November 27th, 2013

Happy Thanksgiving

Two years ago at this time I wished one and all a Happy Thanksgiving as I celebrated my fifth year blogging. And I dressed up in a turkey suit for a local race.

I’m now past my seventh year as a blogger, and I still do the turkey costume for the race. And if you want to read why, you can click on that link I just provided.

I make only one request for Thanksgiving Day. Please try to spend it with friends and family, and not digital devices unless you’re using that phone function that many of them seem to have, to talk with important people in your life that couldn’t be with you.

And stay out of the stores. If you are foolish enough to go on Friday, don’t say you weren’t warned about the dangers.

Happy Thanksgiving one and all. May it be safe and festive, and may you give some thought to those who are not as well off as you likely are if you have the modest means needed to read this little blog.

 

November 25th, 2013

Who Will Be Injured On Thanksgiving Friday?

wal-mart-789124It happens every year like clock-work. The pleasant Friday after Thanksgiving gets turned into a commercial “holiday” as stores try to engineer a great rush on their front doors for the TV cameras.

A few high profile loss leaders for sale, lots of crowds, and free publicity.

Except that stores generally suck at crowd control, unless they are owned by Apple. And having engineered this wretched experience, some stores get more than they wished for as too-big-to-handle crowds show up.

I’ve written about this before, when a worker was killed in a Wal-Mart stampede.

The race by retailers to pull people away from their families with this nonsense has now extended to some stores forcing employees to forego the actual Thanksgiving holiday and come in and open the stores on that day. It’s a Thanksgiving celebration with no Thanksgiving.

My best hope is that, come next week, I get to say “I was wrong” with regard to the injuries, instead of “I told you so.” Sometimes I like being wrong.

Updated: Walmart chaos.

 

November 18th, 2013

Abe Lincoln, Jack Kennedy and Lawyering

Abraham-Lincoln-Trial-LawyerThis is a big week for anniversaries. On Friday it is 50 years since John F. Kennedy was assassinated in Dallas. And tomorrow is 150 years since Abraham Lincoln delivered his two-minute long Gettysburg address, in a scant 270 words or so, which I wrote about three years ago.

Lincoln left behind on that Gettysburg battlefield some of the most memorable language that we have regarding the future of our democracy, “whether that nation, or any nation so conceived, and so dedicated, can long endure.” He thought it important for the nation to resolve  “that government of the people, by the people, for the people, shall not perish from the earth.”

On the day Lincoln spoke for just a few minutes, so too did Edward Everett a noted politician of the day. He spoke for over two hours. Nobody quotes Everett.

One thing that Lincoln and Kennedy both left behind was the simple power of their words, in that they were able to enrich broader concepts. A simple search of quotes on Kennedy turns up these well-known words, and much more:

  • My fellow Americans, ask not what your country can do for you, ask what you can do for your country.
  • Let us not seek the Republican answer or the Democratic answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept our own responsibility for the future.
  • Things do not happen. Things are made to happen.
  • Mankind must put an end to war before war puts an end to mankind.

This leaves us with a few questions:

  1. What words are you using to communicate, and how many do you really need?
  2. What are you doing today that will cause people to remember you after you’re gone?
  3. What are other people doing in your name?

 

November 14th, 2013

Linda Greenhouse and Me

greenhouse-contributor-popup-v3

Linda Greenhouse via New York Times

Sometimes when I write things slightly out of my wheelhouse I get a bit concerned about mucking things up and making a fool of myself. This is especially true if I’m writing about the United States Supreme Court and noting something that others didn’t feel worthy of comment.

And today I got confirmation about whether I made myself a fool. I didn’t. And not only didn’t I muck it up, but New York Times columnist and Supreme Court diva Linda Greenhouse agrees with me. Whew.

Last week I noted a statement by Chief Justice John Roberts in the matter of Marek v. Lane, which was a class action settlement involving Facebook. Instead of settlement money going to Facebook users, it went into a new fund dedicated to educating people about privacy on the Internet. These are known as cy pres settlements, meaning that due to the problems of distributing funds, this arrangement is “as near as possible” to doing just that. That is the theory.

My point was that C.J. Roberts was being rather activist in his statement, as the questions he asked about these types of settlements are those best addressed by a legislature. Roberts,  however, was asking litigants to bring him a case so that the court could address the issues that he identified.

And today Linda Greenhouse hits just that point, in a piece entitled “Bring Me A Case,” linking together several unrelated matters where various federal judges have all said, bring me a case.

With regards to Marek v. Lane, Greenhouse writes:

While this particular appeal presented too narrow a slice of the “more fundamental concerns” about this increasingly popular kind of settlement, the chief justice said, “in a suitable case, the court may need to clarify the limits on the use of such remedies.” Citing a law review article that criticized such settlements as among the “pathologies of the modern class action,” he posed six questions, ending with “and so on,” which implied that there was quite a bit more that he wanted to know.

Judicial activism can take many forms, and one way is to call for a particular kind of case in order to “feed the docket,” which I’m pretty sure is not what Roberts had in mind when he testified at his confirmation hearing that the justices were merely umpires in disputes — that they are there “to call balls and strikes and not to pitch or bat.”

As Greenhouse then writes:

[N]o one is accusing Chief Justice Roberts of any kind of ethical violation in issuing his invitation to bring the Supreme Court another challenge to the newfangled species of class-action settlement that he finds troubling. Nor am I suggesting that his statement was in any way improper. But it sheds light on an underappreciated aspect of the court’s institutional behavior, on what one might call the care and feeding of the docket.

The court is an active participant in shaping its own destiny through a continuing dialogue with a legal system attuned to its every nuance and primed to respond accordingly. The court’s role in this respect might be seen as closer to legislative than judicial; one federal judge I spoke with this week said the chief justice, with his list of questions about class-action remedies, sounded like the chairman of the Senate Judiciary Committee convening a hearing. (emphasis added)

Now I’m not so horribly vain as to think my little posting about this last week caught Greenhouse’s attention, even though I wrote language almost identical to her theme:

This call to action (‘Send me a good case so we can put our imprimatur on the issue!’),  goes quite a ways away from merely umpiring for the people on different sides of an issue.

The fact is, my blog wasn’t mentioned anywhere, nor linked to, nor was the post even tweeted about. I simply published it and it died on the spot.

But I’m gratified to see that the issue is now front and center. The idea that Roberts espoused, that he is there merely as an umpire, is belied by his call for a case and the legislative-like questions that he both asked and wanted to answer in a subsequent opinion.

 

November 12th, 2013

Running, Lawyering and The Great Stage

Collins-Stops-843x1024I’m going to weave together six different stories today, some dealing with running, some with lawyering, but all leading to the same place. Trust me on this, I have a point to make.

We start on October 6th at the finish line of the Paine to Pain Trail Half Marathon, where Matt Collins — a person you’ve never heard of, and in a story that’s never appeared anyplace but a blog —  stopped dead in his tracks just steps from the finish line. And he waited for #2 and #3 to pass him before he walked across the finish line. It seemed that the guy who ultimately won had taken a wrong turn in the woods and was followed by #2. Collins was 3rd at the time, called them back as he took the lead, and then waited at the finish for the other guys to finish ahead of him.

On a very popular running forum, Collins was excoriated by some for not having grabbed first place. But this is not a race with a cash prize; people run for fun, health and personal glory. He didn’t feel like he deserved it as he wasn’t the fastest runner that day, and that was good enough for him. While the stage was rather small given the number of onlookers, a few people appreciated this act of extraordinary sportsmanship.

Move on to story 2 and the NYC Marathon — a vastly bigger stage — and another runner you’ve have never heard of, Mike Cassidy. He’s what we call a “sub-elite.” He’ll blow the socks off you in any regional race, but isn’t Olympic caliber. He’s not the guy who gets the sponsorships. That would be a guy like his hero, Meb Keflezighi  – 2004 Olympic silver medalist and 2009 winner of the NYC Marathon.

Meb — he’s always just Meb — was having an off day due to a series of injuries.  And when elite athletes have an off day they usually just drop out so that they can come back sooner in another race and not risk further injury. But Meb kept going.  And Cassidy caught up to his hero three miles before the dramatic Central Park finish.

Cassidy-KeflezighiR-NYCmar13Look at the picture to your left. As Cassidy recounts in extraordinary race report:

This is the type of moment you only dream about. The scene had played out in my mind countless times before: me, having the race of my life, gracefully passing Meb in Central Park en route to a stunning victory. It’s one of those wild fantasies that get you through the solitary 7 am 10 milers.

As I eased up on his shoulder, I looked over and said, “Let’s go Meb.”

He responded, promptly picking up his pace and we entered Central Park at 90th Street, shoulder to shoulder. The next three miles were the most surreal I have ever experienced.  “Let’s finish this together,” he said.

In recounting the experience of running with Meb through the closing miles, jammed with screaming fans, he said:

It was like getting to play basketball with Michael Jordan. Only it was Game 7 of the NBA Finals and he had just passed me the ball.

Why did Meb keep going?  Once more from Cassidy’s amazing write-up:

It was readily apparent that all the stories I’d heard about Meb’s remarkable attitude were true.

As we entered Central Park at Columbus Circle, I turned to Meb and told him as much. “It’s an honor to run with you,” I said.

His response is something I’ll never forget.

“No,” he said. “Today is not about us. It’s about representing New York. It’s about representing Boston. It’s about representing the USA and doing something positive for our sport. We will finish this race holding hands.”

Meb knew. People were watching.

Now story 3, we turn to lawyering and back to the smaller stage. Last week I wrote about the death of the anonymous Editor of Blawg Review, who everyone knew simply as Ed. Ed. worked behind the scenes. He was known, at least in this digital incarnation, only to a group of law bloggers and some of their readers. But he influenced us and how we wrote, and created a forum in which to celebrate quality, and not the marketing pablum that some try to pass off as blogging. Ed. was respected for what he was doing in his Blawg Review project, as is evident from all the stories posthumously written about him. People were watching.

Now story 4: I wrote in unflattering terms the other day about the tactics a lawyer used when suing Red Bull for $85M, in a case dealing with the death of someone that drank the stuff while playing basketball. I was less than charmed about his decision to place a monetary amount in the complaint when that tactic is not permitted in New York. The headlines all dealt with the money, instead of dealing with the safety of the product. And when we talk about newspaper headlines, we are most assuredly back on the big stage. People were watching.

Child's eyesStory 5: It came across social media like so many other viral videos do, this one dealing with how children reacted to same-sex marriage, by having them watch various same-sex marriage proposals. Everyone wanted to see how kids react. It’s been viewed, so far, over seven million times.

But if you thought about it, it wasn’t really about the kids. It was about the parents, because kids mostly just mirror what the parental units do and say. If kids are accepting, you can bet the parents are also. If a kid is a raging bigot — regardless of whether it’s about sexual orientation, race or religion — you can place a pretty good bet where it came from. The stage inside your home is as small as it gets. But the kids are watching.

Story 6: I tried a case in September, and every so often a lawyer or two would filter in and out of the courtroom on unrelated business. Last week I got a call from one of them who’d seen one particular cross-exam, and he wanted a copy of the transcript to use to teach a class of students. An audience of one just grew. Someone was watching, other than those required to do so.

The Point: We don’t always know how big our audience is: It may be a few people standing around a finish line, or jammed sidewalks and national television for the  NYC Marathon, or newspaper readers or “just” our kids. But people are always watching and listening (and I don’t just mean the NSA — “the only part of government that actually listens“).

When I select juries, I know that whatever opinions the 30 people sitting in the room  are going to form about lawyers will be directly impacted by the few things they hear from us. In doing so, I am always confronted by the entrenched attitudes some folks have because of the conduct of lawyers and news stories that came before.

We cannot view our conduct in isolation as it oft times impacts others.

This is something to think about with each bit of marketing a lawyer does, with every interaction with a client or potential client, and any interaction with the press. People are watching. And listening. And it matters.