Friday, April 22, 2022
In The Verdict Frank Galvin says, in his summation, "In my religion, they say, 'Act as if ye had faith... and faith will be given to you.'" I think about that a lot. When I walk into court I believe that my arguments will be persuasive, and that the merits will carry the day, but that has never meant that when I prevail on behalf of my client I'm not surprised. I'm always surprised, even though I have faith that the system works the way it should, the way we have to believe if we are going to function as lawyers. It is a strange sort of cognitive dissonance, and it probably accounts why so many of us are such a mess.
This morning I woke up to NPR telling me that the lawsuit which seeks to bar Marjorie Taylor Green from the ballot is a "longshot". The history of the judicial interpretation of 14th Amendment might lead one to reasonably believe that courts are not inclined to even read the 14th Amendment. Whole big pieces of it have been ignored from the moment it was enacted, and the part that forms the basis for this particular lawsuit doesn't have a great deal of precedent to aid in its interpretation, but even so it says what it says, and should be read to mean what it says. That being the case NPR is not helping when it finds it appropriate to evaluate the claim before there has been any proof adduced. Acting as though you have no faith in the system has never, in my experience as a lawyer, brought about a just result.
Friday, April 15, 2022
There was a little game a one-time housemate and I used to play: we'd think of literature courses we'd like to teach. I can only remember one at the moment: English Authors With Big Mustaches, which would have included G.K. Chesterton, H.G. Wells, Rudyard Kipling, and Joseph Conrad. But for Conrad that could have been English Writers Who Did Not Use Their First Names.
I was reminded of this following my viewing earlier this week of Ragtime, which got me thinking about other novels that seemed like they were likely to join some sort of canon. William Kennedy's Albany Trilogy came to mind, as did William Wharton's Birdy. There's probably an Anne Tyler novel that would fit into this syllabus, and probably also something by Don DeLillo.
I don't mean this as a knock- what these works would have in common, apart from the fact that they are all novels written in my lifetime, is that they all impressed me as wonderful, and then, for the most part, faded from my consciousness. When I am reminded off them, as I was by Ragtime, I think, "Yeah, that really caught lightening in a bottle."
Thursday, April 14, 2022
I watched Ragtime last night, the first time I've ever seen it. Why isn't this movie talked about the way, for example, Nashville is? Unless I am missing something it deserves more respect than I've seen.
Tuesday, April 12, 2022
Wednesday, April 06, 2022
New York State recently amended its discovery rules to require much more detailed disclosure of insurance information. It is, in my view, burdensome and a pain in the ass, but that's the way it goes. I attended a virtual CLE about the new requirements put on by the New York State Trial Lawyers (plaintiffs' attorneys are "trial lawyers". Negligence defense lawyers apparently don't get to cal themselves that for some reason.) The program was good on substance, but the presenters made it clear that the new rule was something they'd lobbied hard for because, in their view, the dastardly defense bar was all the time trying to cheat in order to take the bread out of the mouths of their clients, who are widows, orphans, and hard-working salt of the earth laborers. I have no question in my mind about the sincerity of their belief. My first job out of law school was with one of the lions of the plaintiffs' bar, and he believed in his bones that insurance companies and the lawyers who work for insurance companies were all completely committed to screwing over his clients.
This week I am attending a CLE put on by an insurance company that we do work for. The thrust of this program is that the rascally plaintiffs' bar is in cahoots to screw over defendants and the insurance companies that cover them.
Among defense attorneys the current bête noire is something called the reptile theory of litigation. As I understand it the idea is to appeal to the emotional part of jurors' approach to the evidence at trial, particularly by suggesting that they should identify with the plaintiff in a lawsuit, and by further suggesting that the defendant in the case unreasonably violated safety norms and rules out of indifference to their client. Frankly, none of the examples that I have seen or read about impress me as anything different from what I've seen since I started out in this glamor profession, but I have no doubt that the lawyers who are howling about this are sincere in their belief that the plaintiffs' bar is full of sneaky gonifs who are just out to make a buck. I know this, because I have worked for defense lawyers who believe this in their bones.
It's all kind of exhausting, frankly. I've been trying cases for a long time, and I've seen some shit, let me tell you, but this idea that ones' adversaries are the actual enemy is not something I've ever believed, and I think it diminishes us, and belittles the system and the process that we work in.