Archive for December, 2009

Personal Ads

December 28, 2009

Apparently the London Review of Books now twitters its famous personal ads. If you’ve never run across the ads before, many are hysterically funny. And, if this really is the Review’s twitter account, we in the Colonies no longer have to buy a subscription and wait for weeks while the hard copy of the Review makes its way across the Pond to us.

Just for fun, while we wait for New Year’s, are some examples:

Cold? Sexually hostile? You’re my PhD supervisor or my ex-wife. Good day to you both. The rest of you can say something nice to box 3678.

You’re all invited to my wedding! One lucky Male will also be picked as groom! Clutching Female,41. Not getting any younger/thinner/more fertile.

Nepenthes rajah: insectivorous pitcher plant with a trap so large it digests rats. I find it a continual source of inspiration. Female, 34.

There are 289 species of octopus. I can, and will, name them all during the act of love. Male, 58. Box no. 6759.

Should any of my readers feel an urge to respond to any of these personals, I’ll be happy to forward them for you.


The Cleaning Lady and the Spider

December 24, 2009

The Independent Contractor

I’m in the midst of a scientific study. A month ago I discovered the beginning of a spider’s web in our guest bathroom and immediately decided that it was the proper subject for an experiment.

The experiment?  To see how long it would take our cleaning lady to discover the web.

To begin, you should know that the law contemplates two different kinds of workers: “Independent contractors,” and “employees.” If you control the “details” of your worker’s performance — things such as when they are supposed to arrive for work and when they leave, what they do while working, etc. — then the worker is your “employee.” On the other hand, if the worker chooses her hours and what she does while working for you, with you imposing only general guidelines and not the details of her performance, then the worker is an “independent contractor.”

I control absolutely nothing about our cleaning lady’s performance.  She arrives on a day of her choice; at the hour of her choosing; stays until she feels like leaving, and, while she is here, does whatever she wants.  (With one exception: the first forty-five minutes she plays with the dogs.  They, at least, exercise some control over her activities. I certainly don’t.)

What’s more, she hides my toothbrush and toothpaste each week. And, if I have carelessly left them lying about, my moccasins and any book I happen to be reading are hidden as well. After she left last week, it took me fifteen minutes to find the book, ten for the moccasins, but only one for the toothbrush. She must not have been at the top of her game.

This week she arrived while I was watching an on-line continuing legal education program about good writing for lawyers. Each year, lawyers in my state are required to complete a certain number of hours of continuing legal education programs.  Mainly this is to fool the public and, not coincidentally, to keep several people employed in an otherwise unnecessary bureaucracy. It also keeps a cottage industry going: Lawyers who can’t make a living in the real world travel around on the seminar circuit telling other lawyers how to do it. And, because every lawyer has to have a certain number of hours of these seminars every year, there is a paying, captive audience for these people whenever they go out on a raid.

Famous Trial Lawyer Perry Mason

Early in my career as a trial lawyer. I attended a seminar about trying cases taught by one of the national stars of the lecture circuit. During a break another lawyer asked me, “If he knows so much about trying cases, why isn’t he out there trying cases?”  A couple of years later the lecturer actually tried a high profile case that made all the newspapers. He lost.

The idea behind the continuing legal education requirements is to assure that lawyers maintain a certain minimal level of competence. It works about as well as the cleaning lady. Good lawyers stay up-to-date notwithstanding any silly minimum requirement of annual seminars and bad ones don’t.

Not only are we required to have a minimum number of hours, we must have two hours of “ethics” instruction and one of “professionalism.” (Given its control over the details of our performance, we must be employees of the state Supreme Court.)  Nobody can tell the difference between the two. As best I can tell “professionalism” means being polite to everybody, especially the judges who write all these rules and “ethics” means not cheating.  Why we need three hours of instruction annually about that is a mystery. Good lawyers are ethical and professional and bad ones aren’t. No amount of instruction is going to help.

The Hawk's Book on How to Write

But, there I was, in my home office, listening to the “How to Write Like a Lawyer” seminar on my computer when the cleaning lady arrived. (Actually, to be precise — and the lecturer told me to write with precision— I should write, “attempting to listen.” Our bar association must still be using MSDOS. The program was always “buffering” during the most interesting parts. Oh, who am I kidding? There were no interesting parts. The guy didn’t even know he was in the home of Professor Henry Weihofen, or as we called him, “The Hawk.”  He wrote the bible about legal writing and the lecturer mentioned him not once.)  Anyway, I was trying to listen when, like I said, the cleaning lady arrived. This caused the usual eruption of noise from the dogs because she truly is their favorite human being. I thought the noise might be sufficient to destroy the spider web so I went to check.  Although vibrating furiously, it stubbornly clung to the wall and ceiling. That spider does not need any “continuing web-building education.”

Returning to my seminar, I learned — over the noise — that when I write a brief I  am supposed to outline it first, then write a detailed statement of all the facts in the case and, only then, begin arguing my case. That’s nonsense. Any lawyer who waits until half-way through her brief to start arguing her case might as well turn off her computer and go home. You start arguing your case in the first sentence of the brief. If you haven’t convinced the judge by the time you get to the “argument” section of the brief, you’ve failed and no amount of continuing legal education is going to help you or your client.

Anyway, the spider web is still there and getting larger. I suspect that generations of spiders will grow old in it. I’m going to start putting my toothbrush and books in it before the cleaning lady comes.  Then she can’t hide them because she won’t see them.

Circumstantial Evidence

December 21, 2009
egg shell

Circumstantial Evidence

Circumstantial evidence, said Thoreau, is when you find a trout in the milk.

Conclusion based on the evidence? Someone put the trout in the milk.

That chain of reasoning goes like this: Trout do not ordinarily inhabit milk so, if you find one swimming in the milk, a human must have put it there.

Likewise, circumstantial evidence is when you find half of a raw egg-shell in the silverware drawer.

Conclusion based on the evidence?  The dog ate the eggs.

That chain of reasoning goes like this: I left the fresh chicken eggs in a basket on the counter, just above the silverware drawer.  I have a dog that has recently taken to jumping on the counter.  Four eggs are missing this morning and only one half of one egg-shell is left.  In the silverware drawer.

As our friend, the breeder of our dogs says, “Border Collies know 150 commands and make you perform them perfectly.”  One of the commands is. “Don’t leave fresh eggs out overnight.  They belong in the refrigerator.”

More News You Missed

December 17, 2009

This news from the Santa Fe New Mexican:

Hugo Mendoza-Terrazo,20,no address given, was arrested on suspicion of DWI after a deputy observed fresh damage to his vehicle with a tree branch attached to it.

Lawyers’ English

December 13, 2009

I confess to being a lawyer. Like all other careers, lawyering is an honorable calling, if pursued honorably. And most, if not quite all, the lawyers I’ve known pursue the profession honorably and are honorable people who, by the way, do their fair share of pro bono work.

Not that you would know it from the demand we get each year from our bar association to pay up our dues and fees.

English Lawyer

In my state we have an “integrated” bar.  “Integrated” is a perfectly good word tossed in there by lawyers to confuse you.  It does not have its usual meaning at all.  Of course, our bar association is racially, religiously, and sexually integrated. But we lawyers also use the word “integrated” to mean “involuntary.”  In our state, unlike some other states, we have no choice but to be members of the state bar association.  It is the entity through which our Supreme Court exercises control over us. The court “integrates” its control through the bar association. Whether we want to or not, we are compelled to fork over $500 or so dollars every year to our bar association.

Each year about this time, we are reminded of our duty to pay when the bar association sends us our “Dues and Licensing Form.” (If we don’t pay our dues, they yank our license to practice law.  That’s the “involuntary” part.)

On the outside of the form, emblazoned in huge, bright red letters is the legend, “ACTION REQUIRED.”  That the bar association feels a need to put that alert on a mailing indicates a lack of confidence or even panic on their part. They must assume that everything else they send us gets quickly and unceremoniously tossed in the trash.

The entire document has a peremptory air about it. My personal favorite is Section 3 — and I am giving you a precise quotation here, less my reputation for veracity of statement be questioned:


That will not do. It’s a preposterous sin against the English language and lawyers, whose primary tool is the English language, ought not be subjected to such an outrage by an organization to which we are compelled to belong.

We begin with “pro bono.” It’s Latin, of course and it basically means “for free,” although when lawyers use it as a term of art, we mean work performed without compensation for the public good. I’ve never known a lawyer who did not voluntarily do pro bono work every year.

But look here: The bar association does not require us to report the pro bono work we actually do: It only demands that we report our “aspirational [sic] goals.”

Well, this year I have three:

1. I aspire not to aspirate any food. I don’t want any “aspirational” food in my lungs, the stuff causes pneumonia.

2. I aspire never to use a word I just made up. “Aspirational” appears in none of my dictionaries and, if there is a God in Heaven, it never will. Even my spell-checker recoils from it.

3. I aspire to never write a sentence so full of redundancy as “Mandatory Pro Bono Reporting of Aspirational Pro Bono Goals.”

If what they meant to say is, “Mandatory Reporting of Pro Bono Goals,” then let that be said. It averts both the redundant redundancy while satisfying, barely, George Orwell’s mandate that writers should not write anything avoidably ugly.

No wonder they worry that everything they send us ends up in the trash can.

Now, if you’ll excuse me, I’ve got to saddle up my trusty horse Pedantic and ride off into the sunset.


December 8, 2009

The Supreme Court is slow issuing opinions so far this term. That makes it hard on bloggers waiting to take the Court to task over its opinions.  To fill the gap, I have begun writing opinions for the Court.  Here is the first of this term.


City of Mudville, California v. The Great-tailed Grackle

[December 8, 2009,]

JUSTICE MILDEW delivered the opinion of the Court.

The town of Mudville, California, allows its citizens to bring private law suits to stop public nuisances.  The municipal ordinance defines a public nuisance as “Anything which is . . . indecent or offensive to the senses.”  The nuisance must, “Affect at the same time an entire community or neighborhood, or any considerable number of persons.”

Mildred Thoroughgood brought this lawsuit, demanding that the authorities of Mudville do something about the Great-tailed Grackles which live there.  The grackles, Ms. Thoroughgood claims, are “offensive to the senses” and must be eradicated.  A judge in Mudville agreed with her and ordered the birds extirpated.
grackle (2 of 3)
The birds appeal, asking this Court to reverse the judgment below and dismiss the case.

Great-tailed Grackles are large birds with, as the name implies, large tails.  They live mainly west of the Mississippi River of the United States and often dwell together in large flocks, like humans.  Foraging for seeds and insects, they go about making their living in fields and towns throughout the American Southwest and Southern California.

But, according to Ms. Thoroughgood, they make many unpleasant sounds.  Indeed one authority writes, “Song a series of loud, unpleasant noises: mechanical rattles, sliding tinny whistles, harsh rustling sounds, and sharp hard notes.”  (Sibley, Field Guide to Birds of Western North America, at 443)

No evidence to the contrary appearing, this Court accepts as fact that they make unpleasant sounds. We also note that even the renowned Cornell University refers to the poor birds as a “pest species.”

If that were all the evidence, we might be inclined to uphold the decision of the Mudville court that grackles are a pain and should be eliminated.  But that was not all the evidence.

grackle (3 of 3)
The grackle population appears to grow with the human population.  This makes Great-tailed Grackles, like pigeons, an inevitable by-product of the rapid growth of the American West.   Like people, grackles find irrigation and urbanization beneficial. The only way to get rid of them is to get rid of the people.

Grackles are good parents too.  Most of the parental duties, it is true, are left to the females but males fiercely defend their nestlings and fledglings.  Interestingly, more females survive the first year than males.  That may explain the transient nature of their pair bonds and the flamboyant mating behavior of the males.  Nobody knows for certain how long they live, but one banded male lived for twelve years.

Finally, we find the testimony at trial of The Fat Finch persuasive.  Those people had a female Great-tailed Grackle living in their yard which has lost a leg.  This one-legged female  successfully reared offspring.  Her fledglings didn’t seem to care that she has only one leg and neither does she.  Such tenacity in the face of adversity should be rewarded, not punished.

One-legged Grackle

The law of nuisance, as William Prosser once wrote, is an “impenetrable jungle.”  If grackles want to live in that jungle, let them. We discern in this case application of that old legal maxim, “The law disregards grackles.”

Accordingly, we reverse the decision below and order the case dismissed.  Let the grackles go.

JUSTICE SCALITO, dissenting.

I hate nature.  I never go outside if I can avoid it.  I used to play tennis outdoors but found the unfiltered air disagreeable.  Moreover, I’ve never been west of the Mississippi and don’t intend to go.  Therefore, I am completely disinterested in the fate of Great-tailed Grackles.

But, because I hate nature and grackles are a part of nature, I hate grackles.  If the government wants to eradicate them I find nothing in my copy of the Constitution preventing it.


UPDATE: The Supreme Court not only follows the election returns, it follows this blog.  Immediately after my opinion in the grackle case was posted the Court issued four opinions.  All about boring legal issues.  You can get to those opinions via this link but, trust me, mine is more interesting.

A Message to Climate Scientists

December 6, 2009

Here, from Khalil Gibran, is a brief word to those climate scientists – and anybody else for that matter – who think their email is private:

Words are timeless. You should utter them or write them with a knowledge of their timelessness.

Or, as I always remind my jurors in cases where a piece of documentary evidence ought to determine the outcome, here are the words of  Omar Khayyám in the “Rubáiyát”:

The Moving Finger writes; and, having writ,
Moves on: nor all thy Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all thy Tears wash out a Word of it.

Of course, nothing in those stolen emails affects the basic data.  The earth’s atmosphere contains about 387 parts per million of carbon dioxide, higher than it has been for at least 15 million years.