July 30, 2008
Sokol on Obama as Teacher
Posted by Jeff Lipshaw
Danny Sokol (Florida, left), over at Antitrust and Competition Policy Blog (A Member of the Law Professor Blogs Network), provides additional detail (he was also quoted in the New York Times story) on his experience with Barack Obama while Danny was a student at the University of Chicago Law School. His account confirms other stories I've heard about Obama's genuineness. When I was helping out (somewhat) back in the early primary season, some of the people who were working up in New Hampshire told me about the Senator coming out of a building and throwing snowballs at the volunteers, leaving them in something of a quandary - "do we throw snowballs back? are the Secret Service agents going to object if we do?"
It's also interesting to see peers and acquaintances go from being private figures to public figures in full view, particularly when, as Danny points out, part of your appeal and, indeed, charisma, is your individual attention to people. I've experienced the "looking beyond me to the next person" sense in talking to a number of politicians, and in fairness, the number of people who make demands on a mayor's or governor's or senator's or candidate's time simply forecloses the possibility of that now public person being everybody's friend.
July 19, 2008
Notes from Michigan
Posted by Jeff Lipshaw
Some random observations this morning from up here in God's country. . . . (well, if David Broder could do it from Beaver Island thirty miles northwest in the middle of the lake, why can't I?)
- The front page of the Detroit Free Press has a story on the latest gaffe in the mayoral debacle, this time, the decision by Gov. Jennifer Granholm (D-Harvard Law School) apparently to try to broker a deal with the federal prosecutors to resolve the mayor's difficulties at the same time she may be called upon to remove him from office. Quoted in the article on the legal ethics angle is none other than our own Nancy Rapoport.
- They have begun to tear down vacant Tiger Stadium. See the New York Times.
- Reading the list of Starbucks closings to which Alan linked felt a little like going down a list of disaster victims. I knew the ones at 38th and Meridian and in The Precedent in Indianapolis. I used to stop at the first one on my way down to teach my entrepreneurship and the law seminar at IU-Indy, and the second one was the stop between the gym and my office at Great Lakes. Interesting that not a single store in Boston or Cambridge was closed. Here's a theory. Because of the significant competition in Boston from Dunkin' Donuts (I still don't get Dunkin' Donuts, particularly the abomination of having the servers put the cream in your coffee before they pour it, but Boston runs on Dunkin'), Starbucks never overbuilt.
- For those of you just dying to know the fate of yesterday's cherries, first they are pitted and sugared (see above left), and then they are consigned to a cherry crisp (right). We who merely climb the ladder to pick the cherries defer this latter highly technical activity to the experts.
- Humean dogs. My two dogs, Max and Annie, are constrained by an Invisible Fence. When somebody comes by walking a dog on the street in front of us, they run up and down barking furiously until the passersby are a couple feet beyond the lot line, and then they immediately stop. I have concluded they believe they are causing the passersby to go away.
July 16, 2008
McMillian on Lawyer Depression and Media Depictions
Posted by Alan Childress
Attorney depression and related mental health issues are a recurring topic on this blog and others (e.g., Mike's June 20 post on a Pennsylvania bar matter, and his this morning on a Missouri case involving bipolar disorder). One website is devoted to the specific topic: it is called Lawyerswithdepression.com, and is edited by Dan Lukasik. Depression is the subject of a recent California Bar Journal article, as we noted here. David Giacalone at f/k/a has also written on the subject in helpful detail and poetically, and see also Legal Underground's important 2005 post here (guest penned by Ray Ward). Both Ray and David link plenty of books and articles, and the comments and blog trackbacks following Ray's post are extensive.
The subject intersects frequently with attorney images in popular culture. Jeff wrote on the subject via posts about Michael Clayton and law firm associates. Bill Henderson, along with David Zaring, wrote a review essay on two lawyer novels depicting associates and their supposed unhappiness, but Bill also points to empirical studies worth considering before jumping to the conclusion that lawyering equals unhappiness.
Now Lance McMillian (Atlanta's John Marshall L.S.) has published in SSRN Law & Soc'y: The Legal Profession his new paper, "Tortured Souls: Unhappy Lawyers Viewed Through the Medium of Film." He focuses on such 'tortured' characters as Ned Racine, Frank Galvin, Michael Clayton, and even Atticus Finch. The abstract is below the fold.
Lance's abstract is:
Lawyers are unhappy. So bad is the situation that scholars have even asked, "Can one be a lawyer and a happy human being at the same time?" Culturally, the existence of unhappy lawyers is not an unknown phenomenon. Case in point: the portrayal of tortured attorneys through the medium of film. This Article focuses on nine such lawyers: Ned Racine, Michael Clayton, Frank Galvin, Reggie Love, Paul Biegler, Sam Bowden, Arthur Kirkland, Jan Schlichtmann, and Atticus Finch. Similarities between lawyers in reel life and real life quickly emerge.
The legal profession should pay attention to these common struggles. Attorneys in film have much to teach. Their most lasting lessons point the way for the modern lawyer to reclaim a satisfying and fulfilling legal career. Through the movies, lawyers old and new can freshly discover the secrets for lasting success: doing what one loves, devoting oneself to a noble end, and refusing to compromise ethically. That great cinema contains enduring truths and insights should not be surprising. The best films help us to learn something more about ourselves. Learning without action, however, soon melts away. When trapped in unhappiness, it is the individual who must act and make choices consistent with that person's core values. Movies can rekindle our ideals. But only we can make those ideals a reality.
Being on Both Sides of a Litigation Not Entirely Without Precedent
Posted by Alan Childress
As for my earlier assertion that having an interest in both sides of an appeal is entirely without precedent, I retract somewhat. Consider Chico Marx cross-examining himself in Duck Soup, which
required him to ask the questions then quickly sit down to answer himself. (Or was it Groucho?)
The movie has a broader theme of straddling the fence, perhaps not lost on the attorney in my prior post, but contextualized here as to the larger war at issue for the nation of Freedonia:
Groucho : Awfully decent of you to drop in today. Do you realize our army is facing disastrous defeat? What do you intend to do about it?
Chico : I’ve done it already.
Groucho : You’ve done what?
Chico : I’ve changed to the other side.
Groucho : So you’re on the other side, eh? Well, what are you doing over here?
Chico : Well, the food is better over here.
All as quoted at this clown ministry site (and here), which also notes that the town of Fredonia, NY, had "complained about the use of its name with an additional 'e'. The Marx Brothers’ response was: 'Change the name of your town, it’s hurting our picture.' " (Quoting from imdb.) Meanwhile: Groucho: "I’ll see my lawyer about this as soon as he graduates from law school." Finally, as to sanction for such a fiduciary breach:
Groucho : Gentlemen, Chicolini here may talk like an idiot, and look like an idiot, but don’t let that fool you: he really is an idiot. I implore you, send him back to his father and brothers, who are waiting for him with open arms in the penitentiary. I suggest that we give him ten years in Leavenworth, or eleven years in Twelveworth.
Chico : I’ll tell you what I’ll do: I’ll take five and ten in Woolworth.
July 12, 2008
New England White: Carter as LeCarre?
Posted by Jeff Lipshaw
I liked Stephen Carter's The Emperor of Ocean Park a lot, but I lost track, in the hubbub of the last year, of his second novel, New England White (New York: Knopf, 2007), which I finished just in time to dig into his new novel, Palace Council. Like another lawyer-novelist, Scott Turow, Carter takes a secondary character from his first novel and makes her the protagonist of the second. In Turow's case, it was Presumed Innocent's defense counsel, Sandy Stern; here it is the first lady, Julia Veazey Carlyle, of Ocean Park's Yale-like university. I won't spoil the plot; this is a mystery. Suffice it to say that it involves Julia's relationship with three men, her murdered ex-lover, a brilliant but insufferable economist, her husband, the most powerful black man, and maybe the most powerful man, in the country, and a stoic, if not heroic, ex-cop. In addition, there's her troubled teenage daughter, her ex-patriate mother, and a presidential election contest that might have occurred if Bill Clinton and George Bush were party-hound roommates together at Yale and then ran against each other.
Unlike The Emperor of Ocean Park, however, New England White is engagingly flawed, and I take what may be my all-time favorite books, John LeCarre's Tinker, Tailor, Soldier, Spy and Smiley's People, as points of comparison, good and bad. Like LeCarre's early work (his later books, I think, became intentional or unintentional caricature), Carter's mysteries give us an insight into a heretofore closed set. For LeCarre, it was the Belgravia and Mayfair plus Oxbridge don as spy set; for Carter, it is the aristocracy of black society. Moreover, like LeCarre, Carter weaves into his mysteries far more than mere action. There are real moral ambiguities here - not the least of which is the extent to which one is entitled to use odious means - blackmail, among them - to a good end (for LeCarre, the triumph of the West over the Soviets; for Carter, the advancement of the darker nation).
That's why New England White is engaging; why is it flawed? Again, let's use the two LeCarre books as a point of comparison. They are two of the most intricately plotted books you will ever want to read. They, like New England White, are written in the third person limited omniscient (for LeCarre, it's mostly Smiley, but also major secondary characters like Jim Prideaux and Peter Guillam; for Carter, it's primarily Julia and Bruce, the ex-cop). LeCarre's narrator has something of a presence but it is, for some reason, far less obtrusive than Carter's. I had the reaction from time to time that Carter couldn't resist his own cleverness - the one instance that springs to mind is one of the characters observing that a male author should not use a woman character as his voice. Moreover, LeCarre's plots flowed inexorably. Carter has concocted a complex and kind of fun web of deceit, cover-up, and cabal. I won't say I couldn't put it down, but it kept me going. But like the author, the heroes just seemed to me to be too clever, the dialogue a little too stilted, and there were too many Dickensian coincidences. It was just a little too forced, and as such, the plot seemed to keep calling attention to itself. Nevertheless, Carter (unlike some other law professor novelists I won't name) seems to have restrained the law professor's inclination to explain everything, at least immediately.
No, what really keeps one going in New England White, despite the flaws, is that Julia really is a pretty good character - a strong, intelligent, flawed, rounded woman, even if her circumstances strain credibility from time to time. And that may be consistent with Carter's general iconoclasm from Reflections of an Affirmative Action Baby on: don't assume my pigeonholes just because of who I am, because I'm too complex and I will surprise you.
NOTE: If you're in the Boston area, Professor Carter will be reading selections from Palace Council at the Harvard Book Store in Cambridge on Wednesday, July 16.
June 23, 2008
Real life imitates episode of Shark (well, sort of)According to today's New York Times (here), one of Morgenthau's prosecutors says that he intentionally threw a case because he was convinced that the defendant wasn't guilty. In the recently canceled CBS series Shark, James Woods's character Sebastian Stark throws a case because he's convinced that his client IS guilty (see here). Guess what, folks? Throwing a case is unethical, even if you're convinced it's the morally correct thing to do. (Nancy Rapoport)
June 16, 2008
Book, Movie Do Not Require Disqualification Of Prosecutor
There is an interesting article in the June 2008 California Bar Journal by Diane Karpman. She discusses two recent California Supreme Court decisions in cases where disqualification of the prosecutor had been sought. One matter involved a "lead prosecutor who moonlighted as a novelist, writing a fictional account of a heroine prosecutor's decision whether to try a rape case involving an intoxicated victim." The prosecutor had the book published while responsible for the prosecution of such a case. The other involved cooperation with a movie where it was alleged that confidential information had been shared. The defendant in the case has the perfect movie name: Jesse James Hollywood. The movie of the Hollywood case is called "Alpha Dog" and was released in early 2007.
In both cases, the trial court had held a hearing and denied the motion. The Court of Appeal had overturned the denials. Here, the court concluded that the trial courts had not abused their discretion. In neither case was disqualification ordered. (Mike Frisch)
June 14, 2008
Local lawyer in Vegas does the right thingThere's a lovely article in the local Las Vegas paper about a lawyer who, after discovering that his boss had stolen $200K from her client trust accounts, repaid each and every client for the theft. (See here.) For my take on it, see here. (Nancy Rapoport)
June 06, 2008
Author of the Greatest Fictional Lawyer of All Time Speaks Out (Well, Spoke)
Posted by Alan Childress
That writer would be Nelle Harper Lee -- we southerners tend to go by our middle names, or by two names [President Clinton should have been Billy Jeff]. And the lawyer would be Atticus Finch. If you have another nomination of greatest literary lawyer that comes close, bring it on, in comments. But your efforts to get the author to discuss Atticus, Jem, or Boo will fail. She allows the words she has already written to speak for themselves. My brother Mark Childress once joined the quixotic crowd trying to snag the interview, and wrote in Looking for Harper Lee:
I learned that a friend of a friend was in touch with her and wrote what I thought was a very nice letter, asking if she'd grant me a few minutes on the phone or submit to an interview in writing. In a few weeks my letter came back with "Hell No" printed in green ink across the top.
Some years later, though, when I wrote a novel of my own, I mailed a copy to Miss Alice Lee, Nelle's older sister. (Miss Alice had done some legal work for my father when we lived in Monroeville, and I shamelessly traded on that connection.) I tried to explain in my letter just how much To Kill a Mockingbird meant to me, how it had inspired me to write my own book.
One day a white envelope landed in my mailbox, addressed in the same open, feminine hand I remembered from the autographed copy at Miss Wanda's house. A four-page handwritten letter from Nelle Harper Lee, it brought kind words about my own work. Her voice, clear and warm and familiar, rose up like a lovely perfume from the pages. I'll never receive a letter that gives me more pleasure.
That was when I gave up trying to meet Harper Lee.
Meanwhile, her earliest writings do live on, digitized, thanks to the special library collections of the University of Alabama (a great university, educator of Harper Lee, Mark, and me [and Forrest Gump]). The library has posted on some of the author's pre-novelist humor-mag musings while she was a law student. The post was picked up and expanded on by Drexel's Dan Filler over at The Faculty Lounge (HatTip to ATL).
Her plans at the time? The school paper Crimson White quoted her: "As for literary aspirations she says, 'I shall probably write a book some day. They all do.' " Dan sums up, "Surely an understatement for the ages."
Maybe Entertainment Tonight has an inside source in the Lee household to get an update.
June 03, 2008
Don't Get This Lawyer Angry Or His Shirt Rips (Or She Buys Louis Vuitton)
Posted by Alan Childress
Thanks to lawyers-in-media follower Dean Kelly Lynn Anders at Washburn, we have these two sighting updates, one I am less interested in than the other. Can you guess which?
First, Kelly writes "Remember Miranda?" and she does not mean the right to remain fabulous:
I thought I would take a quick break from our final exam period to mention something for the Blog. The film, “Sex and the City: The Movie,” will be released in the US on May 30, but premiered in the UK on May 12. The “first review” is available at The Times. Despite the two-star rating, I think true SATC fans will be excited to see it. The original series debuted on HBO in 1998 and ran for six seasons, so it seems rather fitting to have the film released on the 10th anniversary of the TV show. As you may recall, SATC featured a lawyer in the quartet: Miranda Hobbes. (See HBO site.)
Apologies to Kelly that I quoted her a bit late, but it is just in time for there to be plenty of other negative reviews she could have cited. For another SATC viewpoint, including red carpet news that no one else would notice, see sharp-eyed Susan Scafidi (Fordham) at her Counterfeit Chic blog in this post; see also her interesting [copyright trivia re YSL vs. Polo] review of the traveling Yves St. Laurent exhibit here. Susan's trendy LV pet is shown right.
Second, Kelly writes "The Incredible...Lawyer" though oddly it is not about me:
How is grading coming along? I’m not a big fan of “The Incredible Hulk,” but I am a fan of Ed Norton and thought I would propose something for the Blog. The film will be released in mid-June, and I was surprised to learn that (1) Norton turned down the role in the 2003 film and (2) his father is an attorney. Additional interesting trivia is available at IMDB. For true diehard Hulk fans, there was the 1989 release, “The Trial of the Incredible Hulk,” in which Dr. David Banner’s lawyer is none other than superhero, Daredevil. Details are available here. Apparently, Hulk creator Stan Lee has a cameo as the foreman of the jury in a dream sequence of the 1989 film; this was Lee’s first appearance in a film adaptation of his work, which would later become a tradition. That film was directed by the original TV Banner, Bill Bixby (who majored in pre-law at Berkeley). Imagining the Hulk as a lawyer gives new meaning to the old TV line, “Mr. McGee, don’t make me angry. You wouldn’t like me when I’m angry.” (smiles)
Nice attorney trivia, Kelly, thanks. And to answer your question, as of this morning, I turned in all my grades. I am also a huge fan of Edward Norton and thought of him this weekend in Montreal, because of his great performance in that thief movie with De Niro, and of course the lawyer movie Primal Fear.
May 07, 2008
Lawyers in Love and Control
Posted by Jeff Lipshaw
I am a great fan of Richard Ford's Frank Bascombe trilogy (The Sportswriter, Independence Day, and The Lay of the Land), and for our two-car caravan from Cambridge to Michigan, my wife Alene gave me the audio tape of Ford's 2003 collection of short stories A Multitude of Sins, most of which I listened to on the way. The stories are mostly about infidelity (and of that infidelity, mostly marital), but many of the characters are lawyers. Why that is so could be the subject of another entire post, but Jackson Browne may also have had an insight.
One of the stories had a coda so moving that I replayed it several times, and I stopped at a Borders to buy a copy of the book just to read it again. In "Calling," the narrator recounts an incident from his New Orleans boyhood, in 1961, when he was sixteen and home from a Florida military school. His father, the product of an Uptown society family, has been out of the house for a year, having been expelled from the hundred year old law firm that bears the family name, and now lives in St. Louis with his homosexual partner. His mother, an aspiring singer, has taken as her lover a black jazz musician who by day purports to be the caretaker for the family home. As in much of Ford's writing, not much happens; instead we experience what happens through the minds of the participants, as if in slow motion, dissecting the nanoseconds in which thoughts occur. The incident here is a duck hunting excursion with father and son in the bayou, and what happens is not important to my point.
This is the part that that I replayed:
That morning represented just the first working out of the particulars I would observe evermore. Like my father, I am a lawyer. And the law is a calling which teaches that most of life is about adjustments, the seatings and reseatings we perform to accommodate events occurring outside our control and over which we might not have sought control in the first place. So that when we are tempted, as I was for an instant in the duck blind, or as I was through all those thirty years, to let myself become preoccupied and angry with my father, or when I even see a man who reminds me of him, stepping into some building in a seersucker suit and a bright bow tie, I try to realize again that it is best just to offer myself release and to realize I am feeling anger all alone, and that there is no redress. We want it. Life can be seen to be about almost nothing else sometimes than our wish for redress. As a lawyer who was the son of a lawyer and the grandson of another, I know this. And I know not to expect it.
Control (or imagined control) over contingency is a theme to which I return over and over again in my own writing. We have a predisposition to find order in chaos, and the model offered by the law is only one of many. We resist the idea of meaninglessness (or entropy of meaning?), whether by means of natural law, or by a faith in the naturalistic regularities of science. Redress is a model of satisfaction, but it is not satisfaction.
April 30, 2008
Link to Book Reviews for Legal Fiction
Posted by Alan Childress
Thanks to a pointer by reader Kelly Anders, who last week wrote on Law & Order, here is a link to the just-out "first special issue on Legal Fiction from THE LAW AND POLITICS BOOK REVIEW." From the intro:
Often during the fifteen years we have been colleagues in the criminal justice department at Radford University, we have talked about including works of fiction in our classes. Each of us has favorites. Jack is partial to RUMPOLE OF THE BAILEY and SNOW FALLING ON CEDARS. Mary often uses TO KILL A MOCKINGBIRD and A LESSON BEFORE DYING. We agreed it would be interesting to find out how others who teach courses in political science, criminal justice, or law use novels in their teaching.
Other reviewed books include I Robot, Bonfire of the Vanities, Billy Budd, The Stranger, Cat's Cradle, A Time to Kill, Harry Potter and the Order of the Phoenix, and Brave New World (shown as sold by Amazon). Plenty of other listed novels are recommended by the journal, but not reviewed yet.
April 25, 2008
Boston Legal Portrays the Real McCoy While The Office Is a Liability Petri Dish
Posted by Alan Childress
Continuing my apparent theme this week of lawyers in popular culture and media portrayals -- from John Adams to TV ads to Law & Order -- I note that, yesterday in the California Blog of Appeal, Ventura appellate ace Greg May posted that the show Boston Legal this week featured Supreme Court lookalikes and real Justice names in an "oral argument." He cites and links the Harmful Error Blog as providing a YouTube video of the hot bench and the comment that this is "fairly amazing." I wonder if Justice Thomas asked any questions. I am pretty sure no lawyer from Loyola-Marymount answered "Nope" to Justice Scalia or suggested to him that reading case law before the argument might make one's head hurt so was to be avoided.
Greg also links his prior post on a blogger-lawyer (Atlanta's Julie Elgar) who watches The Office to tally up all the liability events in each episode. That could be more daunting than keeping up with the card count with Kevin Spacey in 21. [21? Not 22? That explains it!] Elgar's intro to last week's episode is a tad surprising and not particularly comforting:
Despite what you might think, Michael’s demand that all employees provide him with candidates to serve as the mother of his children does not violate any major employment law.
I did guess right on this one:
That being said, allowing managers to require their subordinates to act as match-makers as a term and condition of their continued employment isn’t a good idea.
April 24, 2008
Law and Order To Repeat Its Good-Bye To Jesse Martin
Posted by Alan Childress
Last week I blogged on Kelly Lynn Anders' (Washburn) interest in lawyers' portrayals in movies, TV, etc., and her Karen Silkwood article. She is also, unsurprisingly, a big Law and Order fan, as are many of my students who literally grew up on it and decided via Sam Waterston's Jack McCoy to go to law school. They seem disappointed we offer no thunk-thunk sound when they say something dramatic in class.
Me, not so much. Not a big fan. My fandom, if any, ended while cringing at envisioning one of their ripped from the headline stories based on a real Seattle D.A. event. But I am a big fan of Jesse L. Martin, particularly on-stage and in film as Tom Collins in Rent (left), and I do look forward to his playing Marvin Gaye in an upcoming biopic. So I took notice when Kelly told me he is leaving (now, has left) Law and Order. She thought the episode was excellent and she reminds our readers that it will re-air on NBC
Sunday Saturday night. She writes:
In typical revolving-door fashion, another “Law & Order” regular leaves the series in tonight’s episode. Ed Green (Jesse L. Martin), who was the last detective to partner with the late Jerry Orbach’s unfortgettable Lenny Briscoe, ends his run Apr. 23 in what promises to be a powerful episode that reveals some disturbing secrets behind Green’s professional demeanor.
As TV Guide’s Matt Roush advises, “I’m truly sorry to see Martin go at this juncture of the show’s history. After a number of seasons of uneven cast chemistry…this season righted itself with the strong additions of Jeremy Sisto as Green’s new partner, the war-haunted Cyrus Lupo, and Linus Roache as scrappy new ADA Michael Cutter, working under the often dubious supervision of newly promoted DA Jack McCoy (Sam Waterston). The show, which even in its off years was never less than intelligent and compelling, has felt newly re-energized of late, and it’s too bad we couldn’t have enjoyed at least one full season of the refreshed stability.” (Source: “A Dramatic Exit for Jesse L. Martin” at http://seattlepi.nwsource.com/tvguide/360246_roush23.html.)
Additional details about the series are available at http://www.imdb.com/title/tt0098844/. The “Trivia” section is especially interesting. The show’s official site is available at http://www.nbc.com/Law_&_Order/.
Correction: Look for the show
Sunday Saturday night on NBC, at 10:00 p.m. EST.
April 18, 2008
The Original Boston Legal: John Adams, Esq.
Posted by Alan Childress
We are happy to post this media reminder sent by Kelly Anders, Washburn Law School's associate dean for student affairs. She writes:
HBO’s seven-part miniseries, “John Adams,” concludes on Sunday. History buffs, legal historians, and Con Law aficionados alike will appreciate this thoroughly-researched and well-acted depiction of the lives of John and Abigail Adams. The series is based on the Pulitzer-winning book by David McCullough (who also won the same prize for his book on Harry Truman). Additional details about the “John Adams” miniseries are available at http://www.hbo.com/films/johnadams/ and http://www.imdb.com/title/tt0472027/
The film shows all troops acquitted for the Boston Massacre, however two men were found guilty of murder because they were found to fire directly into the crowd. John Adams was able to have their charges reduced to manslaughter due to a loophole in British law by proving the men could read. The two solders were punished by branding on their thumbs.
My own research reveals that Dean Anders has long followed the role of lawyers and law in popular culture, so it is not surprising this caught her eye and she shared. Here is an SSRN link I found to her 2007 article, "Reviewing Silkwood at 25: The Reel Impact on Environmental Policy." It is about Cher, Streep, and a needed sequel to the movie. Her abstract is below the fold.
The year 2008 will mark the twenty-fifth anniversary of the release of the film Silkwood, which depicted the events surrounding the apparent plutonium contamination and mysterious death of Kerr-McGee employee Karen Silkwood. The film featured the facts leading up to the case, but many would argue that the resulting lawsuit involved a legal battle worthy of a sequel. The Kerr-McGee Corporation may no longer exist, but the former company continues to impact our concepts of environmental policy, whistleblower protection, and damages awards through case law. This essay provides a comparative analysis of the case and its depiction in film and follows with a summary of how both continue to impact environmental policy.
April 16, 2008
A Quick Reality Check for 'Eli Stone'
Posted by Alan Childress
While channel surfing the other night, I wound up watching about a third of Eli Stone, in which the lawyer was trying to get mandamus to evacuate the Golden Gate Bridge, anticipating an earthquake. I am not qualified to give a full review (unlike Maxim, that felt comfortable reviewing an entire musical album even though they could not have heard it all yet). But it does raise some reality-check questions worth noting -- beyond his heavenly powers, and the fact that an earthquake that everyone survived at the end seemed to be an earthquake weak enough to look like it was shot by having the actors stand there while someone shook the camera a little, yet strong enough to topple the Golden Gate Bridge [somehow as observed from some spot in "Golden Gate Park" -- is that even eyeball/stance-possible?].
Anyway, for our purposes, the reality check would be for the actual trial or hearing in which one lawyer from the firm was on the other side of the case from another lawyer from the same firm. WTF? I really lost it when Lawyer A from that firm [Peg from Married With Children] called an associate from the firm to the stand -- an associate shared with lawyer B, Eli Stone -- to rat out Eli regarding a prior matter he had handled for a different client.
Wow, even for Hollywood (Burbank?). Will the never-mentioned malpractice suit to be brought by the other client against the firm be both pursued and defended by other lawyers in the firm? I hope it will be the named partner played by the Jennifer Garner dad guy from Alias. He seems serious and ethical enough to be able to handle both sides of that case.
The show seems to follow the Regarding Henry premise that a traumatic brain injury of some sort causes a lawyer to become ethical. And by ethical, we mean willing to get at the 'right' result regardless of rules, fiduciary duties, clients, privilege, and other pesky morality-suckers.
March 17, 2008
What do needles and vials in Vegas have in common with Jeff Skilling's appeal?(Posted by Nancy Rapoport) There's a local scandal a'brewin' in Las Vegas, where several medical centers stand accused of having reused needles and single-use vials in an effort to cut costs--see, e.g., here. Unfortunately, the reuse of needles and vials carries with it the risk of such diseases as hepatitis C and HIV. Here in Las Vegas, several of us have been asking ourselves how health professionals could possibly have gone along with orders to reuse needles and vials, knowing the potential health risks involved. Now Jeff Skilling's lawyers are alleging that the Enron prosecutors deliberately withheld potentially exculpatory evidence during his trial (see, e.g., here, here, here, and here). If these allegations are true, why would the prosecutors do something so obviously dumb and ultimately counterproductive? Personally, I think it's because our parents were right: we tend to play follow-the-leader, especially when we're under pressure. Group norms are a lot more powerful than we tend to pretend that they are, and rules (ethics rules, caselaw, even the fear of sanctions) are not as powerful as deterrents as peer pressure is as a motivator for action. Peer pressure acts in the now, and deterrents are for a later time and place. If the suppression of exculpatory evidence was on as large a scale as Skilling's brief contends, then it wasn't a one-shot action by a rogue prosecutor; instead, it was a team effort to cheat the justice system. As long as we're talking about group behavior, let's throw a little cognitive dissonance into the mix as well: perhaps the prosecutors, having worked so hard on these prosecutions, really wanted to ensure the win, so they talked themselves into withholding exculpatory evidence "for the greater good" of getting a conviction. All of this is conjecture on my part. We don't know enough yet to know what really happened, although things look pretty bad for the prosecutors. My point is that people are good at fooling themselves into doing things that they know are wrong, and groups of people are very good at egging each other on to turn these individual bad decisions into new, and very bad, group norms. From those incrementally bad decisions, we get convictions that may get overturned and people walking into health care facilities hoping to get screened for illnesses and walking out with serious and incurable diseases. All for what? For the sake of saving short-term costs without thinking of the larger, long-term ones. Hey, wait: wasn't that the problem with Enron in the first place?
March 03, 2008
Michael Clayton: The Only Thing That Could Be More Unrealistic Than Its Portrayal of Bipolar Mania is If I Suggested that I Bear Any Resemblance to George Clooney (although I look a little like Tilda Swinton by the end of a 100 minute class)
Posted by Jeff Lipshaw
Alan has challenged me to address his speculations.
I didn't want to see Michael Clayton, even though I heard it was good. I have never seen Erin Brockovitch or A Civil Action. Yes, it's true that I was the general counsel of a large chemical company, and that's no doubt the reason. I have steadfastly refused to sit through any so-called "entertainment" in which I (or someone like me) is the villain ever since my daughter Arielle (now a grad student in theater at Columbia) was in the 8th grade, and wrote, produced, directed, and starred in a play called Lily's Life. This was the touching story of a girl with cystic fibrosis, in which the incomparably evil character was the FATHER, played by Arielle herself, since she had just fired the boy actor she had originally cast. I can still remember, when his utter venality came out, everybody in the audience turned around and stared at me with "you son-of-a-bitch" in their eyes. (What's worse is that Lily's Life played for years after on the local access channel of the Birmingham, Michigan school district.)
But Matt, my son, was home, and in a moment of father-son bonding, I agreed to watch Michael Clayton with him.
It was a good movie. But I have low standards, namely whether I fall asleep or not. Others, as Alan points out, have better points about the technical legal issues than I. Two things jumped out at me. (1) I thought Tilda Swinton's portrayal of the angst and distinction between the private moments of preparation and the public performance were accurate in an atmospheric sort of way, and (2) I have had experience dealing with people who are in manic stages of bipolar disorder, and there's no way that Tom Wilkinson went from being naked at a deposition (including running around in the parking lot) and screaming "I am Shiva, the Goddess of Death" to getting on an airplane and making it back to New York where he is together enough to buy fourteen loaves of bread. In real life, even if he makes it to the airport, he's locked up before he goes through security.
February 16, 2008
Deer Hunter Redux: Was He Licking His Lips Like Roger Clemens While Splaining to Park Ranger?
I still cannot get that Deer Hunter bar discipline case out of my head. I was not satiated by adding bad pun comments after Mike's post.
How bad a lawyer do you have to be that you cannot talk your way -- legitimately -- out of an investigation into this? He must have changed his story four times, or licked his lips constantly while he and Boo Boo recounted the tale to Ranger Smith.
I can just see Jon Lovitz in the role of the lying lawyer: "the license belongs to my wife, eh, Morgan Fairchild, yeah that's the ticket."
It says something about our society that the lawyer could be in big trouble, and possibly not be a lawyer anymore, for abetting the shooting of a deer -- while the Vice President is still the Vice President after shooting a lawyer. Hmm.
February 11, 2008
Should Lawyers Be Able to Publish Confidence-Ridden (or Guilt-Ridden) Memoirs?
Over at the Australian Professional Liability Blog, barrister Stephen Warne asks that question, and relates the example of a criminal defense attorney, John Marsden, who felt the need to unload his views on (and details about) a notorious rapist-murderer client. "Criminal lawyers have to live with secrets which bear down heavily on them. Perhaps it is not surprising that Marsden made the disclosure. But where was the reportage that this was a serious transgression? I am not speaking of condemnation, but rather an acknowledgment that this is not as it should be." Warne then makes an analogy to the Britney Spears-Dr. Phil situation. [Alan Childress]