Unemplawyered

Terrible all around...

Here in Connecticut, sorting out a situation that just doesn’t get much worse:

A Milford police officer did not enter a plea in his first court appearance today. He’s charged with manslaughter following an on-duty car accident that left two teens from Orange dead.

Officer Jason Anderson remains on paid suspension following the crash in June that killed Dave Servin and Ashlie Krakowski, both 19-years old… 

The horrific crash was captured on another officer’s dashboard camera .  A state police investigation revealed that Ofc. Anderson was traveling 94mph, on Route One in Orange, at the time of the crash. He was not on his way to a call and he was not traveling with his lights or sirens on… 

The teens had been at a party at a house in Milford.

According to court documents, the teens were seen drinking, even playing beer pong, in the hours before the crash.

How in the world do you assign fault in a situation like this?  Teens allegedly drinking, a police officer allegedly acting in a reckless manner and, as Anderson’s lawyer, the legendary Hugh Keefe, says, an extremely tragic result for three families. 

What a shame.

11pm

Football. That's right, football.

Make sure you get over to The New Republic and check out this article.  I love when brilliant people start in on analyzing sport and its place in American culture: invariably it takes on a scientist-in-a-lab-coat-watching-the-mice feel.  I do think, however, that Wilcomb E. Washburn is a football fan, in addition to being a brilliant person, and he captures, beautifully, that tension between those who get it and those who don’t:

Football is variously discussed by intellectuals under the heading of amusement, recreation, business, or mayhem. Those identified with the game, such as Gerald Ford as a player, or Richard Nixon as a fan, are pitied for having played the game too long without a helmet or for being unable to distinguish right from wrong.

Almost all intellectuals would, with Christopher Lasch, in a recent issue of the New York Review of Books (April 28, 1977), deplore football as one of the games which enlist “skill and intelligence, the utmost concentration of purpose, on behalf of utterly useless activities, …”

And, Washburn puts football in the context of what it means to be an American:

I must take issue with my friends and colleagues in the historical profession who can see little connection between football and American history. Any activity which engages not only the numbers of individuals who play and watch football, but the intensity of their commitment, deserves study. The game of football is a better barometer of American character than any other aspect of our culture because it reflects the true—and not the ideal—nature of our people. The brutality and insensitivity (along with the courage and intelligence) that characterize the game are integral parts of our national character. A game which recognizes and utilizes these characteristics is more consistent with our actual nature than one which appeals to our “better” nature.

Integral parts of our national character…I think our Mr. Washburn has gotten to the heart of the matter.

10pm

The Child Whisperer

So, apparently certain parents are taking a cue from Cesar Millan, a.k.a. The Dog Whisperer, as to how to raise their children:

But some parents — particularly those weary of never-say-no techniques and child-rearing books suggesting that children should call the shots — say they find inspiration, and even practical advice, in Mr. Millan’s approach, which teaches pet owners how to become the alpha dogs by projecting his trademark “calm-assertive energy.”

DaddyCast, a series of podcasts published online by a father of two who identifies himself only as P.D., devoted an episode last year to discussing how he applied Dog Whisperer philosophies to raising children. In the episode, he recalled exchanging Twitter messages with a father who wrote: “Pampering and never punishing will make a child crazy and unlikable, never self-competent.”

I mean, I like the Dog Whisperer as much as the next guy, but … frankly, this is a bit disturbing.  I’m guessing this is the same group of parents who put their kids in those weird, leash-like harnesses when they take them to the store…

9pm

There's no such thing as global warming...

…maybe if you close your eyes real tight and say it again and again you can make those pesky ice chunks go away!

(Listen, I don’t like Al Gore any more than you do, but c’mon, some things just are.)

9pm

Fair game?

Deadspin, the sports and “human interest” blog, has always had an interesting relationship with ESPN: David poking and prodding Goliath, pestering the slow moving monolith with its unhipness, pointing out its warts with great gusto.  It always seemed to me like a little brother making fun of his big brother, frantically trying to get some attention even if it had to be negative.

Recently, though, things have gotten downright ugly.

Instead of focusing their critiques of ESPN on its sports coverage and on-air personalities, Deadspin has turned its attention to some of ESPN’s off-air business people.  On Friday, Deadspin published a post that discussed an alleged affair between two business people - naming each - as well as a rumored affair between a business person and an on-air personality.  Another post from October contained very specific statements about various trysts allegedly undertaken by another ESPN business person - also named - depicted in rather, uh, crude terms. 

Some of those business people have allegedly lost their jobs at ESPN as a result of Deadspin’s posts.  They have spouses, and children.

All of which raises some interesting questions.  Could Deadspin have defamed any of the subjects of these posts?  Are the business people of whom Deadspin writes “public figures” or private persons?  Moreover, even if every word of what Deadspin has published about these ESPN business people turns out to be true, was it appropriate, nonetheless, to publish those stories about their personal lives?  To what end, exactly? 

Very generally, libel is slander in a written form, and a viable cause of action exists against the publisher of the statement if the following elements exist: the statement about the subject must be false, it must harm the reputation of the subject, it must have been published and, if the subject is a public figure, he/she must demonstrate actual malice in the publishing of the false statement (knew the statement was false or acted with reckless disregard) - if the subject is a private figure, the subject need only demonstrate negligence in the publishing of the false statement.

The Law.com dictionary describes a public figure as:

a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero.

In the Gertz case, decided by the U.S. Supreme Court (Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)), the necessity of the law to extend greater protection to private persons as versus public figures is discussed:

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. 9 Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.

Of that hypothetical private person, the Court says this:

He has not accepted public office or assumed an “influential role in ordering society.” Curtis Publishing Co. v. Butts, 388 U.S., at 164 (Warren, C. J., concurring in result). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.

In the instant situation, one could argue that the ESPN business people about whom Deadspin has written these sordid tales are actually public figures, even if they are not politicians or celebrities: they each have an influential role in ordering society, at least to some limited degree, as members of the press, and have access to the channels of effective communication by virtue of their employment at ESPN, a large media outlet.  Moreover, one could argue that by allegedly having an affair with an on-air personality, at least one of those business people has become a public figure himself.

Alas, were any of the ESPN business people to pursue a defamation action against Deadspin, the sucess of such an endeavor would turn on the truth of the allegations - and, as well all know, the truth is often a nuanced, grayish and slippery thing to get one’s hands around, and a very expensive pursuit as well.  So, a torrent of libel suits against Deadspin is unlikely.

I suppose, then, it is left to the public to decide, regardless of whether Deadspin has defamed anyone, whether the site’s authors are acting in accord with the basic decency of civilized society and deserve our continued patronage.  And, oh yeah, their advertisers, who could, in theory, get frightened off by increasingly aggressive attacks on ESPN business people, thus leaving the authors of such site in search of funding for their, you know, paychecks. 

After all, even when the law might not offer a remedy, a remedy is often available just the same.  Your call Deadspin readers.

12am

Hooray for me...

Here is an excerpt from my last column in the Connecticut Law Tribune:

Here is my hypothesis. You take it out into the world, make your own observations if you haven’t already, and see if you think I’m right. Smartphones allow us to work more and work longer, but in many ways they diminish our humanity, and create a tension in our professional lives that is antithetical to our most important obligations as attorneys…

Above all else, it seems to me that the most important aspects of good lawyering are effective client communication, and concentration, and I wonder if smartphones impair, more than enhance, our capacity for both. The nature of a smartphone is that it relentlessly delivers information to its owner, constantly pulling that person’s focus willy-nilly in any number of different directions. Over the course of a few hours I find that the barrage of information from so many sources can create a cumulative, frenetic energy akin to downing a few cups of coffee in quick succession, making it all but impossible to concentrate on anything – particularly if I am, indeed, simultaneously downing several cups of coffee.

What do you think? 

My next column will, I believe, be in the Trib next week, and I have a feeling it will make certain college and university presidents a bit uncomfortable.  Stay tuned. 

By the way, you can follow me on Twitter right here.

Hey, most importantly, hooray for you, thanks for your support: I appreciate it.

5pm

Dead on...

I received a fascinating email from a reader - we’ll call him “Ford” - a 2008 law school grad, in response to my Counterintuitivosity post, here’s the gist of it:

As a recent graduate I find that a number of my colleagues and former classmates would actually still encourage law school for three reasons:
1. They believe it when people tell them that law school (or other
higher education debt) is good debt (positively impacts credit score
rather than negatively impacts).
2. They have been sold on the idea (as I was when I attended school) that a law degree will increase earning potential even in fields where you’re not practicing law, simply because it’s a higher degree.
3. College students and other potential applicants have repeatedly
told me they expect the legal service field to “bounce back” in 2011.
I’m hearing that same year from a lot of people and I don’t know why, but I’m hearing it from friends in California, Michigan, and New York. Some even believe that if it doesn’t, the ABA’s encouragement/support of debt mitigating policies will allow them to get a degree at a deep discount or free.

Let’s go through those points one at a time.  First of all, I don’t believe there is any such thing as “good debt” - debt is debt no matter how you slice it, and if you can’t pay it down and eventually pay it off, if it follows you around for years and diminishes your quality of life in so many ways you can’t even imagine. 

Second, I, like Ford, was sold on the idea that law school is a good choice even if you aren’t necessarily going to practice law: you can do anything with a law degree!  While that might be true for a small group of people - I’ve never met one - most of us take the first job we can find in the law and not only are we unable to ever break free of a career in the law, we are still practicing in the same practice area 20 years after taking that first job, like it or not: the law is very nichey. 

As for the idea that the legal services industry will bounce back by 2011, I tend to agree, although I think it will be a significantly smaller business than it was three or four years ago, and will be decentralized, i.e. many more lawyers than ever before will be practicing in small firms or on their own. 

But, as Ford points out, the law schools won’t suffer for any of this:

There have also been studies pertaining to gambling behaviors in
Americans.  People are more willing to gamble (in this case, apply to
and attend law school) when presented with a potentially huge payout, even if it’s stated clearly and plainly that they have a minimal chance to win.

The great irony?  The ”payout” isn’t anything great anymore in most instances.  When you add up the hours and the stress and the terrible commutes, put them in the adding machine with the diminished salaries and bonuses and most of us make about $11 an hour.

Welcome to the machine grads, have fun.  

(Thanks to Ford, may all of my readers be as thoughtful.)  

10pm

Like no other bagel in the world...

New York Magazine reports that the owner of H&H Bagels - my personal fave bagel ever - has been indicted on tax fraud charges and faces a maximum sentence of 15 years in prison and $1 million in fines:

It seems it wasn’t a case of absentmindedness, since [Helmer] Toro is said to have set up six different shell companies in order to keep his unemployment insurance costs down.

If the allegations are true, why would a guy like this, presumably very rich, risk everything to save $370K in payroll withholdings?  Bad legal advice?

It just doesn’t seem sensible to me.

11pm

That pesky 6 percent...

To ooohs and aaahhhs, Harry Reid unveiled the ”historic” Senate health care reform bill this evening:

The Democrat’s $849 billion measure is designed to remake the nation’s health care system, relying on cuts in future Medicare spending to cover costs — as well as on higher payroll taxes for the well-to-do and a new levy on patients undergoing elective cosmetic surgery.

Alas, a bit of a snag: we’re cutting Medicare, taxing the rich and the vain and yet somehow we still can’t get 100% of Americans insured: 6% of us will still be without insurance if the Senate bill is passed into law as is.  I don’t know how you justify spending nearly a trillion dollars on health care reform and come up 6% short.

And, as if all of that weren’t enough, there is this wonderful nugget:

He also included a tax on high-value insurance policies, meant to curb the appetite for expensive care.

Why, in the United States of America would our legislators feel it necessary to attempt to “curb the appetite” for really good health care rendered by the best doctors?  Why would that be something that legislators would intend to eradicate? 

None of this makes any sense to me at all.  I’m at a complete loss.

How about you?

10pm

All roads lead back to Dad...

Why would a man build a house around a 250 ton bluestone boulder?  Because he told his father he would:

One of [John Carson’s] least favorite things is discussing money. How much it cost to build his glass-and-copper-faced house, which took four years to construct, he will not say. He is happy, however, to discuss his dreams for the house, which go back to a walk he and his father took in the Allegheny Mountains of Pennsylvania, in search of a Christmas tree, when Mr. Carson was a boy.

“We had to walk past a creek and up into an area with a barn that probably hadn’t been used for 50 years,” Mr. Carson says. It “had fallen, dilapidated, over a huge face cliff. I was about 7 years old and I said, ‘Pop, some day I’m gonna build a house and the fourth wall is gonna be a rock.’ I looked for that rock for 40 years.”

Somehow it makes absolutely perfect sense to me. 

9pm

Counterintuitivosity...

I find this rather fascinating, from moststronglysupported.com:

On September 26th, more students took the Law School Admissions Test (LSAT) than have ever taken a single administration of the LSAT in the history of the exam. Chalk it up to the recession, the economy, or the sudden increase in all things vampire…

As the economy foundered, the number of LSAT takers began to increase again, with June 2009 constituting the single largest June administration in the history of the LSAT. June and September 2009 combined represent 13,681 more tests administered over the previous year, or an increase of 17%.

I would have predicted just the opposite if asked - why in the world would a college graduate take the LSAT, knowing that the legal services industry has been violently contracting for some time and is likely to continue doing so indefinitely?  How, in light of the current situation, could a person justify incurring so much more student loan debt over the next three years after watching the carnage of the last 18 months? 

I’m guessing that two factors are at work, the first being that many more recent college grads are unemployed and figure, hey why not, what do I have to lose by taking the test, let’s see how it goes - many of those sort of whimsical test takers will likely not even fill out an application no less attend a law school.  The other factor at work is probably good old human nature: I won’t be one of those people who graduates in the middle of my class from law school, I’ll work really hard and get a rockin’ job when I graduate, I’m one of the smart ones.  (Cue the ominous music…)

In any case, the piece that accompanies the stats is a good read, check it out. 

11pm