a reminder of the area's historical importance in as a blue collar stronghold in shipping, refining, processing, and automobile parts manufacturing, and the social price paid for it.
"My City was Gone" is not about or directed at Cincinnati, which was the last of several hometowns I had growing up in the Midwest. Cincy is more white collar--it has always been primarily a town of professionals and business people. It is also smaller, more conservative, and less industrial than Akron-Cleveland. It's civilized and pretty, if nothing else. Also, it actually sits on the Mason-Dixon line. The Queen City, with its rolling topography, forested hills and bluffs overlooking the Ohio River, is on the northern edge of the American South, tucked away in the extreme southwest corner of Ohio. It's more relaxed than other Northern cities. Cincinnati people speak with a faint southern drawl.
In their own ways, of course, Cleveland and Cincinnati are unique, vibrant and great American towns. But we do think that in a fight between these two cities--you know, like a fist fight in the street as in days gone by--that gritty and blustery Cleveland would beat up smart, respectful Cincinnati. (Yeah, we think about these things, including who could beat up who in the office.) Chrissie Hynde? She lives mainly in London these days. Finally, "Vas you ever in Zinzinnati?" is a book by Dick Perry, a great Cincinnatian. Now that we have all that straight, many thanks to one-time Buckeye Ray Ward for his fine ear and generosity.
Akron's Chrissie Hynde laments the loss of her past Ohio in a powerful rock anthem she's performed for thirty years and only she can make work.
Cincinnati's famous Over-the-Rhine district, an architectural and multicultural wonder of nearly 900 older buildings in one 'hood.
"O Rare Ben Jonson"
--Words on the gravesite slab of English dramatist and poet Ben Jonson (1572-1637) in Westminster Abbey. Jonson was buried upright, i.e., standing up.
Twenty-five years ago, before The Great Neutering, before attorney gene pools started to dilute, when service professionals were well-rounded, if not classically-educated Renaissance people, when it meant a great deal to be a lawyer, and indeed to be a man, we had practitioners like Partner Emeritus. That is the nom de plume of a retired Brahmin New York City lawyer with an impressive following on the internet and who many culturally illiterate people--i.e., most lawyers these days (sorry, but that is the perfect truth)--apparently simply do not get. He's intimidating and spine-tinglingly scary to the maggotry, a comedic genius and WASP Yoda to the urbane.
Whoever he is--I sense pretty much everything about the way he portrays himself is authentic save his real name--PE has been there and done that (his legal breadth intrigues me) in upper-tier corporate law. And, perhaps, in life. Like me, he is an accomplished and unapologetic philanderer, and occasional cad. Color him, too, a bit picaresque. He is well-read and well-traveled. Two bonus CV points. He acquired and trained two Afghan show hounds. He even played polo, for fuck's sake. Like me, he does love the law, and this profession, which he worries about. At this stage, Partner Emeritus is also an accomplished satirist. A Lenny Bruce for those with Mayflower DNA. Governor-for-Life of Upper Caucasia. A Dean Swift for modern Manhattan.
PE entertains in two distinct, interchanging, modes. You commend his taste, and judgment, when he shifts gears from Satirist to Learned Critic. (You don't know when that is? That shifting? Your problem. Start getting a real education by attending the theatre, visiting art museums and reading Tom Jones, Candide, Huckleberry Finn. Devour Miller, Kubrick, Pope, Orwell. Behold Nabokov, Heller, Huxley, Mencken. View Pieter Bruegel. Listen to Gilbert & Sullivan. Will take years--but it's worth it.) Ninety-five percent of the time--no, I do not agree with his every assessment--he's right on the money about people, places and things. His writing is art. Class art. Informed art. Funny art. He disturbs, and brilliantly.
PE's best gift? It is his instinct for detecting hypocrisy. Along with spotlighting obvious mediocrity everywhere, and exposing the growing cadre of bad actors--i.e., twinkies, teacups, imposters, plagiarists, thieves--who regularly shill on ATL's eclectic pages, Partner Emeritus has an instinct for the jugular that is dead-on, lightning fast and funny. If you think--and not merely react--you will learn something. You will certainly learn something about yourself. Try not to blow a tube laughing.
You can read him and howl along with me most weekdays to his comments to certain articles at Above the Law. For many people, PE is the best thing about David Lat's celebrated and storied website. Excerpts from one wistful ATL comment last week:
Prior to owning a 1981 DeLorean DMC 12, I owned a gorgeous 1979 BMW M1. One Saturday, while my wife was with her family at Martha's Vineyard, I took my car into the city and decided to visit the old Copacabana. There, I met a woman named "Sophia." We drank Dom Perignon and danced Salsa and some disco (I was a maven on the dance floor and could have given John Travolta a run for his money during his "Saturday Night Fever" phase). During that evening, Sophia slipped a drug into my drink. The next thing I know, I woke up with a throbbing headache and my lower body was in pain. Apparently, I had crashed my vehicle into a divider on the Long Island Expressway and Sophia was unconscious next to me. A police cruiser drove by and stopped. I explained to the officer that I had been drugged by the latina woman next to me and that she had robbed me (I made sure to place my wallet in her purse before she regained consciousness).
Each mid-June through July you are greatly missed.
July 05, 2015
Lion No. 4, looking north up Connecticut Avenue.