b-rate me!

Scales-of-justice streetlight at the RJC

After over two decades of flying under the radar of Martindale-Hubbell, I have received my first peer review rating. In order to display the service mark of the ratings indicating that I have been bestowed a rating, I would have to execute this horrendous acknowledgement. Presumably, everytime I display the service mark. Hm. This shows signs of promise. They do say I can use it on a "lawyer home page." Interestingly enough, I can indicate that I have a rating, but I can't tell you the reader, because you might not be a lawyer, what that rating is. Notice that I have not done so. I also have to tell you this:

"The Martindale-Hubbell Peer Review Icon is a service mark of Reed Elsevier Properties Inc., used under permission from Reed Elsevier Properties Inc. in accord with the terms and conditions established by Martindale-Hubbell."

in order to show you this:

I have never been asked to provide rating information on another lawyer, nor did I personally request this rating. It looks like they have Field Representatives to do their scouting.

Too strange.


street cred

The courtroom is a world where telling the truth can be a Machiavellian strategic move.

My client was being cross-examined today on a minor point, using his bank records to establish an embarrassing expense. My learned colleague asked my guy to admit that he began incurring this expense in May 2004, which he did readily.

After my client was safely and completely off the stand, I noticed that the bank records actually established that the minor but embarrassing expense began in March 2004. Neither my client nor the OC had noticed this.

I immediately insisted that I disclose to the court the earlier date. In fact, I stood up and offered a stipulation to "correct the record."

Now, when OC started flogging this expense later, and exclaiming about the earlier date, I leaned back, believing that my client was immunized from harm on this point.

As I read my state's Rules of Professional Conduct, this disclosure was technically unnecessary because the fact was not material.

However. I determined this only after the fact. In my world, my credibility is always material. And there is a relationship, although it is not direct, between my client's credibility and mine.

Update: When I checked my horoscope for today after dragging myself home, it said:
"Today is a 7 - You're gaining respect, even from people who don't agree with you. This is because you stand up for your principles. You have some good ones."

Well. There you have it.


client better behavior wheel

With a few minor modifications, this shows signs of promise.

trial skill sets

A better view of the RJC, through its garden in the front.

It is striking to me how much different the process of eliciting direct examination answers is from eliciting cross-exam answers. Because the product, ideally, should look and sound much different, the process of its creation is or should be different.

In direct examination, I set my ego aside (yes, it can be done). The witness becomes the star, and I fade into the background. If I can get my witness to feel like he or she is having a conversation with me, and show traces of actual personality (difficult in the highly stylized world of the courtroom), my work is done.

The best description I have ever read of the process of prepping a witness was written by a layperson:

And so I learned about the wide gulf that separates the facts from the truth. Rader and I had a dozen similar conferences over the next five months. "Preparing testimony," it was called. WIth each session, my admration for Rader's legal skills increased. * * * I was fascinated by the testimony that was produced by our Socratic dialogues. Rader had it all written on yellow legal tablets, and I observed that no one word of it was perjured. There were qualifying phrases here and there . . . but there wasn't a single lie in it. And yet it wasn't the truth.


my litigation trifecta

In the last month I have been in trial in three different courthouses in King County where Superior Court trials are conducted. The lousy photograph above is the backside of the Regional Justice Center in Kent. It has lovely artwork inside, and it was a lovely day. Possibly one more day of trial on Monday.


fred's trailer?

First inkjet faxes, now this. Scroll down, I'm towards the bottom. Image maintenance is so difficult over the Internet.

faust and the buddha

For light reading while I have been in trial I have been reading Mark Epstein's Open to Desire, which is a book arguing that a close reading of Freud and the Buddha on desire (of all sorts) supports a proposition that desire is good, in contrast to conventional Western AND Eastern religious thought that desire is bad and renunciation the path to salvation.

That's a pretty quick summary of the book, but my purpose here is not to review the book but reflect on whether the distinction between desire and craving might be a valid one.

As I understand Buddhist thought, particularly as described by Epstein, the ability to tolerate unsatisfied desire, and the ability to tolerate the disappointment one feels following the satisfaction of desire, can constitute the path to enlightenment. Epstein advocates applying mindfulness and equanimity to desire in the same way that one applies them to any other object of meditation.

And that makes sense, because the object of contemplation is ultimately the world. One can crave the world, or one can reject the world, but the Middle Way--the hardest--is to enjoy the world, and then to let it go.

And that put me in mind of Faust.

My recollection of Goethe's version of the story of Faust, which I've never really liked, is that Mephistopheles and Faust make a bet that Faust can never be presented with an event in life that makes him say, "Oh, moment, stay! You are so fair!" My recollection was that Faust says this as an old man when he catches sight of Gretchen, but that Gretchen ends up redeeming him in the way of many old stories.

The truth about the Faust story is more interesting, although hopelessly muddled (talk about your loose baggy monsters). Faust never does reach the point, it appears, where he utters that statement.

My question, upon reflecting on this story, is: using Epstein's analysis, were Faust to say, "Oh, moment, stay!" would he be experiencing craving, at that point? Or would he merely (I say ironically) be fully experiencing desire? And does an attitude of "appreciative joy," or mudita, counteract craving? Is mudita, therefore, an aspect of desire?

More to the point: in composing an email tonight I inadvertently wrote "persistent meditative state" when I meant "persistent vegetative state." Perhaps it's time to go to bed.


what's the big idea?

Here's a presentation coach who writes about identifying the Big Idea for your presentation in a way that is readily applicable to trial practice.

I think it's a bad idea to go trial with a Big Idea that boils down to "Mom Bad, Dad Good" or "Dad Bad, Mom Good" as the case may be, but some of my opponents' thinking doesn't appear to get much beyond this.


now this is truly strange

A webpage called Goddess of Fax Machines has linked itself to my blog.

What I find strange is that the link implies that I might be a goddess of inkjet fax machines. I won't go quite so far as to say that I find this insulting. Anyone who knows me, however, will confirm that my heart belongs to Laserjet.


appealing to the brat in me

The local New Age tabloid has an article about Radical Honesty as espoused by the inimitable Brad Blanton. Blanton is self-described as "white trash with a Ph.D" (U. Tex, 1965--we're not talking about Summit University here, folks).

To be honest, this concept fascinates me. Blanton says:

You can't be "secretly" honest. Being "honest with yourself" is simply not separable from being honest with another. A person who says, "I was honest with myself, but decided not to tell..." is just another miserable liar and will have to suffer the consequences. Sharing honestly, with others present, is the way we can have an authentic relationship with another person.

Blanton believes that " the best way to reduce stress, make life work, and heal the past" is to tell the truth. Of course, telling the truth can reduce one's own stress but increase someone else's, and you may end up making your own work at the expense of another. I wonder if Radical Honesty fans function in society as enfants terrible, happily leaving destruction and suffering their wake. There is further a difference (to be fair it's one that Blanton himself draws) between honesty and what I might call "vicious venting."

My experience with many years of actually saying what I think is that, even when people are paying me a princely sum in order to ask me what I think, they don't seem to be able to hear it. Some of the most difficult moments I have had in my career have been situations in which I have told clients that they wanted me to take positions that I felt had no merit and that therefore they had to find themselves new counsel. I've probably shocked a few people by handing them their money back, but lawyers are not for sale as much as the general public thinks.

Go ahead. Ask me what I think. But for Heaven's sake, don't argue with me when I answer. I will be honest.



zen and the art of superscalar maintenance

In this month's issue of the ABA Journal, Steven Keeva addresses "A Meditative Perspective" in a how-I-spent-my-summer-vacation article on a lawyers' meditation retreat at Spirit Rock. This would be a little too far afield for me; my usual stomping ground is Cloud Mountain.

The best thing about this superficial article was a reference to Dennis Warren, a Sacramento-based lawyer who has thought deeply about stress and performance. Here's a quote I pulled out from that link:

We are frequently unable to control the way our cases develop or their outcomes. But we always have the ability to choose how we respond to these developments, rather than merely reacting automatically and unconsciously. If we can make conscious and skillful judgments and choices, rather than mechanically responding from habit and emotion, the results will naturally take care of themselves.

I suppose Keeva is trying to educate the unmindful lawyerly masses about basic concepts of meditation, but the article failed to satisfy me.

I was chatting today with an expert witness who happens to be a psychologist and found myself struck by the peculiar insight that litigation practice encourages living in the future--monitoring deadlines--and not the present moment. He thought was pretty funny that being in the present moment could detract from the practice of law. I haven't decided yet whether technology returns me to the present or plants me even more firmly in the immediate future, so that I am always slightly ahead of myself. In either case, however, I strive always to make conscious and skillful judgments and choices, no matter the pain that inheres in a situation.

advanced time matters

Today's cheesy artwork emerges from TimeMatters's internal workings, picked up by Picasa's scan of my entire hard drive.

TimeMatters has a feature that I've been mulling over for the last eighteen months or so. No need to rush into these things. Actually, it's two phone features: the first is an autodialer for any phone number entered into the DB. Just click on the little telephone icon next to the phone field and away she goes. It can also be configured to pop up a new Phone Form with timer running to make it easier for me to take electronic notes on all my phone conversations.

The second phone feature is a bit more complex. When an external call is transferred to me from our switchboard, Caller ID information displays briefly. There is said to be a way to get TimeMatters to capture the Caller ID information in DDE form, match the phone number with the phone number string and, if there is a match, pop up a new phone form with the Contact name and, if one is associated, the Matter name already filled in and that magical timer running.

That at least is the theory. The practice is that I had two phone guys at my desk for about four hours the day before yesterday, and they couldn't get either direction of this alleged productivity enhancement up and consistently running. I have over seven hundred bucks invested in telephone guy time, a bunch of zip files and folders all over my computer desktop, and nothing to show for it so far.

But it sounded like such a good idea.


why i hate voicemail

You can't sort it. You have to listen to it sequentially, and consequently you can't listen to the most important first.

Also, for some reason people are more prone to leave me multiple voicemails with the same content than they are prone to send multiple emails.


guest post by the god of positronic law practice management

I liked this post so much that I'm reproducing it here. My friend the God of Positronic Law Practice Management thinks the way I do about computers (only more deeply).

"Want to play with your computer? All the latest & greatest hardware & software? Why not? I would rather putter in my garden myself, but diff'rnt strokes for diff'rnt folks. Just do all this on your PLAY computer.

Do your work on your WORK computer.

KISS -- Keep It Simple, Saluki. Avoid the bells & whistles, the latest & greatest, all the cool stuff that tells your fellow geeks: I am a cool guy. I overclock my CPU, I use multiple boots so I can run different flavors of Linux, I download all the latest patches & fixes whether I need them or not . . . and I spend hours every week on the phone waiting for technical support to pick up.

Regard your work system as what it is: a tool to make money. Nothing more, nothing less.

Stay a couple years behind the times with your software. Go with the Goliaths in their product lines, not the Davids. Regard Microsoft as the Borg (resistance is futile), 'cause they are.

Attach only the peripherals that you actually need. Load only the software you actually need.

Spend your time as a lawyer, not as an unpaid IT guy.

America OnLine automatically zips my files when I attach two or more of them, and then just as seamlessly unzips them for me when I download them. AOL makes everything just as easy, including tinkering with the free website I get with my membership, which brings in such an already high & increasing share of my revenues that I'm phasing out yellow pages ads.

In short: use only what you need, choose mature & stable technologies, stay in the middle of the road, avoid situations which typically cause conflicts & incompatibilities. One of my friends calls me "the king of the one-finger drivers," 'cause I likes to Cadillac down funky broadway with the radio on & a cool breeze in my hair. Feel the alpha wave cosmic flux & go with it.

To an amazing extent, Windows, AOL, Quicken, MS Word, & FamilySoft do it all for me. The only product area where I've gone deep is security. I also have a few 3rd party utilities & applets, such as my clipboard extender that I use all the time, and I also like Firefox. I'm using Norton's virusware until my free update subscription runs out, then I'm switching to McAfee, which is free with AOL & signature updates are totally under-the-hood.

I always go very deep on RAM & hard-drive space, & hit the market sweet-spot for CPU, & I treat myself to a nice monitor, 'cause that's a quality of life issue. And I'm totally OK with replacing my 'puters every time Windows gets a major upgrade.

Example of the Positronic Way of Geekery in action; I bought [my son] a state-of-the-art gamer from Gateway; the tech who set it up practically came in his pants. After a decent interval, [my son] managed to goof it up so badly it wouldn't boot.

Could I have fixed it? Sure. But wouldn't it be cheaper to work & earn income than to spend who-knows-how-many hours fixing it? Yup. So that's what I did, but he got only an OK Dell this time. He's happy, I'm happy, Dell's happy."


just wondering

With all the concern regarding identity theft nowadays, why is it that the online edition of Martindale-Hubbell still lists the date of birth of just about every lawyer in the country?

now that's free exercise

Religious freedom gives rise to thirty-two children. And although it's a good question whether a state could prosecute multiple spiritual marriage as bigamy, brief research suggests that adultery can be prosecuted in Utah as a Class B misdemeanor, and this conduct appears to fit that definition.

Utah definitely seems like a foreign country at times.


conflicting values

Both the time-pressure-reduction movement and the Getting-Things-Done implementation movement have major beachheads (other beachhead here) in the wired city of Seattle.

A concidence? I think not. These ideas rest on a continuum.

There is a point at which it is clear that maximum efficiency has been reached, and no matter how carefully your folders are labeled, you simply cannot add a twenty-fifth hour to the day. You turn a corner. A parent dies. A child dies. You stop. You take a ragged breath. And another.

Then, and only then, will you pick up your high-tech tools with the same respect that Platon Karataev accorded his scythe, because, like him, you know that, in the long run, you too must set them down.

Entropy will win. Be selective of about what you embrace.

i'm grateful...

that I can figure out a way to do this absolutely free.

I like the cloth-textured background of this website.

so nobody's perfect

It has been suggested that I have been a tad harsh on the hapless dean of my law school (the website of which, by the way, was down today, although the main site of the university was not). I acknowledge that. It is time for me to admit that I once accidentally posted a death threat on a statewide mailing list of lawyers.

Okay, it wasn't a real death threat. The episode, shall we say, involved someone who went away on vacation and left his autoresponder to reply to his emails. There was some reason that I no longer recall why the list owner wasn't able to set the fellow on no-mail until his staff could be reached or he came back from vacation. After several days of autoreplies, I wrote an email with the subject "[So-and-So] Must Die," which of course is a reference to the Traffic classic "John Barleycorn Must Die."

Here's the stupid part. I sent my email to the mailing list that the poor blighter was autoresponding to. The message was actually meant for another destination entirely. I did, however, receive several private messages of appreciation of my sentiments.

That was probably about three years ago. And I haven't done anything like that since. Why keep making the same mistakes when there are always new ones to make?


too dumb to be trusted with email?

The current dean of my law school published an editorial in today's New York Sun (subscription required if you want to read the damn thing), a curious choice for a bully pulpit if you ask me. As the dean says, "In a documentary
called 'Columbia Unbecoming,' a number of college students allege that they do not feel free to question the anti-Israel assertions of a group of tenured and untenured teachers in the Department of Middle East and Asian Languages and Cultures, or MEALAC; the students say they feel intimidated, such that the classroom has become a hostile environment where their views are unwelcome." Clearly a public relations disaster. I can see why he wanted to engage in damage control.

Then the dean did what sounds like an innocent thing. He sent an email to all graduates, that is, alumni and alumnae, of Columbia Law School, with the entire editorial embedded in the email. In fact, I assume that the reason he reprinted his entire editorial in the email is that putting a link in the email wouldn't work because of the Sun's subscription requirement for Web access.

Perhaps you technology-weary can guess what happened next. Among the hard-working graduates of CLS were several lucky souls who were on vacation and had turned on out-of-office autoreply messages. Now, I just located the original message and hit "reply" (without sending, mind you!) to see how a return email would be addressed. It appears that, if one uses "reply" and not "reply all" that responses should go only to the sender. For some reason, however, those autoreplies, once they went back to the dean, were forwarded to the list. As were all the responses by all the people who became increasingly shrill as they received more and more and more email in response to the initial demands for removal.

Okay, let's analyze what apparently happened here.

(1) the dean either didn't know to ask, or didn't think to ask, how his "email blast" list was configured. He should have been the only person with posting privileges; in other words, since none of us asked to be on an interactive CLS mailing list, it should have been configured as "announcement only";

(2) a few folks were rash enough to use out-of-office autoreply messages in their software, which I put on a par with clipping one's toenails in a subway car;

(3) finally, when the "echo" phenomenon became evident, which was very soon after the initial email blast, people didn't have the self-control, or perhaps the understanding, to keep quiet and just...use...the...delete...key.

Which is why I came home tonight and discovered sixty-plus law-school related emails in my home inbox ::shudders delicately::.

So now the hapless dean has created a separate public relations disaster among graduates of CLS to add to his academic freedom problem. He has, however, also performed a valuable public service by identifying three classes of people who should have their email privileges taken away.

Mind you, I have no strong feelings about this issue.

can a goddess perform marriage ceremonies?

This question arises because, only a month after incorporating the dark goddess of replevin as a corporation sole (see below), I have been asked to perform a wedding ceremony. I'm delighted, of course, but I take such a responsibility seriously. So I checked to see if this power was, in fact, one consequence of my new corporate identity.

First, there aren't many formal requirements for a ceremony. In the solemnization of marriage no particular form is required, except that the parties thereto shall assent or declare in the presence of the minister, priest or judicial officer solemnizing the same, and in the presence of at least two attending witnesses, that they take each other to be husband and wife. RCW 26.04.070. There's also a form I have to file in two places. Research reveals that in Washington state, any regularly licensed or ordained minister or any priest of any church or religious denomination has the power to perform marriage ceremonies. Hm. Am I "regularly licensed or ordained"? Am I "a priest[ess] of a * * * religious denomination"? Um, well, yes, but I kind of appointed myself.

For the state of Washington to make a determination that my action wasn't sufficiently "religious," however, would turn into a huge Free Exercise problem even under the federal constitution. Washington state's constitution has an unusually broad Free Exercise Clause: "Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state." (There's more as we hunker down into the state's Establishment Clause, but not germane to my point.)

In addition, the authority of the officiating officer at the marriage and all other prerequisites to a valid marriage shall be presumed in absence of evidence to the contrary. Summerville v. Summerville, 31 Wash. 411, 72 P. 84 (1903). Fortunately, I don't have to worry about ecclesiastical malpractice. As long as I say I am a minister or priest[ess], the marriage is valid as long as one of the parties believes me. This statute would elimate one of the major plotlines in the romance novels I used to read while travelling on trains. The only reported case I could find on this issue was from 1909, in which an "Indian chief" who was a Presbyterian, although apparently not a minister, was assumed to have the authority to marry people. Weatherall v. Weatherall, 56 Wash. 344, 105 P. 822 (1909). Moreover, the state of Washington was asked its opinion about this matter in 1971, and basically ducked the question, or at least came to the same conclusion that I did, which is that if I cobble together a philosophy and consider it my personal religion, the state has no business crying bullshit on me. After all, as John H. Bright, Assistant Attorney General of the State of Washington concluded in 1971, "the more important thing in a marriage is the capacity and intent of the parties thereto" and not the credentials of the individual signing the marriage license. Isn't that really the most sensible way to look at this issue?

I do, however, have to worry about a hundred dollar fine (or up to five hundred bucks if I really tick the judge off) if I purport to be able to perform valid marriages when I can't.

But wait. If the marriage I perform is valid regardless, when would such a fine ever be levied? In more analytical terms, doesn't apparent authority create actual authority in this area? This stuff is making my head hurt.

Because marriage in the state of Washington is regulated purely as a civil contract, and the ecclesiastical aspects are left to the various churches, I don't think my credentials matter. I speculate that the requirement that ceremonies be perfomed either by judges or ministers was originally imposed so that relatively reliable people would be in charge of watching out for octagenarians trying to marry children, first cousins marrying one another, and intoxicated people tying the knot improvidently. As a divorce lawyer, I actually have pretty good credentials for assessing whether a proposed marriage would be invalid, and as a mother I would certainly never perform a marriage ceremony for a child.

All in all, however, working the seam between church and state continues to be a very tricky business.

i could have told them this

Law firms need a more feminine lawyering style.


from my inbox

Cingular Wireless has sent me a letter telling me that I "have only 1 line of service on a Shared Plan."

I know that this is incorrect because it took me four painful hours to convert my phone service for the Treo and the rest of the family phones, so I called the company with some trepidation.

Well, thank God that I did. I discovered that a fourth line, in the name of some fellow I have never heard of before with an area code associated with cellular phones and pagers in New York City, has been added to my phone service.

I am on hold now. Of course I have been shrilly insisting that they remove this man from my phone service, and the poor service rep keeps popping back on the line saying things like, "this was added as a TDMA line!" to which my response was, "Not by me! I will not pay for this man's cellular phone service! Get him off my bill!"


update: My phone company, not known for employing rocket scientists, thought that my cell phone account was the official corporate account of my spouse the Nordic God's employer, a 43,000-employee company.

They told me not to worry if I get a bill for $10,000 next month for cell phone service, I won't have to pay it.

I am so relieved.

i really didn't need to know this

I can buy books--anytime, anywhere--with my Treo.


ambiguous signage, take three

After three tries, here is a clear (if not elegant) depiction of the ambiguous signageinfra.

More Treo news: I was at last successful in downloading the Tibetan monk chants to the SD card by ignoring all the instructions posted both by the Treo folks and the RealPlayer folks. The sound quality is surprisingly good for a camera/organizer.

TimeMatters report: I am still assessing the damage to the database. "She canna fly full power, Captain!"