It’s often said that actions speak louder than words.Pictures, however, sometimes speak loudest of all.This is especially true in the legal system, where a poignant “day in the life” video of an accident victim who’s been paralyzed by someone else’s negligence can convey more in a few minutes than days worth of clinical expert testimony.Sometimes the pictures themselves can land someone in trouble—even the judge.The Ohio Supreme Court recently sanctioned Jeannette Moll, a candidate for the Ohio Court of Appeals, for wearing judicial robes in her campaign flyers.You guessed it—Moll, a sole practitioner, is not a judge and has never served as a judge (she did serve as a state court magistrate from 1997 to 2007).The Court held that she violated the state’s code of judicial conduct because of the misleading ads.And in Brooklyn, New York, Supreme Court Justice Arthur Schack recently recused himself from presiding over a retrial of a personal injury case that had been tried by attorney John McDonough.McDonough’s firm had alleged that the judge couldn’t be fair and impartial to him.Its evidence?It seems Justice Schack had allegedly posted copies of a photo of McDonough in his courtroom with the word “Wanted” printed on them.He also allegedly drew a bullseye on another photo of McDonough.Despite this, the judge maintains that he is fair, and has “no bias, animus or hostility against Mr. McDonough or his firm.”I think the pictures said a thousand words, and then some.
Sometimes, pictures may simply be the best way for an advocate to express his client’s position concisely and clearly.In Hillwood Investment Properties III, Ltd. V. Radical Mavericks Management, Mark Cuban was accused by a minority owner of the Dallas Mavericks of mismanagement of the NBA team.In his 3-page summary judgment brief, Cuban’s lawyer Tom Melsheimer featured a photo that demonstrated loudly and clearly just how “mismanaged” the team was: it showed the victorious Mavericks hoisting the NBA Championship trophy on June 12, 2011.Enough said.
Recently, a lawyer who opposed the proposed settlement of the Justice Department’s antitrust lawsuit against 3 publishers of e-books (the publishers were accused of a price-fixing conspiracy) resorted to unconventional means in his quest to persuade the court.Bob Kohn, a former music executive and chief executive of Royalty Share, was very critical of the proposed settlement and wanted to share the reasons why in an amicus curiae (friend of the court) brief.However, New York federal judge Denise Cole rejected his 25-page brief, and limited him to only 5 pages.Embracing “the idea of using pictures which, as we know, paint a thousand words,” Kohn filed 5 pages all right—but it was in cartoon form (Kohn calls it a “graphic novelette”).In the comic strip panels (illustrated by a friend of Kohn’s daughter), Kohn is depicted discussing the case with his daughter Katie and presenting the reasons why the settlement before the court harms the public.At the end, Katie tells her father “I’m not a lawyer, but that sounds like a major screw-up.”When the animated Kohn tells his daughter she should’ve been a lawyer, she demurs, saying “not for me.I’m a novelist, and it’s impossible to tell a complex story in only five pages.”Kohn’s “comic brief” made national news, with Publishers Weekly even saying “his rendering is brilliant—not only is it a not so subtle jab at the court for limiting such a complicated case to five page briefs, as a comic strip, the brief will be widely digestible for the general public who may not have the gumption to plow through a typical legal brief.”Alas, it did not work; the judge approved the price-fixing settlement anyway.
Judges, too, have been known to throw in a few pictures with their written judicial opinions, in order to illustrate a particularly salient point or to make the opinion more accessible.One of the judges best known for employing photos in his opinions is Seventh Circuit Justice Richard Posner.In a 2007 case dealing with the slaughter of horses for human consumption, Posner underscored the use of horsemeat by zoos by including a photo of Kwanzaa, a lion at a Waco zoo enjoying a birthday cake made from 10 pounds of horsemeat topped with whipped cream and a carrot.In a January 2012 opinion regarding federal prisoners suing for the right to express their Rastafarian religious beliefs by wearing dreadlocks, Justice Posner incorporated a photo of reggae icon Bob Marley to show how “dreadlocks can attain a formidable length and density.”And in another case, this time involving whether the Fair Labor Standards Act required steel workers to be compensated for time spent changing into protective clothing, Posner underscored what the “donning and dotting” entailed by including a photo of a man in full gear.The judge described the clothing in detail, and then featured the photo for good measure because “a picture is worth a thousand words.”
Of course, sometimes Justice Posner has used photos to express his displeasure with the lawyers.Chastising a plaintiff’s lawyer whom he felt had blatantly ignored unfavorable case precedents in his brief, Justice Posner took him to task both verbally and by including a photo of an ostrich sticking its head in the sand.Ouch!
When I was a little kid, I always went grocery shopping with my mom. Dad never owned a car, so when mom went to the store, I had to go along to help her carry the groceries home.
As a teen-ager in the Fifties, I remember that mom would buy groceries for our family of four with about $6-$7. She wouldn’t buy a lot of the choice meat cuts, but we always managed to eat well. Except for milk and bread, the $6-$7 worth of groceries would last us an entire week.
During the summer months when I was going to high school, I worked as an apprentice cabinetmaker at a mobile-home company. I remember that I was flabbergasted when my good friend and coworker Isaac “Chenco” Herrera told me that it took $20 worth of groceries to feed his family of sever for a week.
“Gosh, Chencho, that’s almost half of your paycheck,” I remember telling him. At that time, I earned $1.15 an hour and Chencho was making $1.35. That came out to $54 a week, less Social Security and income taxes.
Though Chencho had a hard time raising and feeding his five kids, they all seemed well nourished.
I used to ride with Chencho to work, and on the Fridays when we got paid, we’d stop at a local grocery store where we’d cash our checks. After cashing his check, he would buy some groceries for his family. I don’t know if they were available at the time, but I can’t recall him ever buying groceries with food stamps.
After I got married, I let my wife do the grocery shopping for a while. It didn’t take me long to realize that she wasn’t good at it. Thus, I continued my grocery-shopping venture into my married life, which I didn’t mind.
Some of my male friends would make fun of me when I told them that I enjoyed grocery shopping for my family. My friends would tell me I was lying to cover up my henpecked ways. Their laughter was soon subdued when I’d tell them that most of the grocery shoppers were women, and that I found great pleasure in girl watching while I shopped. Of course, I never did tell my wife that. She has always thought — and still does — that I am a wonderful husband for doing it. (I never have shown my wife this article.)
After I got married in 1960, the weekly grocery bill for my wife and me averaged around $9. However, as the years passed and our family grew to three kids and my mother-in-law, whom I had asked to come live with us, my grocery bill grew considerably. It was then that I became more frugal in my grocery shopping.
How? Well, I began to buy more chicken than beef. Bologna became my family’s favorite lunchmeat. Frijoles (beans) thank God, still reign over canned corn and green beans. Instead of buying brand-name canned goods with the Del Monte or Dole label, I’d buy the chain-store brand. I would substitute mellorine or ice milk for real ice cream for my kids. On Thursdays I would scan the newspaper in the food section for grocery coupons.
One day Cecilia, my youngest daughter, got on my case. She said, “Gosh, Dad, why don’t you buy Blue Bell ice cream once in a while? It tastes a whole lot better than the mellorine and ice milk that you buy us. Little Mary’s mom (next door neighbor) always gives me Blue Bell when I go play at her house and her mom doesn’t even work!”
After some thought, and after that tongue-lashing Cecilia gave me, I eased up on my grocery frugality and started buying why my family wanted and indeed deserved. Of course my food bill soared.
I then began to notice the spending habits of those who bought groceries with food stamps. You see, I knew most of my friends’ wives who shopped at the grocery store. Little Mary’s father for example, had a bad drinking habit. Though his wife didn’t work and they had several other kids, Little Mary’s dad spent a lot of his money on beer and liquor. His poor wife — and I saw her many times — shopped solely with food stamps.
I’ve seen it so many times, but I still wonder: Why is it that individuals with food stamps will buy better grocery items that those of us who don’t use food stamps? Why is it that they will buy top-brand-name canned goods, ham, steak, expensive pastry products and will seldom, if ever, buy any off-brand product — while hardworking Americans are penny-pinching with their grocery bills? When have any of you seen someone with food stamps use cost saving coupons? I’m telling you that those who do are as scarce as hens’ teeth.
But there is a bright side for me in this government fiasco. I tip my hat to those of you who penny-pinch with your grocery bill to help supply Little Mary’s mom with food stamps so she can buy Blue Bell ice cream and give some of it once in a while to my daughter, Cecilia!
In Johnny Cash’s great song “The Legend of John Henry’s Hammer” (inspired by American folklore hero/railroad worker John Henry), one of the great man vs. machine showdowns takes place.Accepting the railroad boss’ challenge that he can’t outpace the latest in technology, a steam drill that threatens the railroad workers with obsolescence, “steel-drivin’ man” John Henry defiantly proclaims
“A man ain’t nothing but a man
But if you bring that steam drill ’round, I’ll beat it fair and honest
I’ll die with a hammer in my hand
But I’ll be laughing, because you can’t replace a steel drivin’ man
Although we’ve become accustomed over the years to technological improvements making things better, faster, cheaper, and putting entire classes of jobs on the endangered list (run into any blacksmiths lately?), it nevertheless is a shock to the system when technology invades the realm of professional judgment.Imagine, then, the controversial prospect of using computers to analyze legal cases, craft arguments, and decide whether, where, and how to file a lawsuit.Will databases jampacked with information and algorithms predicting what will happen render trial lawyers like me as obsolete as John Henry?That day may be closer than you think.
The field of “quantitative legal prediction” combines databases with algorithms that can analyze variables, identify patterns and factors that affect outcomes, and then predict those outcomes.One company, for example, is Lex Machina, a startup that originated from the IP Litigation Clearinghouse at StanfordUniversity.Lex Machina uses its database to analyze settlement patterns and win rates.To do so, it first had to accumulate a vast amount of information, and so today its database contains information from 128,000 intellectual property cases, along with records from 63,000 law firms, 134,000 attorneys, 64,042 parties, and 1,399 judges, spanning the past decade.But data alone is not enough; Lex Machina’s co-founder, Joshua Walker, estimates that it took a team of engineers and lawyers about 100,000 hours to correctly categorize, tag, and code the information.
Since a company’s intellectual property often represents a significant portion of its value, corporations invest a great deal in obtaining and protecting things like patents.However, patent litigation is expensive—some studies have concluded that the average cost to take a patent infringement case to trial is as much as $5 million.That’s where quantitative legal prediction comes in, says Walker.For a fee, Lex Machina will crunch the numbers and provide a client with insight into costs, win rates, settlement patterns, etc.Walker believes that this technology will “revolutionize how corporate finance looks at litigation,” and will significantly impact how companies value and manage their intellectual property portfolios.
Another company trying to realize the potential of this technology is TyMetrix, a vendor of electronic billing and case management systems for corporate law departments.TyMetrix’s data warehouse boasts information accumulated from $25 billion in legal spending, and the company uses analytical tools to mine that information and help forecast legal costs.For example, a general counsel at a given company can better manage legal costs with an analysis that incorporates variables like the size of the law firm, its geographical location, the attorney’s title and years of experience, and his or her specialty area.Yet predictions are only as good as the amount and quality of the data on which they’re based.To be as accurate as possible, you have to collect vast amounts of data.Even TyMetrix is limited, since it gathers only certain types of information, and only from clients who have opted to share that information.
The legal profession has been quietly moving toward a greater reliance on technology for some time.Large, complex cases spawned the e-discovery industry, and within the e-discovery field “predictive coding” uses algorithms to analyze large quantities of documents (but not necessarily all) and predict which ones are likely to contain information relevant to a given case.For years, trial lawyers (myself included) have made use of courthouse and private databases to research verdicts and reported settlements in order to help assess the potential value of a lawsuit, or to study what juries in a given locale have historically done.But is lawyering in danger of being reduced to mere actuarial formulas?Daniel Katz, a professor at Michigan State University College of Law who has studied the impact of technology on the practice of law, says predictions made by computers are “not going to end lawyering . . . but I definitely think some percentage of tasks that lawyers do are going to be replaced by machines and/or technology.”
I’m not ready to bow to our robotic overlords just yet.Sure, I research verdicts to help me evaluate a case, and I bring my laptop or iPad to trial to have all kinds of information at my fingertips, just a few mouseclicks away.But as far as I’m concerned, there’s no substitute for the cumulative experience of a seasoned trial lawyer who’s stared down countless witnesses or looked into the eyes of hundreds of jurors over the years, and the insight that comes from doing that.All the technology in the world can’t substitute for reading the “tells” of a shaky witness, or the body language of the jurors.So, I guess I’ll go out like John Henry, with my hammer—or at least my legal pad—in my hand.
What better way to mark the end of summer (as we send children back to school, return from vacations, and otherwise face reality) than with an acknowledgment that the litigants and controversies populating the legal system remain just as offbeat as ever?Here are a few gentle reminders of our system of “law and disorder.”
In Easton, Pennsylvania, Dave Gorczynski learned a lesson about taking things too literally.The bearded, ponytailed young man was participating in an “Occupy Easton” protest (a far cry from Wall Street) in August at a local branch of Wells Fargo Bank.Trying to send a message about predatory lending practices, he was holding up signs saying “You’re being robbed” and “Give a man a gun, he can rob a bank.Give a man a bank, and he can rob a country.”He later did the same thing at a Bank of America, where a bank employee notified police.Taking him a little too literally, Easton police arrested Gorczynski and charged him with attempted bank robbery.He was released on bail, but still faces two felony charges.Easton Police Chief Carl Scalzo maintains that his officers acted appropriately, evidently not getting the fact that Gorczynski was taking part in a political protest.
Maybe Gorczynski should adopt the “I forgot” defense.Years ago, comedian Steve Martin joked that the foolproof way to get out of any criminal wrongdoing was to simply maintain that you forgot the act was illegal—the “I forgot” defense, if you will.Maybe Sydney, Australia lawyer Michael Sullivan remembered that long-ago sketch.Sullivan recently persuaded a judge that he suffers from “dissociative amnesia” and that the condition caused him to assume the identity of an art thief, yet not remember his actions.In December 2008, Sullivan was dining at an art gallery restaurant when he made off with two paintings valued at $14,500—an event recorded on the gallery’s security cameras.Police later found both paintings hanging up at Sullivan’s home, and Sullivan tried to tell them that he had paid a $2,000 deposit for the artwork and planned on paying the gallery the balance.Acknowledging that this “is a somewhat bizarre case,” defense attorney Tony Bellanto nevertheless produced two psychiatric reports on behalf of his 54 year-old client, claiming Sullivan simply had no memory of committing the theft.Judge Jennifer English accepted the odd defense, setting Sullivan free on a 2 year good behavior bond.
From being caught red-handed robbing an art gallery to having a bunch of evidence documenting one’s crimes, you’d think that having too much evidence would be a nice problem for most prosecutors to have.Not according to Stephanie Rose, the U.S. attorney for northern Iowa.She recently asked a federal judge to dismiss charges against a fugitive doctor charged in what was the country’s largest internet pharmacy prosecution.Over a 9 year investigation, prosecutors had accumulated over 400,000 documents and two terabytes of electronic data in their case against Dr. Armando Angulo, a Miami-based doctor who fled to his native Panama after his 2007 indictment for selling prescription drugs to patients he never saw or examined.The evidence in the case—which helped close down two internet pharmacies and helped convict 19 other doctors as well as other defendants who had illegally sold some 30 million pills—was simply too voluminous.The two terabytes of data—the equivalent of the text of 2 million novels—was taking up 5% of the DEA’s worldwide electronic storage.Since Panama doesn’t usually extradite its citizens, maintaining the government’s case against Dr. Angulo constituted “an economic and practical hardship” for the DEA, according to Ms. Rose.A federal judge agreed and dismissed the case—not for lack of evidence, but in this case, too much evidence.
I’ve written before about how failure to proofread legal documents carefully can result in expensive mistakes.As it turns out, city officials in Santa Clara, California may have made a $548 million mistake, all over two words.A proposed ballot measure to renew a $548 million tax allowing the local water district to maintain the city’s water supply featured a 77 word summary—a violation of election laws mandating no more than 75 words.When the water district board realized its mistake, it was hastily corrected—perhaps too hastily, as it turns out.Apparently, the meeting at which the corrected summary was approved missed the requisite notice period required under California’s open meetings law by less than an hour.Oops!Now a local taxpayers group is threatening a lawsuit unless the measure is taken off the ballot.Sounds like two little words and what city officials call a “minor technicality” may have a half-billion dollar impact.
What ever happened to the concept of “don’t kill the messenger?”City officials in the Belgian seaside resort town of Knokke plan to sue private weather service Meteo Belgique for incorrectly predicting bad weather in August.Mayor Leo Lippens says the flawed forecast hurt the town’s tourism trade.He says the weather service should be “financially responsible” for such “public disinformation.”
Jessica Angel and Colin MacKenzie of Adelaide, Australia love each other—perhaps a bit too much.The couple is facing a $4,000 fine for violating South Australia’s Environmental Protection Act of 1993, which includes noise pollution.It seems the couple have been having noisy sex—and lots of it—to the point where police have made 20 visits to their apartment.At one point, an “Emergency Environmental Protection Order” was served on Angel and MacKenzie, decreeing no noise for 72 hours—an order reportedly ignored by the couple.Mr. MacKenzie blames his girlfriend.
Finally, if you had any doubt that the political correctness police running all too many of our schools have taken things too far, consider what’s going on in Grand Island, Nebraska.Grand Island public school administrators have a district rule banning anything in the school that looks like a weapon; apparently they interpret this to include children making a “stick ‘em up” sign with their fingers.As if this wasn’t ludicrous enough, school officials want 3½ year old Hunter Spanjer (who is deaf) to change his name because of this “zero tolerance” policy.It seems that in Signing Exact English (S.E.E.) language, Hunter signs his name by crossing his forefinger and index finger and moving his hand up and down.School officials, worried that this could be taken to mean something threatening (from a 3½ year old?), reportedly have asked Hunter’s parents to change their child’s sign language name.Lawyers for the National Association of the Deaf have already been in touch with Hunter’s parents about protecting their son’s right to sign his name.
It looks like school officials could use a remedial course of their own—in common sense.
I recently talk to a dear friend whose voice sounded shaken. Seems that her daughter was leaving to go to college and neither her nor her husband could come to grips with their daughter being away from home. As I tried to console her it dawned on me that for some parents who are attached to their kids, find it difficult to see their kids leaving them, especially if they’ve never been away from home.
After I hung up with my friend, I remembered my first day in school, a day I will never forget! I cried my lungs out as mom — bless her heart — tried everything possible to make my first day in school a pleasant one. I was especially frightened of Sister Benigna, my first-grade teacher at San JoseCatholicSchool. Back then (in the late 40s), the attire of the Sisters of St. Mary of Numur, was something that would make any kid’s knees buckle. However, after a few weeks, she dispelled my fears with her gentle, yet stern discipline.
After trying several methods of comforting and alleviating my fear of school on that first day, mom asked Sister Benigna if she would allow my younger sister, Cecilia, to sit with me in class for a week until I got used to being in school. She agreed. Well, with Cecilia sitting next to me in class, I changed my attitude, forgot my fears and went on about the business of school. Though my sister was a year younger than me and was supposed to be in school for only one week, Sister Benigna allowed her to stay. The both of us graduated from high school in 1956. My sister can thank my unrelenting tears in first grade for her early graduation.
Of my three kids, only one of them cried on their first day in school. It was my middle child, Michele. Just like my mom, I tried everything in the world to make her first day in school a pleasant one. Nothing worked. My son, Larry, who is older, was already in middle school when she started the first grade and wasn’t there to help her with her fear of school. I still remember the pain I felt in my heart when I left Michele crying aloud as she was held back by her teacher. Her sobs and shouts, “Daddy! Daddy! Please don’t leave me,” echoed through the school hallway and broke my heart. I remember that I cried all the way to work, thinking of her. I knew then how mom must have felt when she heard my cries on my first day of school. That evening, I asked my wife to quit her job or take some time off to be with Michele in hr first class until the youngster was used to it. My wife’s boss gave her some time off, and in a few days everything was all right. But Michele never grew to really like school.
On the other hand, my youngest daughter, Cecilia, was the opposite. She was very active and in high school was elected as a cheerleader for four straight years. As a senior, she was elected class favorite and homecoming queen that year. To be honest with you, my wife and I never thought that her high school’s predominately white student body and teachers would choose our brown and beautiful daughter as homecoming queen. That goes to show you how much we knew about our daughter’s personality and her friends at school.
However, her school activities didn’t come without some discomfort to us. Her friends and involvements almost drove my wife and me to the point of running away from home. You parents know what I’m talking about. Yes, that darn telephone (before cell phones came along)! Throughout the week, after school, late at night and especially on the weekends — that telephone rang constantly. My wife and I didn’t even want to answer it because we knew it wasn’t going to be for us. Or, if we did, we just said, “She’s not here. Do you want to leave a message?” After a while that got real old with us.
One time, the phone must have rung at 3 a.m. “Is Cecilia home?” asked some young boy. “Sure,” I said angrily. “But try calling at a decent time like the year 2025.” After that I asked him for his dad’s name and phone number and told him I was going to call his dad at 3 o’clock and ask to talk to his son. Funny, he never bothered us again.
After Cecilia graduated from high school she decided to attend TWU in Denton to embark on her nursing career. I remember my wife and I driving her to the university and helped her take some items for her room at the dorm. After we got her things in the room, she walked back to my pickup with us. This was the first time our daughter had ever been away from home. As I drove away, I could see her in the rear-view mirror. Though I held back my tears, I wanted to stop and shout at her, like I shouted at my mom so many years ago: “Please don’t leave us! We won’t even care what time your friends call you.”
Today, my wife and I, and yes, even Cecilia, are again going through the same school process we went through with our grandkids!