BeldarBlog

Electric heroes: a memoir

We haven't yet heard a definitive explanation for the power blackout that swept the Northeast and parts of the Upper Midwest this week.  Whenever someone pinpoints the immediate, precipitating cause, there will of course still be serious questions left to answer — along the lines of, "But how could we have permitted a situation where that glitch resulted in all this?"  Eager pundits are already pointing to deregulation — in particular, (a) the separation of ownership between generating facilities and transmission lines, and (b) general market uncertainty that has deterred long-term capital investments into the nation's power generating and transmission infrastructure — as the explanation for our vulnerability to the rippling, cascading effects of whatever the original glitch was.  Personally, I'm not in a position to offer educated guesses about those topics.

These blackouts have, however, reminded me of past personal experience, on the basis of which I can make a fairly confident guess about who was not to blame for this — a low-profile set of workers whom we take entirely for granted, despite the fact that they put their lives at risk for you and for me on a daily basis.  Indeed, they face hazards that can be every bit as deadly and unforgiving as those which our soldiers and police and firefighters confront.  And they get no recognition for it, no credit other than a blue-collar wage and an intense, very quiet shared pride.

****

I had the privilege and the honor in my first few years of law practice to work at a firm that regularly represented the local electric utility here in Houston, then known as Houston Lighting & Power Co. — "HL&P" we called it, or simply "the Light Company."  Law firms value such clients highly because they always have need of good lawyers; their representation entails not only a large volume of work, but a broad variety, much of it very challenging and interesting; and they pay their bills promptly. 

On my first day as a practicing lawyer in fact, I was lucky enough to get to be the "third-chair lawyer" in the team defending the Light Company on a serious injury case, metaphorically "carrying the briefcases" of two much more senior lawyers at the firm who were doing the heavy lifting and skill work.  We lost — we fought a good fight, but we got whipped, and in hindsight the jury did almost exactly the right thing with its verdict in that particular case — and yet I learned more about my profession from that single two-week trial than I'd learned in all my courses in my last two years of law school put together, I think.

As my skills and experience grew, so did the responsibility with which I was entrusted, so that I found myself a few years later acting as the first-chair lawyer — albeit still with discreet supervision and backup from the firm's partners — in preparing for trial another very serious case against HL&P.  The case was brought by the widow of one of the Light Company's own long-time employees, a journeyman lineman in the Transmission Department who'd died in a horrible on-the-job incident.

That's probably not an immediately meaningful job title to most of you, is it? "Lineman"?  Isn't that a football player?  Maybe a judge in a tennis match?

****

This man had been one of an elite class of highly skilled tradesmen whose jobs exist in an eerie intersection between electrical engineering and circus acrobatics.  "High linemen," they're sometimes called, for their job is to construct, maintain, and repair the incredibly tall steel towers that carry electric power from the distant power plants to the cities.  They put the towers up, they take them down.  They fasten the insulators to the tower arms that hold up the long, thick loops of naked steel cable — "conductors," they call them — which carry "the juice," the current, the electricity. 

When the tropical storms and hurricanes that regularly lash the Texas Gulf Coast knock down transmission towers or lines, these men put them back up — usually working around-the-clock.  Their skills are so unique and rare, in fact, that they're sometimes "loaned out" to other power companies around the country — sent to the coasts of Alabama or Florida to deal with the aftermaths of hurricanes there, for instance, when the whims of weather and fate have steered one of those beasts north or east instead of west through the Gulf.

I knew almost nothing about these men or their work when I was assigned this particular case, but for reasons that were very much in dispute, this particular lineman either fell — or under one interpretation of the evidence, perhaps intentionally jumped — some 120 feet to his death from the cross-arm of a transmission tower on which his crew was performing routine maintenance.  Inexplicably, he was not "safetied off" — attached by a line from his body harness to the tower structure — in clear violation of the cardinal rule that he'd not only lived by every day of his career, but that he also helped train to apprentice linemen in the Light Company's safety training program.  Regardless of whether he, the Light Company, or anyone else was at fault, his widow automatically qualified for, and was receiving, the comparatively meager death benefits provided by the statutory worker's compensation scheme.  But she had also sued the Light Company, claiming that its work rules and practices were grossly negligent — in effect, that her husband had been killed because HL&P (through its safety and training staffs and its crew foremen) didn't give a damn about the safety of its workers.

So to defend this case properly, I had to learn all about how these men — they were only men, for at the time of this accident there were no women among these crews — did their jobs every day.  I had to learn their safety rules, their procedures, their habits, their routines — sometimes their superstitions.  I had to learn what made them tick.  Over a two-year period during the pretrial "discovery" phase of the case, I spent many hours with these men — educating myself, gathering documents and other information, and eventually presenting crewmember after crewmember for hostile cross-examination by the widow's counsel in pretrial oral depositions.

It made for odd friendships, for on the surface I had almost nothing in common with these men.  I was fresh from a post-graduate education; they generally had high-school educations at the most.  I aspired to management (partnership someday); they were loyal union men to the core.  I wore wingtips and conservative wool business suits, white cotton shirts, and burgundy silk neckties to work; they wore steel-toed boots and denim and leather.  After driving over paved streets to work, I parked in an underground garage; after driving over mud and brush to work, they parked in clear-cut rights-of-way amidst tall pine forests.  My lunches among my coworkers were generally at downtown Houston restaurants with white linen tablecloths; they lunched among their coworkers while sitting on pickup tailgates, eating sandwiches out of steel lunchboxes and drinking ice-water from massive orange plastic jugs. 

I worked high, high above ground level, in a gleaming, air-conditioned office tower made of steel, marble, and glass.  I strode across upon floors that alternated between carpet and polished hardwood, and when I reached out, I touched walls paneled in exotic woods and adorned with tasteful modern art.  They also worked high, high above ground level, but on gleaming skeletal steel towers with neither glass nor marble.  They clambered up narrow steel ladders and then inched across four-inch-wide "angle-iron" girders made slippery with rain or morning dew, and when they reached out, they touched either the open sky or heavy steel cables whose purpose was to carry enough electricity to power the nation's fourth largest city.

Because they were so well trained, they were able to work safely, routinely, under conditions that would terrify you or me.  Although they were keenly aware at every moment that a casual mistake could cause a death by falling or a death by electrocution in less time than you can scroll down this page, they "worked smart" by methodically adhering to rules designed to minimize and control their risks.  Their employer didn't ask them to violate those rules in order to get your power turned back on a half hour sooner, and in fact forbade them from doing that; and their safety rules quite correctly put a higher premium on these workers' lives than on your or my convenience. 

But they knew — you saw in their eyes when you talked to them — they knew how much our world depends upon, and almost always takes wholly for granted, the magic show that their work keeps running with extremely rare interruptions, 24/7/365.  Collectively, they ached with every minute the power was off in your house or mine. 

They had a strong sense of duty, and they had a natural dignity that was boundless.  They were modest men, but they had quiet pride by the mile.  Amongst each other, they were very, very funny.  They cussed a lot, and after work they'd go out together for a beer, or to hunt or play poker or catch an Astros game.  And they stuck up for one another.  You'd think twice about crossing any one of them.

I took the case seriously from the beginning because I was ambitious and eager and energetic and ethical, and this was among my firm's biggest and most important clients.  They took the case seriously from the beginning because one of their own had died in their midst, for reasons they couldn't quite explain or grasp, and they were being accused of having caused his death by their indifference. 

What I never expected, however, was how much I would come to admire and, eventually, to identify with these men, and as a result just how personally I would come to take the charges being made against them.

****

By the time of the trial, I was a tiger on their behalf.  I was filled with a cold, polite fury that these men — who all loved one another as brothers, and who had loved their dead coworker just as much — were being accused of causing his death, and not by being just sloppy and careless, but reckless and indifferent.  Never have I been more highly motivated than I was in this case and in this jury trial. 

I wanted them to be vindicated!  I wanted the jurors to share the silent tears my clients had already shed for this man, but then I wanted them to shake my clients' hands after the trial was over, and maybe hug them and tell them, "We know it wasn't your fault.  We know you loved him too."  Because that was the truth; they did.

By the time we'd finished all the evidence and the closing arguments, the objectivity I had left about this case would probably have left ample room to spare if stuffed into a matchbox.

And it was almost certainly in anticipation of that likelihood — and, frankly, to guard against some possible catastrophe in a potentially multi-million dollar case for one of our best clients — that my firm had prudently sent along a young partner, a lawyer of about ten more years' experience than I had, to look over my shoulder and "second-chair" me.  My counterpart on the widow's legal team had an experienced partner from her own firm there as well; if anything, her objectivity by that point was even less than mine, because the trial had gone well from my point of view and she was very frustrated, but every bit as devoted to her client.  And while my senior second chair shared my optimism, hers doubtless saw a looming probability that they were about to be, as trial lawyers indelicately phrase it, "poured out like piss out of a boot" — to lose the case and to get nothing, not a dime, for their client (or themselves, since they had the case on a contingent fee).

So while the jury was deliberating, those two senior lawyers disappeared into the snack bar, then made some phone calls.  They came back in a few minutes, all smiles and handshakes, to announce that they'd reached an agreement to settle the case.  (The terms were, and are, confidential, but I can say that the number crunchers back in the financial and legal departments of the Light Company were extremely well pleased.) 

The judge called the jury back from the jury room, told them that the parties had reached an agreed settlement, thanked them for their service, and sent them confusedly home.  In the hallway outside, several of them confirmed to me that in working their way through the list of questions they were to answer for their verdict, they'd already reached agreement on preliminary answers that would have resulted in a victory for my side.

So for about two or three days, I was absolutely furious with my more senior colleague.  I felt that I had been robbed of a jury verdict, a courtroom triumph that I damn well deserved!  And I felt like my clients — note here my identification with the individual linemen and their crew foreman, not their huge corporate employer — had been deprived of the vindication I sought on their behalf.

But after letting me cool down, my colleague took me to lunch to debrief and talk about the lessons I could learn from the case.  "Bill," he said, "I know you're disappointed that I settled the case out from under you.  But I want you to stop a minute and think like a human being instead of like an advocate."  He paused to let this sink in. 

"In the greater scheme of life, are you really furious that Mrs. ___ is getting the fairly modest amount of money that will be left to her after her lawyers' fees and expenses are extracted?  She's not getting a huge windfall.  Our client can afford it.  It all goes into the rate-base, and ultimately it will be paid in tiny, tiny increments by all the families for whom Mr. ___ helped keep the lights on during his twelve years with the company.  Can you not see the justice in that result, even if it wasn't the harsh and total victory you were gunning for?"

I was ashamed.  He was right, of course.  After all the storm and fury that the adversary system postulates will result in justice had cleared, justice — something genuinely fair — had been accomplished.

When this had soaked in, I arranged to meet again, one last time, with the crew.  Some of them had been disappointed when they'd heard of the settlement.  They wanted to know if the Company thought they'd screwed up, or if the Company had sold them out.  I reassured them, and I gave them the same explanation my colleague had given to me.  It was actually probably easier for them to grasp than it had been for me — they felt more natural sympathy for the widow of their dead coworker (whom I had seen only through the distorted prism of the adversary system).

****

So when I hear about blackouts in Cleveland or New York, or on those blessedly rare occasions when they happen here, I think about that case, and that trial, and those men.  I think about how lucky I was to have had the chance to be their advocate, their lawyer.  I think about how much they taught me. 

And I think about how lucky we all are that our electric heroes are willing to climb into the sky every day, to build and maintain and fix the towers and the cables that tame the man-made lightning which makes our civilization work — to keep the magic turned on for you and for me.

© 2003 by William J. Dyer

Update (Tue Aug 19):  Lynne Kiesling's site, The Knowledge Problem, contains an impressive set of facts, opinions, and links about last week's blackout and the electrical energy situation in general, and she also has an interesting article that's just come out in Reason entitled "Rethink the Natural Monopoly Justification of Electricity Regulation." 

A corny Gipper story

Peter Robinson, blogging on The Corner, has been promoting his new book, "How Ronald Reagan Changed My Life."  He's been getting some very touching, spontaneous emails from others with their own stories, which prompted him to actively solicit more.  (He plans to print them and send them to the Reagan Library.)

For what it's worth, here's my own admittedly corny story that I emailed to him:

One fine clear and windy day in October 1980, I was a brand new lawyer who'd just started a clerkship for a federal judge in Houston.  Our chambers' windows on the eleventh floor in the federal courthouse looked down across Rusk Avenue at Tranquility Park, where a political rally for the Republican nominee in the upcoming presidential election was about to take place.  We all watched from our eagles' nest view, and the PA was loud enough that we could  follow what was going on.

A gleaming white stretch limousine pulled up — REALLY stretched, the biggest I'd ever seen in my life — and out of it, surrounded by his security detail, stepped the #1 hero of my childhood!  I thought he looked pretty good for his age.  He was a bit bowlegged, perhaps, and a bit stiff, but here in Texas we understand that when a man's spent a lot of time on horseback, that just happens.  Certainly I'd seen him whip enough badguys while on horseback, both on TV and in the movies, to understand. 

Another limousine pulled up — this one not nearly so impressive, just a plain black Lincoln Towncar, I think.  Its passenger exited and strode briskly across to join my hero in front of the microphones and the assembled press corps.  I didn't know nearly as much about this fellow, but — well, after all, he WAS Ronald Reagan, the Republican presidential nominee, and I was curious to hear what he'd have to say after my hero — Roy Rogers — introduced him.  (It struck me as perfectly natural at the time, though, that Roy had the bigger limo.)

Roy Rogers died in 1998 at the ripe old age of 86, having lived a full life as the King of the Cowboys.  But that day in 1980 was the first and last time I ever saw him in person, and while I always was and always will be a fan of his, I didn't fully appreciate that day that the man he was introducing would become one of the greatest heroes of my ADULT life.

I had the privilege of voting for Ronald Reagan twice, and I watched him rescue the United States in pretty much the same way Roy and Trigger always rescued Dale.  I watched President Reagan take on our villains, our demons — gas lines, striking air traffic controllers, high interest rates, high inflation, "stagflation," the nay-sayers who'd demoralized and downsized our military, the Evil Empire, and most important of all, a lack of national self-confidence and purpose — and whip 'em.  My gosh, how many bullets DID he have in that six-shooter?

When it comes to those two men I saw together at that 1980 rally, I'm not ashamed to say that I loved Roy Rogers, and I still love Ronald Reagan.  Roy Rogers' make-believe exploits thrilled me as a boy, but he also taught by example a code of honor that I and his other adolescent fans tried to live by.  Ronald Reagan thrilled me as a young man, and he taught me that the idealism I'd learned as a boy was justified, and that same code of honor will always be worth living by. 

Big home lots in California?

In a fascinating article about Ahh-nuld's wife Maria, Time begins with this factoid:

Five years ago, when she gave the commencement speech at the College of the Holy Cross in Worcester, Mass., Maria Shriver relied on the usual bromides. "Gotta have laughter." "Pinpoint your passion." "Be willing to fail." But then she turned to the subject of sex, and brought the Catholic graduates to their feet. "Forgive me, Mommy," she said, and went on to argue that womankind's great contribution to civilization is "awesome creative sex." She later wrote a book outlining her philosophy of life, in which she felt compelled to reveal, "There's no Viagra within a 50-mile radius of our house."

(Emphasis added, but probably not needed.)

Fifty-mile radius?  We all know from mail-box spam that this can't be a Viagra availability or supply problem for the neighbors, if any.  So either they built on a very large, very private lot, or there may be some kind of persistent downwind industrial-strength pheromones situation here — the latter of which, I guess, might be a campaign asset. 

I hope that, as reported, Maria's very involved in campaign strategy.  And if they have a lick of sense, they'll work hard to get her into every public appearance and every photo and TV op they possibly can over the next two months.  There's probably three percent of the California electorate who'd say to themselves come voting day, "Well, if the niece of JFK and RFK is this enthusiastic about him, maybe I'll trust him too!"  And that might be enough for a margin of victory in this crazy race.

Fifty miles.  Measured radially. Wow.  Awesome, dude and dudette!

"Sexed-up" evidence

I'm amused by the coverage of the "Blair vs. BBC" fight for public opinion that's going on in the UK now — in large part because of a difference it exposes between British English and American English.

The allegation being made against Tony Blair and his cabinet is that it "sexed up" the presentation of evidence about the justifications for war in Iraq.  I gather that "sexed up" isn't a new idiom in British English, but it pretty much is new to American ears.

Except maybe for that perverse sub-slice of Americans known as trial lawyers.

It's sort of odd, because I know that one of the longest-running plays on the West End in London (1971-1987) was something called, "No Sex, Please, We're British."

For as long as I can remember, in my conversations with other trial lawyers — shop talk — one of the conversational shortcuts we've used to characterize evidence is "sexy."  And as with the British usage, apparently, this is true even for cases that have nothing to do with real sex.

• Scenario No. 1:  MegaBlivit Corp. manufactures a blivit with a degree of metal brittleness that's twenty-five percent above the maximum limits set by the American National Standards Institute (ANSI), as a result of which one of its blivits shatters under stress on a cold day, causing the Wide Canyon Bridge to fall on top of Mr. Woebegone.

• Scenario No. 2:  Fred Fastguy, CEO of MegaBlivit Corp., is worried that his company is about to lose the big Wide Canyon Bridge contract, so he sneaks into the science lab after hours and steals a memo from the locked desk drawer of one of the junior scientists — a memo that was written to inform management that the degree of brittleness in the metal used by MegaBlivit is way too high.  Then Fred shreds the memo and transfers the junior scientist to MegaBlivit's branch office in Paraguay.  One of MegaBlivit's blivits shatters under stress on a cold day, causing the Wide Canyon Bridge to fall on top of Mr. Woebegone.

If I'm representing Mr. Woebegone's family, I can probably win my lawsuit for them with the evidence described in Scenario No. 1.  But it's not sexy evidence.  I'd have to worry about the jury nodding off as I'm qualifying my expert witness to give testimony on metallurgy.  I'd have to really work hard to make the jury understand how every responsible blivit manufacturer is really careful about their testing because so much can go wrong if they screw up.  And nobody will ever offer my clients $250k for the movie rights to the story, or me $100k to be a "technical consultant" on the film.

If I manage to extract the evidence in Scenario No. 2, though, then I've got evidence that any trial lawyer would immediately recognize — and describe in conversations with other trial lawyers — as sexy!  Now any mullet of a trial lawyer can grab the jury's attention, promise them a drama with a villain and a victim, and probably get them to answer "Yes!" to all the questions that will end up resulting in a big punitive damages award on top of the regular (a/k/a "actual") damages they award.  In fact, even the regular damages are likely to be pumped up — even though Mr. Woebegone is no more dead in Scenario No. 2 than in Scenario No. 1.

Now the specific usage of "sexed up" to describe something that's been exaggerated — I can't claim to have heard that, even in trial lawyer bull-sessions.

But I suspect every American trial lawyer got a special grin when we heard of the liberated Iraqi who celebrated by shouting, "Democracy!  Whiskey!  Sexy!" 

Free, fair, and balanced legal advice to Fox

I'm normally something of a fan of Fox News.  But as my revised masthead{note1} indicates, today BeldarBlog joins the growing number of blogs that seek to ... ummm, I guess the word I'm looking for is "ridicule" the lawsuit Fox News has chosen to file against Al Franken over his soon-to-be published book.

It's an uncommonly silly lawsuit.

(Bonus points for those who can cite the case and Supreme Court justice I just paraphrased.)

But we report, you decide:

I've always thought the "fair and balanced" slogan was a bit inapt anyway.  Maybe, instead, they should go with "Pleasantly slanted just enough to counter any one liberal network of your choice, you pick 'em."  After all, that's why I watch Fox from time to time in addition to CNN.  It's why I read the Wall Street Journal in addition to the Washington Post (among several others). 

If a newspaper or a TV network or a blog ever actually achieved the "fair and balanced" state of equilibrium, it'd be a statistical fluke with the half-life of one of those subatomic particles that only exists in a cyclotron.

We're each the product of our life experiences, and therefore bring biases to every new situation.  That can't be helped, although it can be acknowledged and, sometimes when need be, pointed out and moderated.  Heck, when I'm trying to pick a jury, I start off knowing that there's zero possibility of getting jurors who are actually unbiased — there's no such thing!  All I can hope for are some whose biases aren't so strong that they'll tune out everything they hear from me, the judge, and the witness stand.  And then I hope that they'll do their best, and mostly succeed, at making their decision based on that, rather than based on their biases.

In a serious post recently, I had occasion to blog about the twin and different duties that a trial lawyer owes his clients — as a public advocate in court, and as a private counselor behind closed doors.  Protecting that important second function is, for example, why there's such a thing as attorney-client privilege.

And in my not-so-humble, admittedly biased, and very amused opinion, someone at whatever outside law firm is representing Fox must have seriously dropped the ball as a counselor. 

This case is borderline litigation abuse.  And strategically, it's colossally stupid.  Whoever signed the complaint that initiated this lawsuit should have sat down first with the decision-makers at Fox and had what trial lawyers (even the Jewish ones I know) call "the come-to-Jesus meeting": 

"Look, guys, I love you, you're a great client, I'm with you 100 percent, but I've been a lawyer for 23 years, and you hired me not just to kick the holy snot out of your opponent, but to keep you from stepping on your genitals.  This lawsuit would be a mistake from a legal and a marketing perspective.  Don't do it, please.  I refuse to be a party to this nonsense.  I hope you'll change your mind, but regardless, I'm not going to sign this pleading."

That's what I'd have told 'em anyway.  And I'm actually not fair and balanced, I'm as mean and as rock-ribbed conservative-bordering-on-crackpot as they come.  But it's still good advice.  And it's free!

******

UPDATE (Aug 15, 2003):

The complaint was filed by Hogan & Hartson in the state-court system of New York.  (The trial-level courts in New York are confusingly named "Supreme Courts" — OMG, I've just been hit with an inspiration for a Lanham Act lawsuit, if only I can persuade Chief Justice Rehnquist to hire me!  And if Bob Crane were still alive, maybe I could ... naw, guess not.)

Hogan & Hartson describes itself as a "the oldest and the largest major law firm based in Washington, D.C.," with close to 1000 lawyers scattered about offices all over the world.  The complaint is signed by one "Dori Ann Hanswirth," a partner in the firm's intellectual property section with a cum laude degree from Cardozo Law School in 1986 and a federal district court judicial clerkship among her accomplishments.

These facts, IMHO, make it all the more reprehensible for Fox to have filed this lawsuit, because this caliber of lawyer and law firm should know better.

The key allegation is that Franken and his publisher "seek to exploit Fox News' ["Fair & Balanced"] Trademark, confuse the public as to the origin of the book, and accordingly boost sales of the book," thereby raising legal claims for trademark infringement and unfair competition under the Lanham Act and New York state common law. 

Among Fox's commercial interests listed as being threatened by Franken's book are the Fox News coffee mugs bearing the slogan:  "Balance is Important in News and Hot Coffee."  So too in the practice of law, Dori Ann!

The best I can say about the rest of the complaint is that it appears to have been well proof-read.  I did not spot any spelling errors.  It does, however, contain quite a few gratuitous insults to Franken — describing him, for instance, as "shrill and unstable," "'a C-level political commentator' who is 'increasingly unfunny,'" and — this one's simply a chin-scratcher — "neither a journalist nor a television news personality."  Last time I checked, the requirements for calling oneself either a journalist or a television news personality are rather less rigorous than the requirements for calling oneself, say, a lawyer.  It's hard for me to imagine that Fox News can prove that allegation. 

The complaint also contains a few  instances that appear to be instances of what boxing commentators and trial lawyers call, "Leading with your chin":  for example, were I representing Franken, I'd be fairly eager to find out through pretrial discovery the identity of the "commentator" who "has referred to Franken as a 'parasite' for attempting to trade off of Fox News' brand and [Bill] O'Reilly's fame in the Preliminary Cover of his Book."  If this turns out to be, say, Sean Hannity, Fox's lawyers will have succeeded in being quite a bit funnier than Franken usually is — but rather without intending to.

This lawsuit bodes ill for Fox in so many different ways, it's hard to list them all.  Were I licensed in New York and had I signed this complaint, I would be genuinely concerned that a wrathful court might sanction me — very likely by requiring me to pay Franken's legal fees out of my own pocket. 

But beyond that, Fox is very likely going to imbue Franken with a dignity that will sap its own and that he could never possibly achieve on his own.  The parallel would be if Ahh-nuld decided to concentrate his campaign rhetoric not on Gray Davis, but on Don Novello a/k/a "Father Guido Sarducci." 

Fox's lawyers are going to end up turning Franken into — dare I say it? — "Hogan's Hero"!  "Who told you Al Franken was a parasite?  Who?"  "I know nufff-ink!  I see nufff-ink!"

UPDATE (Fri Aug 22):  Fox lost round one in court.

--------------------

{note1} [I removed the "fair & balanced" phrase from my blog's subtitle in early September 2003, after the Fox lawsuit against Franken and his publishers was dismissed; the point of the parody had been made, and I don't in fact claim to be fair and balanced. — Beldar 9/9/03]

Which headline has more sizzle: "Supreme Court strips porno-comics of First Amendment Protection" or "Man convicted because his lawyer failed to object"?

I'm very close to being an absolutist in interpreting the First Amendment as applied to prosecutions for obscenity.  The US Supreme Court isn't, though, and its precedents on obscenity are all over the lot.  Suffice it for purposes of this post to say, the Supreme Court still permits those prosecutions, and lower-court judges are bound to follow the High Nine's interpretation of the First Amendment.

So I'll not blog here about whether that's a good or a bad thing, because that's not what's got my goat today.  What's got my goat is a piece in Franklin Harris' Pop Culture Online" entitled "High court shuns comic speech case," which came to my attention courtesy of a link from Andrew Stuttaford on The Corner.

Are you familiar with the acronym from the technical world, "RTFM"?  ("Read the frinkin' manual" would be the polite translation.)  Let's try on "RTFO" — "read the frickin' opinion!" — for stories about court opinions, shall we?

Here's Mr. Stuttaford's summary:

In September, 1999 Jesus Castillo sold a copy of an 'adults only' comic book to an undercover cop who clearly had nothing better to do with his time. The cop was an adult and the comic book was stocked in an adult section of the store. 'Demon Beast Invasion: The Fallen' may or may not have had its artistic or other merits (part of its plot included women having sex with, um, trees), but that apparently did not worry the prosecuting attorney. He "didn't care what kind of testimony [was] out there" because the store was across from an elementary school and "comic books, traditionally ... are for kids" and that, apparently, was that.

A dumb jury agreed and now, apparently, so has the Supreme Court.

Ridiculous.

(Ellipsis & bracketed portion by Mr. Stuttaford.) Mr. Harris' piece is consistent with Mr. Stuttaford's summary, but far more florid.  It's breathlessly previewed from his homepage with this teaser, sure to strike woe into the hearts of all comic-book pornographers everywhere:

As of now, comic books are the only medium of artistic expression without the presumption of First Amendment protection. Why? Because comic books "are for kids."

He describes the fate of Ms. Castillo as a "sentence of 180 days in jail, a year of probation and a $4,000 fine."

So how big a story is this, exactly?  Let's start with the breathless references to the US Supreme Court.  Has the US Supreme Court said anything in this case about comics and the First Amendment? 

Well, umm, no.  The entire involvement of the US Supreme Court was to issue a one-line order on March 24, 2003, saying that Mr. Castillo's request for the US Supreme Court to hear the case on its merits — his "petition for a writ of certiorari," in lawspeak — was denied.  Does that mean the US Supreme Court agrees with everything the lower courts did?  Does it mean the US Supreme Court thinks the lower courts at least got to the right result and the conviction was fair?  Is there some new legal precedent that's the law of the land?  Well, no, no, and no.  As a legal precedent, "cert. denied" means absolutely nothing more than that the US Supreme Court refused to make any ruling on the case except a refusal to hear it.  No precedent, no national impact.  The Supreme Court issues tens of thousands of these each year because it only chooses to hear a tiny fraction of the cases brought to it.

So is this at least a case about a state-wide precedent from the highest Texas court for criminal cases, the Texas Court of Criminal Appeals?  Well, no — not that either, as it turns out.  Just like the US Supreme Court, the Texas Court of Criminal Appeals agrees to hear only a small percentage of the many cases brought to it from Texas' fourteen different Courts of Appeals.  It turned this one down on October 23, 2002 — again with a procedural device that conveys zero precedential authority to affect future cases.

So what's involved here is an opinion setting precedent from — and binding in the future only upon — the Dallas Court of Appeals (the fifth of the fourteen by district number).  I can practically hear all you porno-comic readers here with me in Houston breathing a huge sigh of relief already.

Still, poor Mr.  Castillo!  That's pretty harsh, isn't it?  Six months in jail, plus a year of probation, plus a $4000 fine?

Well, again, no.  Mr. Castillo's actual sentence was 180 days plus the $4000 fine, but the judge showed leniency and instead of sending him to jail, gave him a year probation (that's what "180 days in jail, probated for twelve months," means; "probated for" doesn't mean "plus").  So:  Zero jail time, assuming he behaves for the next year; if he violates the probation, then and only then he goes to jail for 180 days.  Being on probation's not a picnic, but it beats wearing an orange jumpsuit for the next half-year and having a girlfriend named Bubba.

Fairly stiff fine, wasn't it, though?  And the appellate court refused to disturb it when Castillo asked it to, right?  Well yes — but not necessarily because the Court agreed with the fine.  You see, Mr. Castillo's lawyer didn't ask for a court reporter to make a record of the sentencing in the trial court.  That being the case, there's no way he could show the appellate court that an objection to the size of the fine had been made to the trial judge — and you have to show that you tried to fix stuff in the trial court before the appellate court will fix things for you on appeal. 

Still doesn't Mr. Castillo have a felony conviction that will haunt him forever?  Nope.  This was a misdemeanor charge.  One year in jail was the maximum punishment Mr. Castillo could have gotten — not two, as Mr. Harris reported.  (Most places, misdemeanors are defined as crimes punishable by a year in jail or less, plus a fine.)

Well, okay, there's still that incredible constitutional ruling that stripped away the protection of the First Amendment from all comic books because they're just for kids, eh?  Surely that's worth making a big deal about!

Except ... that's not at all what the Dallas Court of Appeals actually said.  Not even close.  Nowhere does the opinion suggest that any different standard applies for comic books, or DVDs, or paper napkins, than for any other publication.  It gave the porno-comic at issue the exact same examination it would give to a hard-cover book, friends and neighbors, in terms of the analysis as to whether it was material that is "constitutionally obscene" under the relevant US Supreme Court decision, Miller v. California.  Again, I'm not going to argue that Miller or any other of the general precedent on obscenity is well-reasoned or clear or fair.  But this porno-comic wasn't given any lesser protection by virtue of it being a comic.

So how did the issue of kids come up?

In his sixth point of error, [Castillo] complains that the trial court erred in admitting testimony about the proximity of an elementary school to the comic book store.  [Castillo's lawyer] filed a motion in limine [a pretrial motion] seeking to preclude the State from "making any reference or allusion to the fact that Keith's Comics ... is in close proximity to a school." In a pretrial hearing on the motion, the defense argued that such evidence was irrelevant and its probative value, if any, was outweighed by its prejudicial effect.  The trial court denied the motion in limine.  When the evidence was adduced at trial through Reynerson [the arresting detective], [Castillo's lawyer] did not object.  It is well-settled that the denial of a motion in limine is not sufficient to preserve error for review, but rather there must be a proper objection to the proffered evidence.  By failing to object when the evidence was offered at trial, [Castillo's lawyer] failed to preserve his claim for review.

(Ellipsis in original, italics added by BeldarBlog, case citations omitted.)  What's that all mean?

It means that before the trial, Castillo's lawyer displayed the minimum sense that God gives to all mules and most defense lawyers.  He had figured out that in an obscenity case where the store was near a school, where the store was filled with "'action fantasy' comic books like 'Superman' and 'Batman,' and 'action figure-type figurines'" — but in the very same room also sold explicit porno-comics of babes having hot sex with tree limbs, plus "sodomy, masturbation, excretory functions, sadism, and masochism" — the prosecutor might want the jury to wonder whether some kid is going to wander in and see this stuff.  Yes, absolutely, that would be irrelevant and prejudicial, just like he said in his pretrial motion. 

So didn't he lose on this issue when the judge denied his pretrial motion?

Well, again ... no.  When a judge denies a motion in limine before the trial, it's the same as saying, "Make an objection to bring this to my attention later, when I know what the case is all about, and depending on the evidence then I'll make a decision."  This happens all the time, every day, to every trial lawyer in every kind of case, civil and criminal.  Judges don't like to pre-commit on one piece of evidence before they've heard any evidence, for understandable reasons.  In fact, usually lawyers expect to lose pretrial motions like this, but they file them anyway because they want to bring the hot topics to the judge's attention before the trial, so he'll be listening closely and thinking about it, waiting for that timely objection during the actual testimony before the jury.

So the first time the prosecutor started inching into his "kids" routine, what did Castillo's lawyer do?  Did he leap to his feet and say, "Your Honor, may I approach the bench?!?" like they do every Sunday night on "The Practice"?

No, he kept his mouth shut and his butt in his chair, and he let it all come into evidence without objection.  That, friends and neighbors, is what's called "a waiver."

Well.  Duh.  Was he asleep?  Was it a tactical decision that he figured would backfire on the prosecutor?  (We've all seen that on "The Practice" too, ya know — defense lawyer pulls the chestnuts out of the fire with a great closing argument that turns the tables on the really prejudicial evidence by appealing to the jury's own sense of what's relevant and what's mere grandstanding.)  I dunno.  Neither did the Dallas Court of Appeals.  All they know, and all I know, is that for whatever reason, the prosecutor got away with more than he should have because the defense lawyer didn't object.  Stuff like that happens.  Dog bites man, whadya gonna do?

There was, by the way, a dissent from one of the three judges on the Dallas Court of Appeals panel.  He thought the prosecution failed to present enough proof that Castillo actually knew what was in the porno-comic.  The jury, and the trial judge, and the other two appellate judges thought otherwise.  Eh.  I dunno, I haven't read the transcript of the entire trial, of course, but the testimony discussed in the majority and dissenting opinions doesn't leave me particularly outraged — not enough to jump to the conclusion that the jurors, the trial judge, and the two appellate judges in the majority were clearly and unequivocally wrong.  Judges, especially appellate judges, generally cut juries a lot of slack on this sort of factual issue.

Was perfect justice done (assuming that perfect justice is even possible under the current state of Supreme Court obscenity precedent)?  Again, I dunno; maybe not.  But ya know, if I spend a lot of time worrying about every absolutely routine probated misdemeanor conviction up in Dallas where there's no new precedent set, it makes me lose sleep, which makes me grumpy, and then I growl, and people won't smile at me in the elevator, and I have a hard time keeping up with important stuff — like significant court opinions that do make new law. 

Unfortunately, exploding myths and distortions like this takes scads of prose — a good sizzling set of lies can be much briefer.  I certainly don't fault Mr. Stuttaford, who probably took on faith what looked to be a credible report from Mr. Harris, who in turn probably believed what some of the people involved in the case, or who have an axe to grind, told him about it.

But golly gosh Jeebus, is it too much to hope that before everyone's knickers get all twisted over the death of the First Amendment (as applied to porno-comics), someone in the loop should actually RTFO?

*******

The formal legal citation for this case is Castillo v. State, 79 S.W.3d 817 (Tex. App. — Dallas 2002, pet'n denied),  cert. denied, __ U.S. __, 123 S. Ct. 1593 (2003), if you'd rather fetch it up on Westlaw or Lexis or (gasp!) drag volume 79 of the Southwestern Reporter, 3d Series off your bedroom bookshelf.

*******

Update (Tues. Aug. 14):

Mr. Harris' blog, Franklin's Findings, has a post which accurately asserts, with links, that "[o]utrage over the Jesus Castillo case is spreading to blogs left, right and points between."  Unfortunately, IMHO the outrage is the product of a profound misunderstanding of the case, for the reasons I posted above last night.

Mr. Harris was kind enough, however, to add an update with a link to my post from last night:

UPDATE: Houston attorney William J. Dyer, however, begs to disagree. I think he greatly overstates his case. For example, he makes much of the fact that it is unremarkable for the U.S. Supreme Court to refuse to hear a case -- a point I myself note in the second paragraph of my column. Also, he focuses exclusively on issues raised at the appellate level, while I and other critics of the decision have focused solely on the arguments presented at the trial phase.

Mr. Harris did indeed note in his original piece in his "Pop Culture Online" blog that the US Supreme Court's decision not to hear the case "is unsurprising, given how few cases the court agrees to review," but he followed that by claiming that

... it leaves a dangerous precedent unchallenged.

As of now, comic books are the only medium of artistic expression without the presumption of First Amendment protection. Why? Because comic books "are for kids."

And that's what's so badly wrong about his original article, and why all the "outrage" is unjustified:  There's no such "precedent" from the Castillo case! 

Decisions of state trial courts in Texas and most other states have zero precedential value.  They are not binding on, nor usually even persuasive to, any other trial judge.  When trial judges want to know what "the law" is, they look exclusively to the reported written opinions of appellate courts, starting with the lowest-level appellate courts (like the Dallas Court of Appeals that wrote Mr. Castillo's opinion) and proceeding up the chain (in this case, through the Texas Court of Criminal Appeals and US Supreme Court, neither of which agreed to reconsider the merits of the Dallas Court of Appeals' decision).

No lawyer from either side of any future case is likely to be citing the Dallas Court of Appeals' opinion in Castillo v. State as precedent on anything, nor is any trial judge likely to look to it as precedent, because the various rulings contained in that opinion are all settled law that simply track older, higher authorities than the Dallas Court of Appeals.  And they're certainly not going to cite it as precedent to say "The First Amendment doesn't protect comic books" — because it doesn't say that!  In fact, if anything, it strongly implies exactly the opposite, because the Dallas Court of Appeals used the exact same analysis for this comic book that it would use for any adult hardback book. 

So the only possible interest the trial court's rulings and the jury's decision in this case have is if, as Jim Henley from Unqualified Offerings has suggested be done, you're trying to figure out how to do a better job defending cases like this, as a purely practical and tactical matter, in the future.  Again, I've not read the entire trial transcript, and I obviously wasn't there, and I don't know the lawyers on either side.  The Dallas Observer ran an article, linked from Mr. Harris' original piece, which had this to say about Mr. Castillo's trial counsel:

Shunatona says he was picked to defend Keith's because he shops there. He admits reading Frank Miller's Dark Knight series instead of studying for the Bar exam. "I've had my kids in there," he says of the store. Shunatona is a former prosecutor with one obscenity case in his background, the prosecution of a dildo's owner. The outcome? "Actually, it was a hung jury," he says. (It's impossible not to laugh at him when he says this.)

But I don't mean to dump on Mr. Shunatona or to suggest that he necessarily dropped the ball.  Sometimes good lawyers lose cases, that's life — dog bites man, no news there.  Subjective factors like witness credibility can make a huge difference.  The difference between "competent and persuasive" on the one hand, and "arrogant and offensive" on the other, is purely subjective — and while one could guess from the outcome in this case that the jury had the former assessment of the police detective and the latter assessment of the college professor "expert witnesses," that'd be nothing more than a guess.

Let me venture a really contrarian opinion:  This case should be encouraging to those who disapprove of obscenity prosecutions in general.  Why?  Because to get a conviction, the Dallas County DA apparently concluded that she needed more than just what was in the comic book.  Even in conservative Dallas, Texas, she figured that she needed to get the jury's thinking out of "private activities of consenting adults"-mode and into "my god, what if my kid sees this on the way home from school"-mode. 

Paradoxically, as it happened, the prosecutor was able to use the fact that this comic book was on an "adults-only" shelf (albeit not in a separately access-controlled area), and that it had a front-cover label with "Warning! Absolutely not for children!" as evidence that was indeed relevant and admissible because it tended to show that Mr. Castillo, the store clerk, had knowledge of the obscene contents.  (Amazon has an enlargeable thumbnail of the book cover, as per Mr. Harris' link.)  Those facts also tended to make the jury worry about exposure to kids — even though this was not a prosecution for corrupting the morals of children, and no showing was ever made that a child had purchased or had seen this material. 

The proximity of an elementary school, by contrast, had no such relevance, and was purely an attempt to play to the jury's prejudices, which is why Mr. Castillo's lawyer made that specific objection; however, apparently the prosecutor got away with that bit of mischief during the trial based on Mr. Castillo's lawyer's failure to renew his pretrial objection.  Once it's in evidence, it's more or less fair game for the prosecutor to conflate various issues in closing argument — hence the "we all know comics are for kids" argument.  (Mr. Stuttaford, by email back to me, points out his concern with this prosecutorial overreaching, which I share, but would categorize as mild in comparison to other stuff that goes on daily in the real world; keeping that stuff in reasonable check is why God made defense lawyers.) 

So to repeat, the good news for fans of the First Amendment here is this:  To win this case, the prosecutor had to cheat (or pretty close to it) by injecting the issue of the material's possible exposure to children.  It  probably is true that comic books are more often likely to be subject to that tactic than XXX videos and DVDs and magazines commonly sold or rented in access-controlled areas.  So what's the moral, boys and girls?  Put your porno-comics back in the separate room, behind the magneto-controlled remote-activated locked door, along with your porno movies and mags — not in a place where jurors are likely to imagine little Timmy and Jill wandering in after school. 

"Ampersand" of Alas a Blog, who had previously blogged an eloquent piece to point out that there's less here than meets the eye and no need to panic, was also kind enough to link to and reference my post, and offers some thoughtful observations that might relate to future such prosecutions.  He also suggests, and I tend to agree, that those trying to "help" from out of state may have done more to harm than to help on a practical basis.  A follow-up Dallas Observer article reports that Mr. Castillo's $60,000 (*cough*gulp*cough!) in legal fees were paid by the "Massachusetts-based Comic Book Legal Defense Fund," and that his fine was paid "using money donated by shop customers and other local supporters"; that's very nice, but I strongly suspect that the net effect of their participation was to guarantee that the Dallas County DA's office took this case rather more seriously than it would otherwise.

But I tend to bristle when "Tom Tomorrow" of This Modern World badly misstates what happened in this case, and then concludes with:

Apologies to the decent, thoughtful, intelligent people who live in the Lone Star state — a category which actually includes several friends of mine — but these Texas pigstickers are really starting to get on my nerves.

That, friends and neighbors, is uninformed regional bigotry, for which Mr. Tomorrow's apology — essentially "Some of my best friends (believe it or not!) actually live amongst those savages!" — isn't quite adequate.  And widespread propagation of blatant misreporting about the facts and law in this case leads to more such bigoted and ill-informed spite, the likes of which one finds in the comments to Atrios' equally misleading post on Eschaton.

That's what gets my goat, down here in pigsticker land.  All I can say again is, when it comes to blogging about legal events:  RTFO!

*******

UPDATE (Fri Aug 15):  Professor Eugene Volokh of The Volokh Conspiracy — one of my absolute favorites and a role-model — blogged about this case today.  To his great credit, he not only corrected a serious misstatement about the case within an hour of receiving emails about it from me and another reader, but did so in a conspicuous manner.  He was also kind enough to link this post as part of the correction, so: Hello Volokh Co-Conspirators!

Jim Henley's Unqualified Offerings has another lengthy and thoughtful update post about the case, with another shorter one that references some of my updates.  His approach is as a nonlawyer who's a defender of comics and a foe of obscenity laws, and notwithstanding the explanations and comments from lawyers like me, he's understandably left in a state of concern — albeit hopefully a lesser one than when he was under the misimpression that this case represents some powerful legal precedent that will affect other, future cases.  His lingering unease is justified, however — yes, this could happen again, in Texas or just about anywhere else, so long as Miller v. California is the law of the land.  But one could hardly have picked a less appealing candidate than this case as a vehicle to persuade the US Supreme Court to make new law — not because poor Mr. Castillo isn't sympathetic, but because there are so many other explanations for his conviction in addition to the fundamental flaws in Miller's scheme for regulating obscenity under the First Amendment. 

*******

UPDATE (Sat Aug 16):  As indicated in the Trackback below, Amp has many more links, lots of which appear to go to discussions that get into the broader questions about obscenity generally.  I enjoy reading civil discussion of these issues — the one on Journalista! The Comics Journal Weblog being a very fine example (and one that was nice enough to link this post and express agreement with my distaste for some of the bigotry in other discussions, thank you Dirk Deppey).  Julian Sanchez' arguments in Notes from the Lounge are also quite eloquent, although I disagree with his argument that comics are being especially picked on.  It's disappointing that so many other defenders of the First Amendment, though, can't express their thoughts without profanity or very personal attacks, which simply reduce their credibility.

UPDATE (Mon Aug 18):  I'm disappointed to see that another of my heroes, Walter Olson of Overlawyered, has picked up this story in its original, overblown version as published by Mr. Harris and Mr. Henley, both of whom have — to their credit — posted later corrections (already linked above) that Mr. Olson apparently missed.  Updated update:  I am reassured, but unsurprised (given my confidence in his scrupulous attention to facts):  Like Professor Volokh, Mr. Olson issued a very thoughtful correction within a couple of hours after being contacted.  Thank you, sir.

Meanwhile, from far less reputable sources, the hysterical (in both senses of that word) propagation of misinformation continues.  By far the least accurate report I've seen yet about this case is a piece by Frank Beaton, a "local freelance writer" whose article about this case appears in something called "Las Vegas Citylife."   Other than the statement that he is "but a lowly journalist and not versed in matters of law," he appears to have gotten just about all his other significant facts wrong, and he manages to incorporate vulgar and ill-informed regional bigotry into both the article's title and concluding paragraph.

I'm now, uh, crusty, not curmudgeonly

When I started this blog about a week ago, I subtitled it the "Online journal of a curmudgeonly trial lawyer and internet dilettante," and I privately congratulated myself on the choice of the word "curmudgeonly."  As I am myself in some ways, it is a bit of an anachronism.  It seemed to fit.

But I had a ghastly moment of realization tonight while browsing various websites. 

Some weeks ago I first learned of a blog that is being maintained anonymously by a young lawyer who's apparently clerking for an unspecified US District Judge here in Houston.  It's called "The Curmudgeonly Clerk," and its author is obviously very bright and energetic, a model blogger with a good legal mind.  I assume he or she is "young," because almost all clerks for federal judges are just out of law school, typically in their early to mid-20s.

When I clerked in that same building in a pre-PC era, the state of our technology was that we had two massive, brand-new "word-processors" — each about the size of a Volkswagen — on which the judge's and her three law clerks' written output was transcribed from longhand by two secretaries.  There was one dedicated Lexis/Nexis terminal in the building law library for the use of all the Houston-based district and circuit court judges and their clerks, but I was one of the very few who used it regularly.  We had telephones in chambers — but no fax machine.  I am reasonably sure that they'd run off all the carrier pigeons already.

So I suspect that, based on chronological age alone (independent of inclination and attitudes), I may be more accurate in describing myself as a "curmudgeon" than this judicial clerk.

Still, the name of his or her blog had slipped only my conscious mind.  Upon being reminded of it tonight, I immediately realized that I'd unintentionally semi-plagiarized it.

Since I practice in the federal courts here, presumably including before the same judge for whom "The Curmudgeonly Clerk" clerks, and since my blog is not anonymous, this isn't among the brighter things I've ever done.

Hence a new subtitle for BeldarBlog — and my apologies to the Curmudgeonly Clerk.

Hasta la vista for truant Texas Dems?

I've already blogged (complete with .wav files) with my impressions of Arnold Schwarzenegger's race to replace Gray Davis as Governor of California.  But Ahh-nuld's new gubernatorial campaign website (still very much under construction at the same URL as his prior website for Proposition 49 last year) has a spiffy big heading with a nice pithy quote under a snazzy picture of him and Maria:

There comes a point when we the people must demand more of our elected officials than just showing up!

It's probably not meant to be an ironic statement, but you'll have to forgive Texas Republicans if we collapse into a fit of giggles when we read it.  Here's why:

For the first half of my life, Texas, like the rest of the "old south" states, was a "yeller-dog Democrat" state.  ("Why, I'd sooner vote fer a damned yeller dog than some gat-damned Republican!").  The Democratic primary was the only election that counted because the Democratic Party's nominees generally ran unopposed or with only token opposition. 

The shoe is now on the other foot, however.  Republicans now dominate this state nearly as thoroughly as the Democrats once did:

• In the 2002 elections, Texas Democrats were unable to capture a single one of the twenty-nine state-wide offices. 

• Texas voters re-elected in his own right Gov. Rick Perry — who'd become governor in 2001 as the successor-by-resignation to our state's presidential "favorite son," Dubya (pun intended).

• Texas voters also took the lieutenant governorship — from which powerful office a minority party member could execute an extremely effective rear-guard stalemating action (if he so interpreted his mandate from the voters) — out of the hands of the Democrats. 

• And even more significantly, Texas voters in 2002 gave majority control of both houses of the Texas Legislature to Republicans for the first time since Reconstruction.

• A solid 56 percent of Texas voters chose the Republican candidate for the US House of Representatives in their respective districts in 2002.

• And if you had any other doubts about how the Lone Star State is trending, Texas voters elected Republican John Cornyn to replace retiring icon Phil Gramm in the US Senate.  Cornyn joined Texas' second senator, Kay Bailey Hutchison, also a Republican.

So there is no way in which Texas voters could have sent a clearer message that they trust their Republican state executives and the Republican majority in the Legislature to perform all their constitutional tasks — and very high on that list, of course, is the duty to establish US Congressional district boundaries.

Elected from districts established by unelected federal judges acting in 2001 under the Voting Rights Act, however, the current Texas delegation to the US House of Representatives comprises 17 Democrats and 15 Republicans.  That 17/15 Democratic Congressional majority does not remotely reflect the will of the voters of this State as of today! 

The 2001 map imposed by court order was drawn with minimal changes from a 1991 map that was based on 1990 census data.  But even that 1991 map wasn't a fair one.  Rather, it was created at a time when Texas Democrats were still clinging to small majorities in both legislative Houses as well as the lieutenant governorship, and they used that power to artificially manipulate district boundaries so as to pack more Republicans into fewer districts.  That in turn meant that there were more districts where Democrats could win because of the diluted Republican voting strength. 

Demographic changes since 1991 — as revealed by the 2000 census, which the US Constitution intended would be used by state legislatures to redraw fair congressional boundaries every ten years — have made the 1991 map even less fairly representative and more biased.  Thus, the current map is an obsolete and increasingly undemocratic vestige of cynical partisan gerrymandering — a remnant left from the glory-days of a party that a majority of the state's voters have thoroughly and repeatedly repudiated, an encrustation that smells worse and worse with each passing year.

But now, the attempts by Texas Republicans to do what they were elected to do — including to establish new and fair US Congressional boundaries — are being held hostage by a stomach-turning political stunt on the part of eleven anti-democratic Democratic state senators. 

Defying the second special session called by Gov. Perry to finish the task of redistricting, these eleven have fled to New Mexico for the admitted and sole purpose of thereby preventing a quorum in the Texas Senate — and thereby preventing a final vote on redistricting.  It's not just a case of "I've gonna take my ball and go home," it's a case of "I'm gonna steal your ball (and your ball and your ball) and make damn sure nobody can play at all!"

The Voting Rights Act of 1965 still applies to Texas.  If, for instance, the Republican majorities in the Texas Legislature passed and Gov. Perry signed legislation that created new district boundaries with the intent — or even the effect (since we're all still presumed by federal statute to be racial bigots here in Texas) — of unfairly diluting minority representation, then such a map would doubtless be thrown out promptly by the federal courts.

Actually, however, the various congressional maps that the legislators still in Austin are now debating continue the gerrymandered protection of the districts previously created as "minority strongholds" — meaning this isn't about unseating minority Democratic incumbents.  In fact, the maps that are being discussed do no more than make the ratio of seats thought likely to be won by Democrats roughly proportionate to the statewide percentages that Democratic candidates got in the 2002 elections — which will still mean a large plurality, but something less than a majority, of the Texas delegation to the US House of Representatives.

The truant Texas Dems fled to New Mexico to ensure that contrary to the expressed will of Texas voters, Texas' congressional district boundaries will retain their current manipulated shape so that incumbent white male Democrats remain over-represented in the Texas Congressional delegation. 

The closest to a principled defense mounted by the truants has been a press release arguing that "11 Republican Senators broke a quorum in 1993 to, ironically enough, stop a redistricting bill."  But look closely at the AP story appended to the bottom, or for that matter to the careful choice of words in the press release.  The Republican state senators didn't flee the state for weeks at a time — rather, they missed one quorum call, on one day, because they were in closed-door session in the Capitol building.  And the issue then wasn't gerrymandering US Congressional districts, but possibly reforming the badly broken system for partisan elections of Texas judges.

This is, very simply, a question of democracy versus anarchy.

Which finally brings me back to Arnold's website and the source of my giggles:  It remains to be seen whether Gov. Perry can somehow induce the truants to return to Texas with fines or court proceedings.  But I couldn't read Arnold's slogan without suddenly getting a mental image of The Terminator cruising into Albuquerque on a big chopper, shades reflecting the New Mexico desert sun, and rounding up our little lost lambs for us.  Would that it could be so.  After all:

Doesn't there come a time when we the people can demand of our elected officials that they at least show up?

Why good lawyers who are also good people must sometimes take on very bad clients (a reply to Mark A.R. Kleiman)

On a broader question than that of the particular ethical position of Ms. Gorelick and Wilmer, Cutler & Pickering (about which I've already blogged until I'm blue in the face), Blogger Mark A.R. Kleiman has a couple of interesting posts from last Thursday and Friday that criticize the firms who're representing the House of Saud against families of 9/11 victims.  They're followed by a post from Monday discussing whether universities that accept Saudi money are equally blameworthy, and they're all superbly written and argued, but my particular interest is with the law firms.   

As in one of my prior posts regarding Ms. Gorelick, full disclosure — and indeed, considerable residual pride — oblige me to point out again that from 1981-1987 I was an associate at Baker Botts, the firm that was the main subject of the Michael Isakoff & Mark Hosenball piece in Newsweek/MSNBC last April 16th regarding the representation of the Saudis in the 9/11 litigation.  I freely confess a strong continuing bias in favor of that firm and its lawyers; it was there I acquired the practical foundations for almost all that I now know about my profession.

Mr. Kleiman writes:

The decision to take a client shouldn't be, and isn't in fact, automatic. It's an exercise of judgment, for which lawyers ought to be held morally accountable. I'm virtually certain that none of the white-shoe firms defending the Saudis would have taken a case, civil or criminal, for one of the Mafia families. And I'm quite certain that the strong need, under the adversary system, for everyone to be represented in court does not keep those same firms from refusing clients who can't pay their bills.

I agree with your first two sentences, Mr. Kleiman, and I also agree that the firms listed in the Isakoff & Hosenball article, including Baker Botts and Wilmer Cutler, are indeed profit-making enterprises whose services are consistently of a quality that allows them to bill at the high end of the hourly rate spectra in the various cities where they practice.  They are also, however, among the firms that most actively encourage — and effectively subsidize out of their partners' profits — pro bono representation of clients who can't pay their bills. 

When I was at Baker Botts, for instance, because I had just come out of a judicial clerkship for a judge on the U.S. Court of Appeals for the Fifth Circuit, I volunteered to oversee a program under which that firm's trial lawyers accepted assignments to represent indigent criminal defendants in their Fifth Circuit appeals.  The firm's partners not only willingly, but enthusiastically wrote off millions of dollars in attorney-time on those cases — real money in opportunity costs, for we were turning away paying business.  The arrangement was also a public service inasmuch as the Fifth Circuit judges generally asked us to take especially challenging cases that raised difficult or novel legal issues, rather than run-of-the-mill ones, specifically so that the court would have the benefit of top-flight briefing to match that done by the state attorneys general who were on the other side. 

... [T]here must be some times when a lawyer shouldn't take a legally meritorious case. Perhaps defending the financiers of mass murder — the operators of a system of finance that is still educating the mass murderers of tomorrow in Wahhabbist madrassas — against a tort action by the relatives of the victims is different in some relevant way, but I'd like to hear someone explain precisely how, rather than just reciting mantras about how the adversary system magically leads to justice being done.

You assume here, of course, that the Saudis — all Saudis, in fact — are guilty.  I'm don't know enough about the particular individual defendants in these lawsuits to assess their comparative responsibility for the educational system you describe, but in general, I'm no friend of the Saudis either.  In fact, my personal biases against them are probably such that I'd be struck "for cause" from a panel of prospective jurors in one of these cases.  If it eventually turns out, however, that you and I are wrong in our biases and beliefs — neither of us having yet heard a speck of judge-validated evidence, mind you — then we should be ashamed, especially if we somehow discouraged or interfered in (or even just belittled and snickered at) the acquisition of competent counsel for persons later proved innocent.

Let's leave that possibility aside, though, for purposes of argument, and engage in the entirely bigoted presumption that all the Saudi defendants who've been sued are equally as culpable, legally and morally, as the 9/11 highjackers themselves and those who masterminded and directed their operations.  Even so, you're missing something, Mr. Kleiman, that is vitally important about the way the adversary system is supposed to function — and in my personal experience, actually does function with surprising regularity.

In both criminal and civil court proceedings, a defense lawyer has two related but distinct roles.  You've focused only on the more obvious one, that of courtroom advocate.  Yes indeed, in fulfilling that obligation to one's client and to the adversary system, one is expected to exert oneself vigorously and energetically within the bounds of the law, and equally so for clients both odious and beloved. 

But there is a separate, less obvious function — indeed, one that's of necessity almost entirely hidden — which is to serve as the client's private counselor.  In this role, the lawyer assesses the evidence for and against his client, and provides the client with his best, unvarnished opinion as to the range of risks involved.  And very, very often — in both criminal and civil law — it is the most guilty, most odious client who most desperately needs that advice so that he can make an informed decision:  Do I pay to settle?  Do I take this plea bargain that's being offered?

If the question is, "What is the best and most efficient way for justice to be done for all involved in this lawsuit?" — and if your prejudice and mine about the Saudis is, in fact, well founded — then the best thing, believe it or not, is for the Saudis to have lawyers like Baker Botts or Wilmer Cutler representing them.  In their public role as advocates, they'll do whatever can be done to get their clients in the best possible posture, whether they're guilty/liable or not.  But in their private role as counselors, they'll be saying, "Here's what is going to happen in a trial.  Here is how a jury in Bexar County, Texas, is likely to react to these facts.  Here's what we estimate your odds are of getting a reverse-and-render on appeal."  And if the news is bad, these lawyers ought to have sufficient credibility with their clients that their clients will actually believe them, making them far more likely to act reasonably in order to avoid the consequences.

You don't want mullets from Dewey Cheatum & Howe representing the Saudis if they're guilty/liable, because that is going to prolong matters unnecessarily and probably make less likely a fair settlement short of trial. 

I am as jaded about my profession and about the American criminal and civil justice systems as anyone you'll find, Mr. Kleiman.  I am indeed a curmudgeon.

But two things I still genuinely believe in, 23 years into my practice, are the adversary system and the jury system.  Neither system is "magic" — I've seen and participated in specific cases where either or both have failed badly, shockingly, tragically — but my belief in them does indeed still constitute one of my "mantras."

I think that's probably true, too, of the lawyers your posts criticize.  You paint with an awfully broad brush, sir.  Again, I admit my bias in favor of some of those lawyers you've pilloried because I know them personally.  But subject as it is to my own biases, my opinion is that you've taken an easy, populist viewpoint that's given them far too little credit here for their ethics and integrity.

Having said all this, I come back, finally, to your original point:  Yes, judgment and discretion are indeed involved, the system is not automatic or self-executing, and one can indeed believe in and participate in the system while still turning away some clients on grounds of repugnancy.  I say again that I have a strong, personal bias toward believing in the complicity to some degree of the House of Saud in the events of 9/11; if offered their representation, I probably would turn it down. 

But the reason I would do so is because after an honest self-appraisal, I would likely conclude that I could not transcend my biases, and I could not do my best for them.  Apparently there are lawyers at Baker Botts — and at Wilmer Cutler; Jones Day; Ropes & Grey; White & Case; King & Spalding; Akin Gump; and Fulbright & Jaworski, fine firms all in my own first-hand experience! — who either lack my prejudices or else can transcend them.  As a supporter of "the system," I'm grateful for that.  Their efforts will be opposed and counterbalanced by capable lawyers on the other side — who also are serving both as public advocates and private counselors.  Now let justice be done.

UPDATE (Tues Aug 12):  Mr. (actually, it's probably "Professor," but his bio link on his website is broken and I can only go by his .edu email extension) Kleiman graciously posted a comment to one of my posts about Ms. Gorelick, and a more extensive reply on his own website.  He argues eloquently — but I continue to think, unrealistically — for an absolute standard that permits of no "informed waivers" of conflicts in organizations like the 9/11 Commission.  I'm disappointed, however, that he chose to not respond at all to this post  regarding his criticisms of the law firms representing the Saudis.

In political shocker, Liberia's Pres. Taylor abdicates in favor of surprise successor!

(Compiled from international wire service reports issued by Royters, the Baghdad Broadcasting Co., and the Clinton News Network:)

As rebels lay siege to Liberian capital Monrovia today, with U.S. warships hugging the West African country's coast, embattled President Charles Taylor fled into exile in Nigeria. 

"I am of course concerned for the future of my country," Taylor was quoted as saying at a surprise, impromptu press conference held on the jetway leading up to his chartered Air Nigeria jet, "which is why I have arranged for its smooth transition into the hands of a demonstrated political leader whose electoral popularity has almost rivaled my own." 

As the assembled reporters clamored for him to identify his mystery successor, however, Taylor would only smile and wave.  "You'll see soon enough," he chortled as he ducked into the jet's cabin, pulling the door behind him.

Moments later, shocked correspondents from the international press were led to another chartered jet parked near the terminal building of Monrovia International Airport, from which emerged a figure familiar to at least many of the American journalists present:

"People of my new homeland, I have arrived!" announced ex-California Governor Gray Davis through the megaphone handed to him by a staffer.  "You need no longer fear power shortages, budget deficits, or any other of the troubles that have bedeviled you in the past!  Happy days are here again!"

A confidential source close to the new president revealed that frantic negotiations for the transition had begun within minutes after Austrian-born body-builder and actor Arnold Schwarzenegger had announced his candidacy in the upcoming California recall election on the Tonight Show with Jay Leno last Wednesday night.  "Taylor's guys drove a hard bargain," said this individual.  "We couldn't seal the deal until we agreed to give them the Blood Alley Bomber as part of the package."

The identity of the "Blood Alley Bomber" was withheld, but he is believed to be the California Highway Patrol sergeant who led the motorcade transporting Gov. Davis from Sacramento to Los Angeles late Saturday night.  The two unmarked cars in the motorcade were clocked at 94 m.p.h. along a stretch of State Highway 46 in northern San Luis Obispo County whose posted speed limit is 55 m.p.h. in a "double fines" zone.  The convey led a Templeton, CA-based CHP officer on a merry chase, without responding to his flashing red lights, for several minutes along a five-mile, two-lane stretch of highway known as "Blood Alley" because 29 people have died there in 19 crashes over the last five years.  Actor James Dean was killed on the same stretch in 1955.

"Taylor heard about this guy," said the confidential source, "and figured a get-away driver like that was worth his weight in smuggled diamonds.  Did I say diamonds?  I mean, uh — never mind."

I must be doing something right(-wing?)

Last Friday afternoon, James Taranto of the Best of the Web Today was kind enough to quote from and link to my post on Ahh-nuld's entry into the California gubernatorial race, which tickled me pink. 

Then last night, after I'd posted my humble rebuttal to his editorial in Sunday's Washington Post, National Review Editor Rich Lowry linked to my piece on the National Review Online blog, "The Corner" — describing my piece as "a good representation of one sort of response" that he was getting to his editorial. 

Unless you follow the teachings of the "Al Gore & Maureen Dowd Academy of Journalistic Integrity," that's not quite the same as saying I wrote a "good ... response" — but it's sure better than a poke in the eye with the proverbial sharp stick!

I'm flattered, honored, and tickled pinker that Mr. Lowry bothered to read and link to what I'd written!  Posting to something from someone who disagrees with you displays honesty, class, and self-confidence — more principles that I'll try my best to live up to with BeldarBlog.

Various other folks have been kind enough to mention and link to BeldarBlog in its first week of operation.  The very generous Denise Howell at Bag and Baggage, for instance, posted that I have "Texas-sized rations of charm, humor, and wit to spare."  Woo-hoo!  I may start quoting and linking that in my "Yahoo Personals" ads!  (But then again, she also notes that she's never met me.  Hmmm.  On second thought, maybe no link, just the quote ....)

Meanwhile, back in sharp-stick territory, Eliot Gelwan's follow me here blog reproduced the same excerpt from my Ahh-nuld piece that Mr. Taranto had quoted — you know, the one about Osama bin Laden and bed-wetting — and said that it was "consistent with my [that is, Mr. Gelwan's] longstanding claim that Bush's inarticulateness has been a major part of his appeal to the idiot fringe of the Right."  Again, woo-hoo!  There's something we have bipartificial agreement on!  (I gather from Mr. Gelwan's very articulate blog that he'd identify himself as being on the political left.)

So I'm having much fun in the blogosphere.  Thank you to all who've posted, linked, emailed, or just read any of the stuff I've written.

I do sort of have a creepy feeling, though, that someone is silently watching me through the gaps between the circled wagons at Wilmer, Cutler & Pickering.  I'm sure it's just my imagination, though — probably just residue from the close call with the Hillary-channeling episode. 

Bloggers (except me) still demand Jamie Gorelick's resignation from the 9/11 Comm'n because Wilmer Cutler defends a Saudi prince

[Fri Aug 15 Update: Those coming here from InstaPundit's link may prefer to read this post last for continuity.  Oldest to newest, my three earlier substantive prior posts on this subject are as follows: first, second, and third.  Otherwise my references to "dog slobber" and "unicorns in Lafayette Park" may be a bit ... obscure.  Welcome to BeldarBlog. — The Proprietor]

Dwight Meredith at P.L.A. has posted again about Ms. Gorelick and was kind enough to link and quote from my overlong first post on the subject.  He cites me as the contrarian example to the general proposition that "there is a consensus across the political spectrum that Ms. Gorelick should resign from the 9/11 commission," and indeed, so say the bloggers he's linked.

I persist in believing that "absolute purity" is an unrealistic and probably unattainable standard, but I guess it shouldn't surprise me that folks whose political starting point is on the left would be more idealistic about this than I am.  So here I stand — a voice in the wilderness, a lone conservative willing to defend a Clinton administration official from slings and arrows coming from both left and right, yet desperately trying not to channel the voice of Hillary.

Taking up my challenge to find some unicorns in Lafayette Park, Mr. Meredith nominates Gary Hart and Warren Rudman.  I'll agree that the latter is at least a hoss, and he might fit, if his law firm — Paul, Weiss, Rifkind, Wharton & Garrison LLP — doesn't represent any clients with vested interests in the Commission's potential findings.  But I'd frankly be fairly surprised if Paul Weiss doesn't have airlines and/or Middle Eastern governments somewhere on its client list too.

As for former Senator Hart, he's still listed as "of counsel" with Coudert Brothers — another big, international law firm, heavily into lobbying, which is likely to represent ... well, see the pattern developing here?  I know some have been heralding his political rehabilitation and return from exile, and his long suit as a Senator was indeed intelligence and foreign affairs.  But in contrast to either Ms. Gorelick or, say, Warren Rudman, if you ask ten people on the street whether they recognize the name "Gary Hart," I'll bet five or six of them would.  And what they remember about Hart was a lack of intelligence and a domestic affair, all embodied in that incredible photograph of him grinning for the reporters while sitting on the back of the good ship "Monkey Business" with Donna "Not-His-Wife" Rice on his lap.  I suppose the condition of his lap, occupied or otherwise, doesn't relate directly to the qualifications for this Commission that were specified in the enabling statute (which I linked to and quoted as part of the Correction at the end of my second post on Ms. Gorelick).  But like Dr. Kissinger — who, as I noted in my tedious third post on this subject, was Dubya's uninspired original choice to chair the Commission — Senator Hart still has "high negatives" in general, and he'd diminish, rather than add to, the Commission's credibility with a substantial segment of the public.

Mr. Meredith is right, however, to note that there's no reason whatsoever that any seat on the Commission, including the one presently occupied by Ms. Gorelick, must be occupied by a lawyer.  Hey, maybe that's how the Democratic pols in Congress could nip the Draft General Wesley Clark movement!

(PS: Sorry about not giving a permalink to Mr. Meredith's posts, but the archives for Blog*Spot seem to be busted.)

*****

UPDATE (Tues Aug 12):

Odd what does and doesn't turn up in one Google search that turns up in another — especially when it's from the Associated Press, which you'd expect would be pretty widely reprinted — but in an article that I just found whose main focus was on potential conflicts of 9/11 Commission members whose law firms represent airlines, there's this fairly interesting stuff:

Some say the same factors that produce potential conflicts may make the commissioners especially qualified.

Commissioner Jamie Gorelick said she is prepared to recuse herself if the commission explores actions made by the Justice or Defense departments while she worked for them.

But she added, "As I've said to the families (of victims), I come with broad and deep experience in the areas of law enforcement, defense and our intelligence community, which I think will be helpful to the commission."

I agree with her, but I still seem to be the only person commenting on this in the blogosphere who's willing to call dogslobber.  The perfect is the enemy of the good.

Tom Maguire at Just One Minute has a new post up cleverly entitled, "Ms. Gorelick And The 9/11 Commission - It's Not As Bad As You Thought...It's Worse."  As always, I appreciate his cross-link (although I was merely reporting and commenting on Dwight Meredith's suggestion of Warren Rudman as a possible replacement, not suggesting him myself, since ... well, dogslobber).

Update (Fri Aug 15):  Professor Glenn Reynolds a/k/a InstaPundit yesterday linked and quoted from Tom Maguire's Tuesday "Worse" post, and tonight Prof. Reynolds was also kind enough to link to this post to give some exposure to the "Jamie Is Not Necessarily an Unethical Slut" point of view (of which I seem to be the only proponent).  This proves that the InstaPundit is indeed fair and balanced.  Hello and welcome, InstaPundit readers.  Please accept my apologies that my arguments run so long and are so spread out, but such are the natures of lawyers and running debate. 

I have not read Prof. Reynolds' book Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society (written with Peter H. Morgan), but Prof. Reynolds blogs that in it,

we argue that appearance ethics are proper for people in judicial-style roles, but shouldn't be applied in political-style settings. So the question is, is the 9/11 inquiry commission essentially judicial (supposed to be independent, focused on facts, non-political) or is it political (involving accommodations between interest groups). It seems to me that it ought to be the former. Sounds like it's shaping up to be the latter.

This is an intriguing distinction — enough so that I may actually go buy the book tomorrow! — and it feeds nicely into one concern that I've had:  With respect to a Commission like this, where the entire American public is, in effect, Ms. Gorelick's "client," who if anyone should have standing to make the decision whether or not a potential conflict ought to be waived?  Arguably, no one can speak for everyone, which might be one reason for the distinction Mr. Morgan and Prof. Reynolds draw.

My initial reaction to this, though, is that it's still too idealistic and impractical an approach.  And the enabling legislation more or less anticipated this problem by requiring that membership on the Commission be divided equally between Republicans and Democrats, and that Congressional leaders from each party (and indeed, from each legislative chamber! although that level of detail may have been ignored in practice from what I can tell) would make these sorts of decisions as part of the selection process.  In this view, the Democratic leadership was speaking on behalf of its national constituency in deciding, "Is this a serious problem that should disqualify Ms. Gorelick, or is it just dog slobber?"

The idea that the Democrats who selected Ms. Gorelick were positioned to, and effectively did, make a knowing and informed waiver of her potential conflict is of course undone by the slight problem of timing:  When they picked her, she was still at Fannie Mae.  So then did Jamie Gorelick call her Democratic party sponsors, to seek their consent to the change in circumstances before she agreed to take the Wilmer Cutler job?  So one might hope, and if she did, and if they approved, then I'd have thought that decision would have been publicly announced with the same fanfare as her original appointment.  Here, as in most things political, any smell of cover-up attracts the conspiracy buzzards.  If Senator Daschle or Representative Pelosi have decided (as representatives of their national constituency) that it's in the nation's best interest to waive this conflict, they ought to be willing to run the Sunday-morning talk show gauntlet to explain why.

WaPo nails Gore

While some of the opinions expressed in this editorial in today's Washington Post about Mr. Gore and his August 7th speech are liberal (and therefore critical of Dubya), they're clear-eyed.  They're free from the mouth-frothing that's infected Al Gore, the editorial writers of the NYT, and more sadly, the supposed "news" writers of the NYT. 

But especially given their source, WaPo's observations about both Gore's speech and the Democratic party's increasing drift toward radicalism are ... surgically brutal, if that term makes any sense. 

I've watched the trailer from "The Passion," and I was impressed.  But whoever wrote this editorial could give Mel Gibson a few tips to make the crucifiction scenes even more realistic.

WaPo's never going to be "fair and balanced," but this is a good example of why I agree with others who've observed that WaPo is moving to supplant the NYT as the nation's "paper of record."

(See, I can too write a post that's less than 3000 words!)

*****

UPDATE:  Referring to the same Gore speech, Bob Herbert's opinion piece in Monday's NYT entitled "The Art of the False Impression" begins with a whine that "[i]n the superamplified media din created by the likes of Arnold and Kobe and Ben and Jen, it's very difficult for the former vice president, a certified square, to break into the national conversation."  Herbert doesn't really have a point to make after that except that we all ought to pay more attention to Mr. Gore, so he contents himself with summarizing and repeating Gore's speech.  Pretty sad, really.

Should you hire your lawyer based on a recommendation from the Man from U.N.C.L.E.?

There are now marketing firms that peddle slightly-customized television commercials using "professional acting talent" to law firms around the country — mostly to lawyers seeking to represent injury victims on personal injury claims.  From a recent report in Marcia Oddi's Indiana Law Blog and accompanying press coverage, I gather that the Indiana Supreme Court has just slapped down a small firm in Indianapolis who paid to broadcast some of the most ubiquitous of these ads — some I've also seen frequently in Houston, with only the firm name changed. 

These ads depict pretend-insurance adjusters talking tough about how they're going to walk all over some little guy who's just submitted a claim, then becoming panicky when they find out who his lawyers are — generally along the lines of "Oh my god, Dewey, Cheatum & Howe?  [insert cheesy sound effect here and have actor spill something]  We can't go to court, we've got to settle!  Get out the checkbook, fast!"  Then a mature, deep-voiced, handsome, and well-dressed actor — Robert Vaughn, vaguely still familiar to millions as "Napoleon Solo," the debonair spy in the 60s TV show "The Man from U.N.C.L.E." — chips in with his two cents:  "Tell the insurance company you mean business by hiring Dewey, Cheatum & Howe!  They go after your rights piece by piece by piece until you get every dollar you deserve!"  The impression is that these lawyers are likely to do to the insurance company what James Bond always does to S.P.E.C.T.R.E. unless they pay up, right now, no questions asked! 

In the ads, the insurance companies are eager to pay up regardless of the strength or weakness of any underlying evidence on damages or probable liability.  That's why the Indiana Supreme Court ruled that these ads violated the canons of ethics — they created unjustifiable expectations on the part of prospective clients that the advertising lawyers can always achieve a positive result based just on their reputation.  Or in other words, the central premise of the ads was misleading humbug — a lie, although the court didn't use that perfectly apt word.

For most of the last 20+ years, in addition to purely commercial litigation among businesses, some portion of my practice has included representing either insurance companies and self-insured businesses who are being sued, or injuried people who are doing the suing.  From personal experience on both sides, I can confirm to you that the reputation of the lawyers involved on each side does indeed count for a great deal in the very subjective evaluation of what a personal injury claim is "worth."

But the cruel, sad irony is, the lawyers you see advertising for PI cases on TV are, more often than not, lawyers whose actual reputations cut against their clients, at least in my personal experience.

UPDATE (Wed Aug 13):  Yet another fascinating blog that was introduced to me today by a follow-up post on Ms. Oddi's Indiana Law Blog is ethicalEsq?.  Its homepage is subtitled "advocating client-centered legal ethics," and its "about" page says, "The underlying question will always be whether a proposal, rule or action puts the client's interests first."  (This leaves me wondering if there's a competing school or doctrine of legal ethics that doesn't — but never mind that for now.)  The URL points to Harvard Law School, but it's apparently edited by a "retired attorney and mediator" from upstate NY, David Giacalone, with some other folks also helping out.  I'll definitely give the site a closer look later.

What came to my particular attention, though, is Mr. Giacolone's post today on the Indiana Supreme Court's decision on the "Man from U.N.C.L.E." TV advertisements:

With all due respect, this is just plain silly, highly insulting to consumers, and a waste of judicial resources.   The Federal Trade Commission knows a thing or two about misleading and deceptive ads.

Mr. Giacalone then assesses these ads as harmless on grounds that the ordinary consumer would would recognize them to be "obviously exaggerated or puffing representations," citing a Federal Trade Commission policy statement as a touchstone.  He concludes:

If courts and bar associations really want to help personal injury victims, they should start making sure that contingency fees are reasonable and that clients are fully informed about their right to negotiate over the percentage charged.   And, they should stop wasting their time fuming over ads that we all love to hate, but are all about familiarity and name recognition, not believable claims.

Clearly he comes at this issue from a different perspective than I do — one that is making me scratch my chin and mumble to myself a bit.  Two things occur to me off the top of my head:

• I'm inclined to believe that courts and bar associations can and should employ a higher level of scrutiny than does the FTC because I'm inclined to believe there is a unique potential for deception, and a corresponding difficulty for a layman to evaluate and "comparison shop" in a meaningful way, when it comes to lawyer advertising.

• I'm emphatically less confident than Mr. Giacalone that all lay consumers, or even most lay consumers, will recognize these ads as being obvious exaggerations.  To the contrary, I'm quite concerned that a substantial portion of the public may believe, "It must be true or they wouldn't let them say it on TV."  Even if only 10 percent of the public thinks that, in my judgment that's too many to ignore.

Mr. Giacalone appears to be keen on the notion that contingent fees should be the subject of more active negotiation.  This too is a proposition that makes me rub my chin and ponder — I'm not immediately certain that there are no downside risks to that proposition.  Depending on what further thoughts burble up from the thick mud of my subconscious, I may write more on this topic later. 

Should Dubya lead from the front in the Culture War? (A rebuttal to Rich Lowry's WaPo editorial)

I'm a fan of Rich Lowry and his writing, and agree with him far more often than not.  But I respectfully  disagree with the prescription he urges in the conclusion of his opinion piece in the Sunday Outlook section of today's Washington Post entitled "In the Culture War, President Keeps His Distance."  In his wistful longing for Dubya to engage more directly on the hotbutton social issues currently being fought out in the Culture War's no-man's-land, Mr. Lowry is missing a very simple and preemptively important point — one that, fortunately, Dubya Rove & Co. not only "get," but live and breathe.

Lowry first begins with the familiar observation that "Bush is a polarizing figure in the culture war simply by virtue of who he is," and that

[h]e fires an implicit shot in the culture war every time he drops a syllable or hooks his thumbs, cowboy-style, in his jeans. This helps account for why he is so hated by elements of the left, as hated as Bill Clinton was by some conservatives. When he says "bring 'em on" of anti-American fighters in Iraq, his macho challenge makes his critics crazy.

This is, if anything, an understatement of the situation.  For the people who comprise what's coming to be commonly called "the Angry Left," the debate on every political issue now begins with the question, "What position is Bush taking on this subject — whatever he's for, we're against, period."  And anything else they say after that is just after-the-fact justification.  For these folks, their seething and reflexive white-hot hatred of Dubya has altogether displaced their capacity for reason and judgment.  That leaves what's left of the left in the Democratic Party — people like Joe Lieberman, for instance — frustrated and understandably fretsome.

The irony, of course, is that Dubya is not, and never has been, angry.  Lowry correctly describes him as "a pacifist at heart" on the Culture War issues — abortion, gay marriage, racial preferences — whose "heartfelt sentiments" and fresh and personal "sense of redemption" give him "a kind of supercharged tolerance" on these issues:  "For all his bellicosity abroad, Bush's message at home often is: Please, let's not fight." 

And this leaves Lowry frustrated:  "This is a loss for those of us who are conservatives. It means that, on important issues, a crucial player isn't fully engaged."  It makes those who enthusiastically take up the cudgels on these fights feel unsupported, says Lowry, and worse, "the effect of Bush's accommodationist tendencies on these issues is to leave them to the courts."  Lowry concludes by arguing, in effect, for the President to lead from the battle-front on these issues:

There's nothing wrong — nothing hateful — about open and passionate argument. Given the winning way his faith has influenced his political persona, President Bush is perfectly positioned to demonstrate this by example — that we can fight, but still love, that a "welcoming country" need not forfeit its right to govern itself.

Following this advice, however, would be perhaps the only thing that might put Howard Dean in the White House in January 2005.

Lowry does acknowledge — but only briefly — that in staying away from the front lines in these Culture War battles, the President is

reflecting not just his beliefs and his temperament — he fundamentally likes getting along with people — but an electoral strategy. Part of the point of compassionate conservatism is to avoid inflaming the other side, to keep the Democratic base relatively quiet in a kind of soothing voter suppression.

Well, yes.  Except that with respect to most of "the Democratic base," it's not working and won't work.  They won't be soothed, and any attempts to do so only further enrage them.  They're going to be "the Angry Left" whether Dubya takes a poke at them through the cage bars with a stick or not.

Mr. Lowry, the "electoral strategy" isn't about the Angry Left.  It's about not alienating any part of that particular slice of the electorate that voted twice for Ronald Reagan and for George H.W. Bush in 1988 — but then for Bill Clinton in 1992 and 1996 and for Al Gore in 2000.

We are each the product of our significant life experiences, and besides the personal redemption Dubya found through his religion, I believe that the other most profound experience in his pre-presidential life was watching his father's Presidency come to a crashing and premature end.  He was inside, but on the fringes and largely unable to affect that catastrophe.  But the pain and frustration he absorbed during it was, I believe, a large part of what fueled his resolve, his inner fire, to become a successful leader himself.  It carried him through two Texas gubernatorial races and a historic, eyelash-close Presidential race, right up through September 10, 2001. 

And the next morning, it was wholly displaced by an altogether different, more noble, and more powerful sense of mission and destiny as the Twin Towers collapsed into themselves in a storm of dust and incinerated innocents.

For George W. Bush, I believe, politics is not an end in and of itself, a career skill to be mastered and lived and breathed the way Bill Clinton or Tony Blair have done it.  For Dubya, politics is — and always has been, and always will be — nothing more than a means.  Getting elected in 2000 was just something that had to be done along the way toward exorcising the demons from November 1992. 

But getting re-elected in 2004 is something that now has to be done to continue the mission that enveloped him on 9/11.  Dubya doesn't care about staying President because he wants to be President, he cares about staying President so he can complete the process of transforming the world into a place where America is no longer vulnerable in the ways we were, when we were still innocent and when the towers stayed in the sky.  And so this President will ruthlessly suppress any temptation to fight fights that are likely to interfere with that next means, that election in 2004 — because he is so intent on fulfilling the end-goals of the mission that suffused him to his core on 9/11.

It's possible that after November 2004, with a second term secured, Dubya might move up to the front lines of the Culture Wars.  But frankly, I doubt it.  I don't think he sees "making all Americans moral" as part of the mission, or even as something that can be accomplished by the direct and intentional leadership of any  President.  He has, and he can, and he will continue to affect the morality of his countrymen, and to an extent people elsewhere in the world, on the margins — by personal example, and by consistently working the systemic levers like judicial nominations that the Constitution puts into the hands of the Executive.

But he's not the Pope of America, nor even of "the conservative movement."  He doesn't want to be, and I don't think he or any other President could or should be.  Those who are the every-day combatants in the culture wars — while I applaud them — ought not expect a General Bush to race to the front lines on a white charger with sword drawn, to lead them in smiting the unrighteous.  There's too much risk of that kind of leader getting shot off his horse.  Dubya intends to stay in the saddle — leading all of his countrymen on other, less metaphorical battlegrounds — all the way through January 2009.