February 26, 2015

Did the House Appropriations Committee just go hippie on us?

The congressional staff of a respected seven-term Ohio Republican routinely filed all office documents relating to "Indians" under "Environmental Matters", the staffers apparently having decided that Native Americans were primarily part of the nation's natural resources and outdoor life.

Note that on its agenda--it is copied in part below right after the picture of the late Mr. Rogers--that yesterday morning at 9:30 the newly GOP-run House Appropriations Committee heard budget testimony in the Rayburn House Office Building on "Quality of Life in the Military". A good thing? A Birkenstock creepy thing?

Did the Republican takeover of the U.S. House of Representatives last month for the first time in almost a decade somehow create a magnanimous, kinder, gentler and more caring-sharing GOP-controlled House we can all enjoy? Or did a rogue very young sweet, male Gen-Y committee staffer or intern totally lose it a couple of weeks ago in styling hearings of the House Appropriations Committee--and no one has noticed yet?

And can we get a transcript?

We're not sure what happened here. We do know that, not that long ago, the congressional staff of a respected seven-term member (R-Ohio) routinely filed all office documents relating to "Indians" under "Environmental Matters", the staff having decided that Native Americans were primarily part of the nation's natural resources and outdoor life. So a hearing entitled "Quality of Life in the Military"? Get the net.

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From the website of the House Appropriations Committee yesterday:

Budget Hearing - Quality of Life in the Military
Wednesday, February 25, 2015 9:30 AM in 2362-B Rayburn
Military Construction, Veterans Affairs and Related Agencies

Witnesses
Command Sergeant Major Daniel A. Dailey
United States Army

Master Chief Petty Officer Michael D. Stevens
United States Navy

Sergeant Major Ronald Green
United States Marine Corps

Chief Master Sergeant James A. Cody
United States Air Force

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February 22, 2015

"50 Shades of Grey" is an overwhelmingly limp cinematic experience bordering on fraud. Do not see it.

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In case you're Bevis or Butthead and might actually like this movie I won't spoil it for you by backing up this post with any concrete examples--but I made the mistake of seeing "50 of Shades Grey" on Friday night late with a D.C. yuppie 30-and 40-something audience that found it just as empty as I did in every respect. After the first 45 minutes, viewers laughed derisively, left early or talked with their friends in the hallways and restrooms. This movie has less sensuality and sexual tension than either Pee-wee Herman movie made 20 years ago. Not an exaggeration.

I knew nothing about "Shades" before buying my ticket except for what I could pick up from the outsized ad campaign. There was a huge build-up for this film, which apparently was based on a book which the movie is said is to fairly follow in substance and tone. The disappointment delivered from these towering expectations that the film--even if it failed at box office or with critics--would at least be on occasions "hot" or "unique" borders on outright fraud. It is not.

(Note to self: Fraud, misrepresentation and/or at least a detrimental reliance theory under the Restatement of Ks (2nd) comes to mind. Again, as with the Pee-wee Herman comment above, I am not kidding.)

"Shades" is not hot, cute, tense. edgy, erotic or sexy. "Neutered" is the word I'd use for the male lead, who comes off as a shallow twit masquerading as existential hero and lonely tortured artist. The female lead is sufficiently pathetic playing the role but convinced me she is as asexual in real life as she was in this movie. I half-jokingly mentioned to a friend that this entire BDSM farce must have been cooked up by either Brits and/or Gen-Y Americans who are taking a "guess" at what eroticism, spontaneity and sport-swiving might have been like when Baby Boomers were as sexually active as deranged rabbits between the early 60s and mid-80s until AIDS came along. Anyway, they guessed wrong. Boomers have special equipment, procedures and protocols for work and maybe fly-fishing--but not for sex. Sex, at least for happy people, is reinvented, over and over again.

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February 20, 2015

"No enemies" usually means he or she was never even in the game.

Here's the best advice on hiring, staffing and re-staffing I could ever give anyone. 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 Weenie to Ted Turner. But saying someone has "no enemies"? It means that he or she hasn't even been in the game. You're welcome.

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Got an Unpublished Manuscript?

If you do, visit Double Bridge Publishing. Double Bridge uses crowdsourcing to get unpublished books critiqued, edited, cover-designed, published, marketed and distributed.

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February 18, 2015

Congratulations to Washington, D.C. lawyer Eric O'Neill on 14th anniversary of capture and arrest of FBI double agent Robert Hanssen.

Congratulations to Renaissance man, Washington, D.C. super-lawyer, super-friend and American hero Eric O'Neill on the 14th anniversary of the February 18, 2001 arrest and capture of FBI agent-Soviet spy Robert Hanssen, in which Eric played the pivotal role. Eric is a former FBI counter-terrorism and investigative specialist with the Bureau's Special Surveillance Group (SSG). He played a major role in the arrest, conviction, and life imprisonment of double agent Hanssen for spying on behalf of the Soviet Union and the Russian Federation for over 25 years. Hanssen's capture occurred at a drop near the Soviet spy's Virginia home. Eric's extraordinary contribution is recounted in the 2007 Hollywood feature film Breach. These days Eric is a corporate lawyer who runs a DC-based global investigations company, a writer, a film producer and a sought-after speaker.

Eric was 27 years old at the time of Hanssen's capture.

Every American owes you a debt of gratitude, Eric.

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February 16, 2015

In praise of structure: For lawyers and other underachievers.

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Above: E practicing Structure. This 2006 post is from our famous Evergreen Collection. We haven't seen a need to revise it much.


Do we lawyers know how to get things done, done right and done on time? Do we even value that?

I wonder.

Is our standard for day-to-day working needlessly and embarrassingly low? Are we exporting that low standard whenever and wherever we can?

No, I am not talking here about the simple keeping face or survival requirements of meeting client deal or court deadlines, or even about the clichés of working hard, creative thinking, out of the box thinking, being persistent, or working smart.

I mean structure--a real standard for working--and "practicing structure" every day. It's the discipline of: (1) having a plan or strategy for any one project (client or non-client), (2) meeting internal project deadlines (not just jurisdictional ones) no matter what, and (3) insisting that everyone in your shop "buy into" the discipline of keeping to that overall plan or strategy and timetable.

"Structure" is not just the hard process of getting things done. It's a frame of mind and a value which must be sold to others in your shop--like the importance of making that 5 minute call to a client about a loose end at the end of the worst day you can remember, even while you could do it the next morning at 8:00. It's realizing that letting anything but emergency tasks "slide" makes you inefficient, unlikely to meet your real goals, and tired.

Do you go into work every day with a idea of what needs to be done on each project, and knowing the difference between "important" and "urgent"? Example: Monday is your deadline to have the final changes and notes to your web designer on your new firm website, an important but not urgent project you've talked about at internal meetings for months.

So far, for once, you have been on track. But on Monday a longstanding client calls with two new projects; the new projects are exciting but not THAT urgent in the sense they need to cut into internal deadlines and other goals for Monday. You need to take some first steps, though, to get on top of the new matters for your client. After all, these folks are the main event.

Key ongoing internal project v. new client project. Which gets the most attention that day? Which slides? Answer: they both get attention, and neither slides. The website (long-term important) and the new client project (short-term important) are both critical projects.

Years ago, the Stephen Coveys and Edwards Demings out there pointed out that business people burn themselves out by waiting around only for "the urgent" in a kind of manic crisis management that keeps other important things from ever getting done or ONLY getting them done when they morph into a crisis.

Continue reading...

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February 13, 2015

Happy Birthday, EJB

We met 11 years ago today.

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February 12, 2015

UPDATED: In federal trial court testimony, can you sneak your witness's religion into evidence? Do you want to?

My business litigation practice over the years has been chiefly in federal courts before one of our roughly 900 appointed federal judges. Trials get conducted under the straightforward federal procedural (FRCP) and evidence (FRE) rules. Only occasionally are my clients in state courts where in my experiences most jurists (1) are popularly elected, (2) openly provincial, (3) not overly-concerned with legal scholarship and (4) have their thumbs up their asses. Call me an elitist, a bomb-thrower or disrespectful but I'm fed up with judges who don't give a damn--and federal judges usually do give a damn.

Anyway, I've long thought that nearly all evidence/mention of person's religion or 'church life' has zero place in the courtroom. Interestingly, one longstanding general evidence rule in support of that idea is coming up a great deal more in the last 10 years or so. Rule 610 of the FRE is brief. "Religious Beliefs or Opinions: Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility."

It's a good rule. A witness while testifying should not mention his or her faith or religion ("I'm a Baptist" or "I attend the Church of the Final Thunder) or say things like "I was talking the other day with [Pastor Joe/my Bible Study Group]" as it tends to suggest that the witness is more worthy of belief or a "good" person as a result of the connection to a religion. For purposes other than supporting or attacking credibility, a witness's religion or indicia of that religion ("I was in church when my ex-wife was blown away") can come in as evidence and regularly does. Religion, church and church life are still a big part of the lives of many.

It's interesting to think about. I learned this witness rule (i.e., FRE Rule 610) 25 years ago in law school. But it has been only in the past 10 years or so witnesses, often aided by their attorneys, seem to be trying to score brownie points with a judge or jury by sneaking their religious life into the proceedings. Why? I have no idea--except to speculate that with some populations in America religion or faith is a kind of moral merit badge people think they need to be socially accepted. That may be true, for instance, in certain parts of the American south, Appalachia and the Midwest. And, sure enough, that's where you see it the most.

In Ann Arbor, Michigan, Madison, Wisconsin, the northwestern states, and several California counties, on the other hand, religion may be much less important--and even a bad thing to some jurors. There is a growing chorus of respectable people all over the world who think that every religion as embraced by some is unproductive if not a form of mental illness. America contains a few geographic areas where groups of these "progressive" anti-religion people seem to live, too.

The way to keep this information out as an indicia of character or credibility? That's easier. You will probably first hear this kind of testimony in depositions before trial. If it comes up, you can file a motion to exclude (or motion in limine) under Rule 610 before trial for an order that this kind of testimony will not come in as evidence. Failing that, you can object to the testimony as it comes in, move to strike, and ask the judge to tell the jury that they must disregard the testimony. You may want to think carefully about how you do it if you do it in front of a jury.*

*My thanks to two fine trial attorneys, Oregon's David Sugerman and New York City's Eric Turkewitz, for a few if not all of the better ideas in this post.

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And read this: Hunter Stockton Thompson opines on taking time off.

Excerpt from the famous November 1974 Playboy Magazine interview with writer and humorist Hunter S. Thompson conducted by Craig Vetter, a well-regarded writer and storyteller himself.

PLAYBOY: ....this morning you've had two bloody marys, three beers and about four spoons of some white substance and you've been up for only an hour. You don't deny that you're heavily into drugs, do you?

THOMPSON: No, why should I deny it? I like drugs. Somebody gave me this white powder last night. I suspect it's cocaine, but there's only one way to find out...

PLAYBOY: What do you like best?

THOMPSON: Probably mescaline and mushrooms: That's a genuine high. It's not just an up -- you know, like speed, which is really just a motor high. When you get into psychedelics like mescaline and mushrooms, it's a very clear kind of high, an interior high. But really, when you're dealing with psychedelics, there's only one king drug, when you get down to it, and that's acid. About twice a year you should blow your fucking tubes out with a tremendous hit of really good acid. Take 72 hours and just go completely amuck, break it all down.

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February 11, 2015

Stay here: Île Saint-Louis.

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Hotel du Jeu de Paume, 54 Rue Saint-Louis en l'Île, 75004 Paris

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Try this: The 12 Rules of Client Service.

It's simple. Sometimes all you need is what one favorite poet called a New Mind. Try our internationally famous and eternally annoying 12 Rules of Client Service:

1. Represent only clients you like.
2. The client is the main event.
3. Make sure everyone in your firm knows the client is the main event.
4. Deliver legal work that changes the way clients think about lawyers.
5. Over-communicate: bombard, copy and confirm.
6. When you work, you are marketing.
7. Know the client.
8. Think like the client--help control costs.
9. Be there for clients--24/7.
10. Be accurate, thorough and timely--but not perfect.
11. Treat each co-worker like he or she is your best client.
12. Have fun.


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February 10, 2015

The Teaching President: Obama got it right at the prayer breakfast. He was pitch perfect.

Last week when President Obama pointed out that "slavery and Jim Crow all too often was justified in the name of Christ”, lots of people blew tubes. To be fair, however, his observation is not only true, it's an understatement. If you are not convinced, for whatever reasons, do see Joshua Rothman's President Obama, the National Prayer Breakfast, and Slavery at We're History, an interesting and much-needed site which in large part focuses on history behind the news. Rothman, a professor of Southern History at the University of Alabama, obviously has the chops to write this article. Some Rothman excerpts:

It is hardly unusual for President Obama to elicit criticism, of course, but the criticisms in this instance are particularly odd because, as a matter of history, the contention he put forth at the National Prayer Breakfast is so obviously true. With regard to the defense of slavery especially, Christian justifications for the institution were so ubiquitous in the American South before the Civil War that the only real challenge is in listing their variations. Slavery’s defenders routinely turned to the Old Testament and observed that the Hebrew patriarchs were all slaveholders and that the laws of the ancient Israelites were rife with rules about slaveholding.

Looking to the New Testament, they pointed out that Christ himself never condemned slavery, took comfort from the Epistle to Philemon in which Paul urged the enslaved fugitive Onesimus to return to his master, and regularly cited verses commanding that slaves be obedient and submissive. Some defenders made a case for the notion that people of African descent were the lineage of Noah’s son Ham condemned by God to be eternal servants and thus a divinely sanctioned enslaved race, and others argued that slaveholding was part of white southerners’ religious duty to bring Christianity to African heathens.

So vital was Christianity to the southern defense of slavery that some historians have estimated that ministers penned roughly half of all proslavery literature in the decades after 1830, though it was hardly only ministers like Baptist leader Richard Furman who one might have heard state that “the right of holding slaves is clearly established in the Holy Scriptures.”

I'm not a rah-rah true believer Obama person--but I think he's one of the most interesting public figures in history. I voted for Obama only the second time around and even then reluctantly. (Part of it is when I look at Romney's eyes while he's talking I always get the strange feeling that someone or something else is driving...) But Obama's comments at the breakfast were historically accurate and pitch perfect, even if you view them as superfluous.

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February 09, 2015

Byron Galvez: Rosa

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"Rosa", 1989, Byron Galvez (1941-2009)

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February 04, 2015

A first century messiah with legs.

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 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 and competent piece of scholarship that every culturally literate person should critically read.

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February 03, 2015

Fight Corporate Wankspeak.

Let's nix corporate wankspeak and start speaking like human beings who value originality in language. Examples: empower, next level, unpack that and core competency. We are starting to sound like Anita Hill or Steve Covey on acid. We can do better.


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February 02, 2015

Pantheon: Ms. Gish.

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February 01, 2015

Storytelling for trial lawyers in 16 words.

Don't tell me the moon is shining; show me the glint of light on broken glass.

--Anton Chekhov (1860-1904)

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Chekhov with Maxim Gorky in Yalta, probably 1900

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January 29, 2015

Weenie-ness in white collar America: Is it getting worse?

I just talked on the phone to the Most Obsequious Senate Committee Staffer Ever (male, likely a young lawyer, but that's not the point) over at the Senate Judiciary Committee where they are doing Day 2 of the Attorney General nomination (Loretta Lynch) hearings. I'd like to write way more about this later. Short version is the staffer was overly-deferential (not just polite or formal) to me and in the way he spoke of other staffers and "the Chairman" (Chuck Grassley). I thought he was going to break into a chorus or two of "Camptown Races", maybe even dance a little. I am seeing this "peasant" behavior a lot. Has Weenie-ness--and I suppose by this I'm talking mainly about white males and a certain continuing emasculation--in White Collar America increased, or is it about the same as, say, 20 years ago? Are we going at breakneck speed from Polite to Pathetic? And why are people connected to the legal profession in particular so spectacularly and embarrassingly groveling?



Thursday is Get Off Your Knees Day.

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January 28, 2015

CPR's New Cross-Border Arbitration Rules

Bravo, once again. New York City-based CPR (International Institute for Conflict Prevention & Resolution), now in its fourth decade, has released its Rules for Administered Arbitration of International Disputes for use cross-border business disputes. They are effective December 1, 2014. I was first introduced to CPR ten years ago by Michael McIlwarth, a well-known in-house GE lawyer and author on cross-border resolution based in Florence, Italy. As an organization and resource, CPR is a general counsel's dream. It champions super-quick, efficient and sane resolution of business-to-business disputes internationally. It is in our view the best-kept secret in international business litigation. For all its talent, member resources and potential clout worldwide to make business arbitrations "faster, cheaper and better" as originally intended, however, you'd expect more companies working abroad to know about CPR--but they don't. Go figure. One of the few truly innovative and worthwhile legal organizations on the planet.

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