End of the month at the end of my rope

SBC (or AT&T as the Texans now like to be known) took pity on me: Both my old numbers now funnel into my new one, here at the latest undisclosed location. And I've unpacked now, mostly. In fact, I got ambitious enough yesterday evening to check my voice mail: And when I did I found that the $100,000 check, a check that might someday be a running gag, but is now a running sore, was returned -- again -- because the paying bank didn't like the way my bank accepted the check for deposit.

My bank must have called my new office number. I had a voice mail on that line warning people that the move had not yet taken place and that, if it was something important, they should call me at my old office. But the bank didn't call the old number, the young lady from the bank just left a message waiting for me to find last evening.

Maybe a $100,000 returned check is not that big a deal to my bank -- even though it plunges my client fund account some $25,000 or more in the red. Maybe my bank figures it shouldn't be a big deal -- and it shouldn't have been. My bank guaranteed of the absence of an endorsement on this check, based on its possession of a check authorization -- a long, long awaited check authorization. But I reluctantly conclude that this must be a big deal after all -- because the paying bank doesn't want to pay.

Who would? Why pay money out when you can use it indefinitely by jerking some small time operator around?

But in the meantime -- well, I had drawn on the funds. I've already spent the money. I sent my client her share. I took my share and gave it away to various and sundry creditors.

And I wrote a great big check on that same client fund account to pay a contractor in a different case. Most of the money that remains in that account is there for that different case -- and some of that money needs to be pulled out. But, right now, that can't be a good idea.

This, I can assure you, is a bad state of affairs. As the name implies, client fund accounts don't belong to the lawyer. They belong to the clients whose funds I'm supposed to safeguard therein. Sometimes some of these funds may become my fees. Eventually. But people can lose their license to practice over mismanagement of these types of funds. I haven't mismanaged anything: I've been shafted by a bank. But I don't want to have to explain the circumstances to the appropriate authorities: I just want the problem to be resolved. We shall see.

Ah, what a month January has turned out to be. I lost a week to the worst cold ("upper respiratory infection") I've had in years. I've stressed over the extreme absence of funds, finally breaking the drought in mid-month (or so I thought at the time). I've packed. I've moved. I've sent out notices about moving (and more must still be sent). I've replaced lost ID and charge cards. And I have billed hardly any time at all. Right now -- if you can overlook the $100,000 debacle -- things aren't too bad. (Of course, that's like saying if you can overlook the Himalayas, Tibet is a very flat place.)

But I have to assume that we'll get past this $100,000 issue eventually. What will compound these difficulties is that I have no current time to bill now. Bills that would be paid in March or April. So March and April figure to be just grand.

And the Old Curmudgeon is self-employed. I just sent in my quarterly payroll returns -- and paid my annual unemployment tax.

Now, I have no employees. Just me. And employers pay unemployment tax as a hedge against their employees someday making unemployment claims. So does that mean I can lay myself off and collect unemployment? Heck, I've paid for the privilege, after all.

Bet you already guessed the answer.

Darn it.

Somehow, I've offended the Texans

I didn't mean to do it and I'm not sure how I did it -- but I must have done it because anybody calling my old phone number -- you know, the one listed in Sullivan's or the telephone book -- is telling callers that the number has been disconnected and no further information is available.

This is the nightmare scenario I'd labored so hard to avoid.

I was going to write about moving to my new undisclosed location, thinking how cute I was being in this regard, the anonymous poster in his new undisclosed location... perhaps the bit is tired for those who have cruised the blogosphere for a long time, but it's new to me. Now, however, my location is undisclosed even for those who know who I am. Yikes.

I'm on hold to SBC even as I write this, looking to lodge an official (but entirely submissive)protest. I don't want this new number to be disconnected as well....

It's Moving Day

Some of the top of my desk is now visible. Iron Mountain came this morning and picked up the 30 boxes I packed for outside storage. The shredder just left (although they'll be back momentarily, I'm told, looking for a check). (The total came to 18 boxes -- I put another one together after I wrote about it.)

Boxes are everywhere, particularly in the hallway outside my office. Patrick, who works for another tenant here, said the hallway looks like one of my arteries.

He may not be far wrong.

One of the attorneys who's moving with me has been packed for a week. The cleaning lady commented favorably on his state of preparation last night, suggesting, I reluctantly conclude, a sharp contrast between his state of preparation and my own.

Another of our party has just arrived at the office, and is even now beginning to pack. I did say beginning. He has, however, less to move than the rest of us.

And the ringleader of our traveling circus, the attorney who has taken on his own shoulders much of the planning of this move, and the concomitant fretting, is threatening to lose it at any moment. I've asked him to hold on until noon, or better, 1:00 p.m. By that time, I suspect, I shall be too far gone in my own panic to notice.

The movers arrive at 4:00 p.m. and, if I survive this, I shall return to this blog next week from my new and improved undisclosed location.

This morning's post too geo-political for you?

Well, these are dangerous times, and sometimes my strong opinions bleed through the light and frothy tone that I generally try to maintain.

You try being a both a lawyer and funny at the same time: By the time you finish inserting all the necessary qualifications and weasel words, much of the yuks have been leeched out of the text.

I have seen one "legal humorist" that usually makes the grade: Sean Carter has a regular feature in the ABA "e-report." I hate him, of course -- but only because I believe he's getting paid for his efforts and I'm insanely jealous.

Roland Burris, the former Illinois Attorney General, once said that most lawyers were like "jackleg preachers" (that is, preachers without a pulpit). And, as I have demonstrated even in this short blog through even date herewith, I sometimes sermonize.

And a lot of lawyers think they're writers -- Scott Turow has a host of imitators scribbling in longhand on the train home each evening. Of course, I hate Turow, too -- nothing personal, only that he's been so successful. And I am a little concerned by the fact that he's still practicing law. On the other hand, I think it was Turow who told the story of going to a writer's workshop: He wanted to learn to write like Hemingway; everyone else there seemed to want to learn to drink like Hemingway. Anyone who tells a story like that can't be entirely bad.

But Messrs. Turow and Grisham have cornered the market on legal thrillers. I'm more interested in the absurdity of the practice. And I'd really be interested in getting paid for it.

Hamas wins an election

Well, we said we wanted democratic elections in the Middle East, right?

The Palestinian elections just concluded will provide a serious test of our resolve. Did we mean it or not?

The problem with democracy is sometimes we may not be happy with the results of the elections. We're not always happy with the outcome of the elections here. At least, I'm not always happy. Or even usually happy.

The Bush Administration is starting off on the wrong foot already with the Palestinian victors: It wants to continue shunning Hamas. That is a mistake. What we should be saying is, "Welcome to the process of governing -- now you will learn the meaning of the phrase 'be careful what you wish for.'"

I can see friends of mine gaping at me in horror: Don't I know that Hamas is publicly dedicated to the destruction of Israel?

Yes, I would reply, if only given a chance, of course I know this: But I also know that Fatah was equally dedicated, just hypocritical about it. For Western media consumption, Arafat and his successors would denounce terrorism and violence. As soon as the TV lights were off, they'd go back to preaching hatred. Does that really make a difference?

Fatah lost the election because it did not deliver. It did not improve the lot of its citizens. The only people who prospered were those closest to Arafat, not that I'm suggesting corruption or anything. The standard of living in Palestine has been in free fall for years. Hamas became popular because it did not make any pretense of offering peace to Israel. But Hamas also became popular because it provided services where Fatah would not or could not.

But Hamas was not responsible for Palestinian poverty (except, of course, to the extent that its constant terrorist actions invited military reprisals from the Israelis.) Until it actually comes to power, Hamas hasn't even been responsible to the Palestinian people for inviting military reprisals from the Israelis: Fatah, as the de facto government of Palestine was responsible for not shutting Hamas down.

But now Hamas is responsible, whether it acts responsibly or not. With responsibility will come change -- or more tragedy for the Palestinians.

In these elections, the Palestinians' real choice was between two war parties. If democracy is really allowed to proceed after Hamas takes over (never a foregone conclusion in that part of the world), an opposition to Hamas would develop. It may be a reformed Fatah. It may be something else. But maybe this time the opposition will be interested in experimenting with peace.

But that's wishful thinking. In the meantime, there's an old saying about the value of keeping your enemies close to you, where you can see what they are up to. So let's welcome Hamas -- and keep really, really close tabs on what it does.

Judge Alito, Senator Kennedy, and playing the Lotto

The Senate Judiciary Committee advanced Judge Alito's Supreme Court nomination to the Senate floor by an entirely predictable, and entirely predicted, party line vote.

As this event shows, some future events can be predicted with near absolute certainty.

To cite another example, after they sacked the Panthers' quarterback eight times in a November game, it was a cinch and a certainty that the Chicago Bears would whup Carolina when they met again in the NFL playoffs.

Oh, wait, that one didn't work....

Well, to pull up another quick example, with a payroll in excess of $200 million, it was a foregone conclusion that the New York Yankees would steamroll over the American League and then destroy the National League representative in this past year's World Series.

Oh, wait, that one didn't work either....

Nevertheless, in announcing against Judge Alito, Senator Ted Kennedy predicted that Judge Alito would become a pro-administration stooge if confirmed to the Supreme Court. He said, "The record demonstrates that we cannot count on Judge Alito to blow the whistle when the president is out of bounds. He is a long-standing advocate for expanding executive power, even at the expense of core individual liberties."

And it might happen.

But don't bet on it. Life tenure with no hope (or fear) of promotion can change a person. As wartime Governor of California, Earl Warren ordered the internment of Japanese-Americans. Hugo Black was a member of the KKK. John Paul Stevens was appointed by Gerald Ford. Earl Warren was appointed by Dwight Eisenhower. Neither expected that their nominee would become a liberal icon.

Predicting the future is not easy, no matter what the Democrats (or the Republicans) on the Senate Judiciary Committee may think. If it were, we'd all win the Lotto every week, or at least every other.

The garbage has been repacked

I'm getting ready to move.

In the course of nearly 26 years as an attorney I've only moved offices six times. The firm that I had clerked for during law school and which had then hired me as an attorney was moving to new quarters when I finished the bar exam -- I had very little to do with that one. I had more to do five years later when that firm bought a building in River North, but not a lot more.

The firm grew and we took satellite space in a building a block away, next to (as it turned out) a women's prison. I didn't know there was a women's prison next door when I volunteered to move to the new space, but all that involved was moving my computer and files over. The office was either furnished already or the firm arranged for furniture to be brought in.

And the women's prison -- more of a halfway house, actually -- was nothing like what you might see on late night cable TV.

But that wasn't the reason why I moved again, just a few years later. No, I thought I would be a great success out on my own in the cold, cruel world.

I didn't have a clue.

And I didn't take a thing, not one single file. So there wasn't much involved in that move. Physically, anyway. (A file later followed me, but only one. It is significant to this story, but not for awhile yet. Be patient.)

I joined up with a college classmate and set up shop in the attic of the converted house he was using as an office on the far South Side of Chicago. For the first several months about all I did was watch the Rock Island trains pull into and leave from the station across the street. But I watched carefully and, eventually, my practice grew... a little... and I began to forge new connections with people I'd known in my past life.

One of these people invited me to move downtown into his office. Although I maintained a tenuous business connection with my college classmate, and I still had my own cases, my real job was working files for my new landlord.

Moving to this new office was a cinch: I had a computer and a few boxes of files. I did it in one car load.

And what an office my new landlord had: On one of the top floors of a Class A building in the South Loop, with an unobstructed view of Lake Michigan. I sat with my back to the window the entire year I was there. I knew that if I ever looked out the window in the morning I'd lose the entire day.

Unfortunately, my landlord was himself a subtenant of a very large, silk-stocking firm -- and the firm decided it needed the space for expansion. Move number six took me to my current location, only a block away from the other place -- I've written before about the inability to keep my phone number over even such a short distance. Because I had my own business, this move was more involved than any of the previous ones -- but I was still piggybacking. I dealt with the phone company and had to send out a bunch of notices to a bunch of places. I had to order new checks. But the movers came and I left. I set up my office the next week and continued on for five years.

Which brings us to today, on the eve of my seventh office move. I will be a subtenant no more -- and I discover just how involved moving really is. There's more to it than changing over the phones and sending out notices. There's more to it even than buying furniture (which I've had to do for the first time) or dealing with union movers.

I've been packing now for a solid week. Much of what I have accumulated during the past five years will not be going with me. Most of this is stuff generated from one single file -- the lone file that followed me from my old firm. (See? I told you it'd play a part in this story eventually). That one file grew, over the past eight years, into ten consolidated cases, three interlocutory appeals, a related Federal case, and a coverage case in the Chancery Court. My client was the target defendant in the consolidated cases. I settled all the claims against it but one, and that claim went to trial last Summer. There were over 50,000 pages worth of discovery from the plaintiff who did not settle. I had boxes and boxes of stuff regarding claims that had gone away. I packed 10 boxes worth of materials that I intend to keep, either because I want to or I have to. But I had no further use for any of the rest of it -- and there was quite a bit of that. There was no appeal from the trial verdict; the insurer was content to pay the judgment and let the litigation end. Nor did the insurer want to take any of this stuff off my hands.

So I had to figure out how to dispose of it. It was easy to pitch some stuff -- duplicates of pleadings, copies of cases. But some of the discovery materials were another matter. They were covered by a protective order and I had to make certain I did not run afoul of its terms.

My review of the protective order persuaded me that I could throw stuff out: It said the material had to be destroyed or returned at the conclusion of the case, but the method of destruction was not specified. Putting paper in the recycling bin will, at the end of the day, result in the complete destruction of that paper. Granted, there is always a chance that someone could snoop through my recycling before it was processed back into pulp -- but why would anyone want to? I am simply too unimportant for my garbage to be considered interesting by anyone.

Last Friday I commandeered every recycling bin on the floor, the large and the small, and I began throwing out mass quantities of paper. I filled all the blue bins to the brim, lining them up along the wall outside my office like a row of toy soldiers and I went home Friday evening with a sense of accomplishment....

Only to return on Monday to find the bins all still against the wall. And still full.

I was glad I'd not gone in over the weekend. I had thought to go in -- and fill the bins up again. I would not have been pleased if I'd found them that way on Sunday after incurring the cost of parking. But there was plenty to do at home also, and I wound up doing some of that instead.

But back to Monday morning: My landlady came in while I was bemoaning my fate and cursing out the cleaning people and generally whining and carrying on. (My ex-landlord and I had both become subtenants of this lady's firm during the course of the past five years.) You know, she told me pointedly, if these materials contain confidential client information you really should have this stuff shredded. I pointed out that these weren't my client's confidences... but even I thought that sounded weak just as soon as I said it.

So I called a shredder. I still don't know if I really have to shred this stuff -- but there was some sensitive, personal information in this material -- and I really didn't want to call attention to it by, for example, calling the building and making special arrangements for throwing it out. That's the kind of thing that might make the garbage seem interesting. Or so I feared.

The shredder wanted to come by and look at what I was proposing to send out -- but he couldn't guarantee that he'd be here before the end of the week. And he wouldn't be taking my stuff with him -- he sends other people for that. They'd follow next week. But I'm moving on Friday, I whined, and the shredder came up with a different idea: If I could estimate for him the number of standard document boxes worth of stuff I'd have, he could quote me a price and I could sign a service agreement today, and fax it right back to him. So I guessed 15.

Good, he said, and the agreement followed in due course -- but he still wouldn't send the truck around before Friday. In the meantime, I still had every recycling bin on the floor jammed with paper.... and that wasn't going to go over well with my landlords or fellow tenants.

And that is how I came to spend all day yesterday repacking my garbage -- 17 boxes of it.

Happy Birthday Ben Franklin

Today is Ben Franklin's 300th birthday. The tribute in today's Chicago Sun-Times covered all aspects of Franklin's glorious career, leavening this somewhat with the observation that Franklin was something of a failure as a family man, largely because of the never-reconciled breach with his son William over the question of American independence.

It is an interesting fact of history that William Franklin, the last Royal Governor of New Jersey, chose to cast his lot with Britain even as his father became one of the greatest leaders of the independence movement. Surely William must have realized, because of the unfortunate circumstances of his birth (he was born 'on the wrong side of the blanket'), that he'd fare better as an American, and the heir of an American hero, than as an Imperial bureaucrat.

William was not a dullard: He assisted his father in his world-changing scientific experiments. And William had the formal education his father lacked. He was trained as a barrister in London while his father worked there as what amounts to a lobbyist for several of the American colonies.

It occurs to me that it was William's training as a lawyer in England that made it impossible for him to embrace the Revolution. It's not legal training alone that made it impossible for William to embrace the cause: John Adams was an active, important trial lawyer in Massachusetts before he became a revolutionary. Thomas Jefferson was trained as an appellate lawyer, though he did not practice. But Adams and Jefferson trained in America. The legal system they absorbed was American -- but William Franklin learned the English system, in England. I think something in his training made him unable to see any other alternative to the rule of English law, even though he surely would have fared better had he been able to.

Legal education may not always be a plus....

Divining messages from disasters could lead to dangerous conclusions

Proving that the interpretation of natural disasters as divine judgments is the not the exclusive province of the loony Right, New Orleans Mayor Ray Nagin yesterday suggested that the recent surge in violent storms along the Gulf Coast, culminating in Hurricane Katrina, represents a punishment inflicted by God on America (for our invovlement in Iraq) and on New Orleans in particular (because of black on black crime).

One hesitates to scoff: I certainly don't want to incur God's personal anger. Look what Pat Robertson said happened to Ariel Sharon. (Oh, wait, he took that back, didn't he? Not God, I mean, Pat Robertson.)

It's just that two things occur to me when I see these stories.

First, I believe that God could be a bit more clear in getting His message across, if indeed He intends us to send a message -- any message -- in hurricanes or tsunamis or strokes suffered by elderly, overweight politicians who are undertaking the stress of a national election at the head of an untested political party. If God were trying to tell us something specific, whether about Iraq, or western modes of dress, or anything else, God certainly has the ability to make the message unmistakably clear. My suspicion therefore is that God really isn't speaking to us at all through disasters or events.

Second, I can understand where God might be miffed at America generally or New Orleans in particular for a whole host of reasons. You might agree with me on this general statement -- and we might (and perhaps would) disagree as to what those reasons might be. But are our transgressions -- whatever you think they may be -- worse than those of others against whom God has not allegedly flexed His muscles?

Kim Jong-Il starves the North Korean people. Iranian President Mahmoud Ahmadinejad seems intent on taking his people to the brink of war so that he can acquire nuclear weapons (and probably not just for display purposes, either). Osama bin Laden is apparently still alive. Living in a cave maybe, but still scheming as to how he'll impose his vision of God's will on the rest of us. So God strikes down Ariel Sharon for retreating from some real estate mentioned in the Bible?

People right now are plotting to entice dupes to strap explosives to their torsos and detonate themselves in the midst of women and children or men looking for work. Slavery is still practiced in Africa (and maybe elsewhere, too). Central and South American militias, some with a professed left-wing ideology, some with right-wing, practice banditry and murder and extortion within their individual domains, harvesting death and despair for drug addicts in the U.S. and Europe. And God sends Hurricane Katrina to New Orleans?

If you see God's hand in New Orleans or in Ariel Sharon's stroke you must conclude also that God has stayed His hand against these others -- and ... well ... you can see (even if Mayor Nagin and Pat Robertson can not) where that logic must lead.

I think better of God than this. I pray that I'm right.

Follow up on posting re: Irish names in Cook County judicial races

I found this link to a story from last fall on the Irish Abroad site concerning the Frederick Rhine to Patrick O'Brien name change. The link is useful because it documents a number of other instances in which candidates have modified their names in an effort to secure election to the Cook County bench -- I'd forgotten about a couple of these.

There's good news for a change

I am pleased to report that the $100,000 check is no longer in my desk -- it has been delivered into the waiting arms of the banker, tenderly desposited in my client funds account.

That dark smudge you see on the horizon is caused by the heavy foot-treads of my creditors, breaking camp already, and marching, inexorably marching. . . . That cloud of dust will grow more prominent as the creditors come nearer. The army will arrive at the very moment I can draw on these funds -- but, right now, that's OK.

Why do Irish-sounding names attract voters in judicial primaries?

The musical response is, "I don't know why, but they do...."

I was something of a witness at the birth of this phenomenon, years ago, at a meeting of the CBA Operation of the Circuit Court Committee. This was a committee that chose its members -- not open to the general membership -- but (and not for the first time) I slipped by because my name was confused with my father's. He was a contemporary of most of the other members, many of whom were sitting judges, as the committee's title might suggest. They were too polite to admit their mistake in admitting me to their group, so for one year (and one year only) I got to attend the monthly lunch-time meetings.

One such was held the day after the primary election -- an election in which several slated candidates had gone down to defeat, beaten by persons (I think they may all have been men at the time, but I haven't researched it) with obvious Irish surnames.

Slated judicial candidates did not lose primary elections in Cook County, Illinois. I thought I'd stumbled in on a wake when I came into that lunch meeting: The members of the committee were in mourning for the aspirations of their friends.

From that day, 20 or so years ago, to this, the judicial primary election ballot in Cook County has looked like a Dublin phone book.

There's a new wrinkle in this old story, according to a story in yesterday's Chicago Sun-Times (link still live as of this morning) about Park Ridge resident Frederick Rhine -- who admitted he legally changed his name to Patrick Michael O'Brien because he hoped he might get elected Judge of the Circuit Court of Cook County under the new name.

Apparently the paper had reported the name change story last fall because yesterday's story referred to a prior article in which Rhine/O'Brien admitted that the name change "bothered his wife and some law partners... [but, he claimed] they also conceded he'd have better luck becoming a Cook County judge if he changed his name."

The writer of yesterday's article seems to be surprised that, after going to all this trouble, the newly minted Mr. O'Brien failed to follow through on his judicial aspirations: He did not file to be a candidate in the upcoming primary.

Please. The Sun-Times was obviously waiting in the weeds for him. Had he followed through, he would have been skewered. Even the Tribune might have picked up the story. (Every election cycle, about two or three weeks before the primary, the Tribune publishes one 'news' story -- and only one per election cycle -- highlighting one candidate who is spectacularly underqualified or who has raised too much money or who has done something controversial, as in our new Mr. O'Brien. In fact, one year, the Tribune's victim was a woman who changed her middle name to a very Irish surname, to go along with her husband's very Irish surname. She was not Irish -- and still isn't, in fact, although I personally don't think that justified the Tribune ridiculing her that year. Each of these Tribune stories closes with pleas for merit selection of judges attributed to a variety of worthies. The identities of the worthies changes; the angle never does. Then the Tribune follows with an admitted editorial in which it complains how little the voters know about the wanna-be judges -- remember, the paper runs only one story about the judicial primary -- and calls for merit selection of judges.)

You know what merit selection of judges is, don't you? That's where the politicians pick the judges directly without the inconvenience and uncertainty of an election.

The thing that the former Mr. Rhine has going for him is that the newspapers have a limited attention span. Don't be surprised if "Patrick Michael O'Brien" files for the primary in 2008.

I have particular interest in, and sympathy for, Mr. O'Brien because I have also harbored judicial aspirations. I ran twice in the primary. I did well with the bar associations -- was rated qualified or recommended and so forth -- and finished dead last both times.

When I ran the second time, my wife started house shopping. I wasn't around to object -- and, by the time I realized she was serious, she was ready to bid. "Look at it this way," she told me, "this way you'll have two lawns on which to put your signs." She wasn't far wrong about the total number of lawns on which my signs appeared.

So -- to get back to the point of this essay -- I've given a great deal of thought to why Irish-sounding names attract votes at primary time.

Note that I said "Irish-sounding." I actually have an Irish surname -- but it's not obviously Irish as in "O'Brien" or "Quinn." (My own stunning failures at the polls are attributable to this alone -- that's my story and I'm sticking to it -- although my absolute lack of any political connections can't have helped.)

Some have speculated that Irish surnames attract votes because the Illinois primary is held in such close proximity to the Feast of St. Patrick. I don't agree. I believe the best explanation for the phenomenon was advanced by the late Mike Royko: He said, all other things being equal, voters looking at a long line of names of persons they do not know on a primary ballot will vote for persons of their own ethnic group first. The Italians will vote for Italians. The Poles will vote for Poles. And the Irish will vote for the Irish. But, if no one in a race is from the voter's ethnic group, voters will choose an Irish name. That way, no Italian accidentally votes for a Pole. No Pole mistakenly votes for an Italian. Whether true or not, it's an explanation that fits the facts -- there are not enough Irish left to elect anyone on their own. But that's why the surname must be obviously Irish -- so Irish its unmistakable for the Poles and the Italians.

How to spend your Christmas vacation

The college students have been home for weeks now, cell phones going off at all hours of the day... and night... and in the wee small hours of the morning.... But it's almost over. Finally.

Oldest Son took advantage of the break to drive with four friends to Tempe, Arizona for the Fiesta Bowl. They went via Dallas, stopping at the home of the parents of a girl of their acquaintance. After the Fiesta Bowl, they went on to Los Angeles, to soak up the atmosphere of the Rose Bowl (meaning that they couldn't get tickets) and crash at another classmate's home. They went to the ocean, but it was chilly and windy. They went to Hollywood -- but were not discovered. They learned, first hand, about traffic on California freeways. One left the group there and flew home to Michigan, but the four remaining drove from California to the Grand Canyon and then back to Chicago, where they dropped off Oldest Son and recuperated prior to heading to their various Eastern Time Zone destinations.

Meanwhile, Older Daughter had foot surgery last week, attempting to correct a problem arising from a prior surgery. Tomorrow, she'll have a procedure performed on her other foot, shaving off a bone spur that makes it difficult for her to walk or wear shoes.

Some people just know how to live.

But, ah, you say, which one?

Forget "judicial philosophy" in taking the measure of SCOTUS nominee

Confirmation hearings for Judge Alito's nomination to the Supreme Court are underway and the chattering classes wait and wonder how the nominee's "judicial philosophy" will be revealed in the course of these proceedings.

What is a "judicial philosophy"? Judges apply the law to the unique set of facts presented by each case. In trial courts, judges may themselves be the fact-finders. In reviewing courts, the facts are generally established by the record, although there may be a legal dispute as to whether the fact finder should or should not have been given the opportunity to hear particular facts as part of the evidence. All courts, from the lowest to the Supreme Court of the United States are guided by precedent; while an intermediate court may 'recognize' a new principle of law, and thereby establish a new precedent, only a state's highest court or the United States Supreme Court ever get to change precedents. The constitutions of the several states and of the United States provide additional limits on even the highest courts' discretion.

If I believe that our common law represents a struggle to identify and apply natural principles of justice, that may be a philosophy, but how does it help me determine whether the health insurer's claim for reimbursement is governed by ERISA or by state contract law? How does it help you decide whether the general contractor's insurer is excused from providing defense or indemnification when the general contractor tenders its defense to the subcontractor's CGL carrier?

So philosophy is of limited assistance. So, too, is the frontal assault on which the Senate Democrats seem insistent: If Alito really were silly enough to venture any substantive predictions on how he might rule on any case that may come before him on the Supreme Court, he should be disqualified on that basis alone.

Here's what I think the Senate should really be looking for: Does this man have any common sense and has he ever rubbed elbows with the rest of us?

Judge Alito is clearly very, very smart. We want smart people for this job. But is he nice? Or is he arrogant and patronizing? I don't suggest that we should dispense with his testimony entirely -- but I'd think it more important to hear from his former law clerks, and from non-lawyer employees in office of the Clerk of the Third Circuit Court. What does his barber say about him? Does he eat lunch in the same place every day? What does the cafeteria staff think of him (or the waitstaff at the greasy spoon)?

What about the lawyers who've appeared before him throughout his years on the bench? I'd want to talk to the men and women who've lost cases on which he's sat, as well as those who've won: Did they find him well-prepared and thoughtful? Or mean-spirited and nasty? I'll bet he's been nice as can be since his name was floated as a possible nominee -- but what about before?

I know I am troubled by the absence of private sector practice in Judge Alito's past. He's never had to sweat a paycheck. If he's ever missed a mortgage payment, it's because he overextended himself, not because a client stiffed him. There is something to be said for proving that one can stand alone and unprotected in the marketplace (not that I wouldn't give it up in a heartbeat for a real paycheck and a pension....). Except in my secret fantasies, however, being self-employed is not a necessary qualification for a seat on the Supreme Court. But not only has Judge Alito not been an entrepreneur, he's never worked for an employer other than the government. That is not disqualifying -- but it is a deficiency.

So we have to look at other things to determine if Judge Alito might understand an ordinary person's point of view. Does Judge Alito have season tickets for any sporting events? I'd like to talk to the people who sit around him at the games.

Did he ever get pulled over for speeding? I'd like to talk to the cop.

There's no point in asking Judge Alito about abortion. When we'd finished these background interviews, I'd ask Alito what books he's reading. To what newspapers and magazines does he subscribe? If I ask the question directly about what he listens to on the radio, I know I'm going to get a response about the news station, or NPR, or he only listens to Books on Tape (or Legal Tomes on Tape). So I'd ask instead: What are the pre-sets on your car radio? What's the last movie you saw in the theatre? What's the last movie you rented at Blockbuster?

There are no right answers to these questions (although, I suppose, if he reveals he's a Johnny Knoxville fan, we may have to reconsider this idea that he's really, really smart). It's just a matter of determining if there's a measure of humanity to go along with the intellect -- because both are particularly needed to handle the questions that come before the Supreme Court of the United States.

Revenge fantasy?

Today's news recounts the sad but still funny story of the senior citizen in New Mexico who attempted to dispatch a mouse by tossing it into a pile of burning leaves only to watch in growing horror as the flaming rodent ran from the fire into the man's house -- setting it afire.

The house was totally destroyed.

The mouse was presumed consumed.

But I can't help but think that the mouse, having survived one roaring fire, may have survived the other as well. I can see him now, holed up nearby the charred ruins of his tormentor's house, licking his wounds and waiting for his fur to grow back. "That'll teach him," he squeaks, singed, but satisfied.

Another New Year?

I've never been much of a fan of the New Year's Holiday. In my youth I decried it as "amateur night." And it is all of that: Too many people trying to drink too much and eat too much and be happy whether they want to or not, doggone it! Of course, what did that make me then? A "pro" as opposed to an ameteur? A "pro" at what?

Maybe I don't care much for the New Year Holiday because when I was in college many years ago our final exams started almost immediately after January 1. I never watched the bowl games then. Not only did my college not have a football team, I was busy cramming for finals.

New Year's Day forces us to acknowledge the passage of time -- something birthdays already do, and too well. At some point, kids, that's not altogether a good thing. And it reminds us, again, that what we've hoped for is not what we've achieved. And we never know when time will run out on us.

On a serious note

It's been a tough week to be the parent of teenagers. Perhaps I should say a tougher week than usual. First came news of the death of Tony Dungy's son -- chilling to any parent, whatever the circumstances of the young man's death turn out to be. Yesterday, closer to home, came the death of two teenagers out joy-riding in Lincolnwood at 3:30 a.m. Two others in the car were critically injured. All were supposed to be at one house, at a sleepover. None were supposed to be riding about in a car.

I didn't know the families. My younger daughter knew one of the victims. My heart aches for all of them, the living and the dead and all their families.

But I can't tell you how many times we have seen our kids -- good kids, generally -- go off in one direction... and return from another. Plans changed, they tell you. Everyone decided to go to so-and-so's house instead. We decided to go out for a snack. No, we didn't bother to call; we didn't think you'd mind. (Or: "We figured you'd already be asleep." Snoring away in front of the TV, probably, physically unable to stay awake until you came home safely.)

You think you are keeping track of your kids' whereabouts -- and find you are mistaken. Thank God that we have not found out about a "change in plans" by means of a phone call, or visit, from the police. Can you imagine the anguish of the parents who were awakened to find that their son -- whom they thought safely asleep at a friend's home -- was severely injured... or dead?

Our kids wonder why we get so upset about these things. They see our hand-wringing as unwarranted and unwelcome interference in their own little adolescent world. We embarrass them before their peers when we 'ground' them upon learning that they went to Friend X's home when we were told they were visiting Friend Y. I know we can't protect them from everything, though we'd like to -- but, if something goes wrong, we'd at least like to start running to help in the right direction.

It's not interference for no good reason. It's our job. It's, well, love that makes us ask all those nagging little questions -- and we will just keep on asking.

My subtle signals to David Letterman did not work

No need to post a link on this: It's common knowledge now that Mr. Letterman's lawyers prevailed on the New Mexico court to lift the restraining order against him. He is now free to send his "thoughts of love" to the woman who was so distracted by these subliminal signals that she sought judicial relief.

Oh, wait, that's not the stated reason why he sought to dissolve the restraining order. Something about a complete lack of evidence or something....

Obviously my post earlier this week (and the subtle mental signals I broadcast to the blogosphere -- using, I think, the fillings in my teeth) did not persuade Mr. Letterman to think about the possible benefit he might obtain by acquiescing in the restraining order.

Ah, well, must concentrate harder....

Inflated expectations

It occurs to me that much of the public's love-hate relationship with the legal profession stems from the difference between perception and reality.

Non-lawyers (and even some lawyers, in my experience) have exaggerated opinions of what the law can do -- and diminished regard for lawyers who try and rein in these runaway expectations.

Every personal injury lawyer has a story of a settlement ruined, or at least jeopardized, because the client had a last-minute conversation with a barstool barrister or new acquaintance at the block party (ethanol consumption is almost always a feature of these conversations) who assures the client that the lawyer is selling the client out, or at least short. Somebody else, who had the very same injury (and did you review the medical records in both cases, Doctor?) got twice as much in their case. (Did you see the settlement papers? How do you know? And what were the facts of that case, Mr. Barfly? This case involves an open intersection accident with conflicts among the witnesses. Was your case a rear-ender?)

Of course the client never asks those kinds of questions. Every statement made by the lawyer is viewed with skepticism, but the slurred pronouncements of the drunk guy at the end of the bar who will say anything that will make you buy his next drink are taken as if they were carved in stone.

My oldest daughter (she's 21) has had a series of foot operations over the past year, not all of them successful (which is one reason why additional surgeries have become necessary). In particular, in one of the first operations, a nerve was severed that should not have been. It has caused my daughter pain and discomfort since. A subsequent operation, by a different doctor, in which the nerve was 'tucked into' the muscle, has failed to resolve the problem. Now the second doctor has sent her to a third doctor, who proposes still other surgery.

But was the first doctor guilty of malpractice? My daughter has no doubt: The first doctor was a butcher and must be called to account. I've suggested to her that this unhappy outcome may have been among those possible and that, despite the unhappy outcome, the doctor may have fully complied with the standard of care. I've also told her that malpractice cases are fabulously expensive to handle (in part because they are the least likely to settle without trial). Finally, I've pointed out that, although she continues to have pain, especially if she's too long on her feet, she may not have been injured badly enough to make it economically worthwhile to pursue a case for malpractice, given the costs and uncertainties of such a claim, even if a lawyer specializing in malpractice cases agrees with her unkind assessment of her first doctor.

Well, you can imagine what my daughter thinks of this: I'm obviously a bad lawyer.

My wife is beginning to agree. The mortgage company continues to call my house, at least twice a day, because my December payment has yet to be made. (The $100,000 check continues to reside in my drawer.) On Christmas Day, Sunday, the bank did not call at all -- but on the Christmas holiday, Monday, the Feast of St. Stephen, the bank (or, rather, the bank's computer) called four times. This is excessive and offensive and aggravating in the extreme. But is it actionable?

My wife, a non-lawyer, has no doubt: We should sue. I haven't researched the Fair Debt Collections Practices Act on this issue, I told my wife, but my guess would be that this very large bank has. The bank probably knows where the line is, and stays very carefully on the legal side of it.

Well, my wife thinks I have a bad attitude on this, and she's told me so in no uncertain terms.

I know lawyers are not the only professionals to be second-guessed: Pick up the Sports page in any newspaper. And my late mother doubted the credentials of any doctor who did not prescribe something on every visit. But I think lawyers may be particularly open to second guessing of this sort. Most people realize, when push comes to shove, that they can't hit a curve ball or perform surgery. But everyone can negotiate or argue -- and most of them think they can negotiate or argue better than their lawyer.

In the meantime, speaking of the Feast of St. Stephen, I recall how the good man died. I would like to arrange an historical reenactment, with the bank's computer playing the role of the saint.

David Letterman and the Pro Se Court

The story last week about the "restraining order" against David Letterman got all the usual suspects upset. It seems a judge in New Mexico has ordered Mr. Letterman to stop sending subtle signals to a New Mexico viewer (e.g. every time he mentioned "Oprah" he was speaking in code to her). This is a current link to the story at freenewmexican.com. Letterman's lawyers are moving to quash the order, of course.

That's because they never heard of Judge Manny Rissman. I don't know when Judge Rissman went to his reward, but he was an older man 30 years ago or so when he was presiding in the Pro Se Court of Cook County when I heard this story.

Before Judge Judy, before Judge Mathis, before People's Court, there was the Cook County Pro Se Court. Lawyers were not allowed. If a lawyer sought to file an appearance on behalf of a defendant, the case would be transferred from that room to a regular Municipal Court docket. And a lawyer obviously could not file a case in the Pro Se Court. Not unless the lawyer was appearing pro se -- as sometimes happened, according to Judge Rissman.

But the case that reminds me of Letterman's concerned a dentist. He had put a filling in the tooth of some woman and then began broadcasting signals through the filling, scaring the woman half to death, and ruining her health. He was constantly threatening her. At least that's what she said.

So the dentist appeared in court -- these cases were never allowed more than one continuance -- you showed up on the return day specified in the summons, brought your witnesses or your evidence, and argued the case -- and did a slow burn as the plaintiff recited her various complaints about the dentist's secret broadcasts to her filling. Then he really got mad when the judge turned to the dentist, brushed aside his protestations of innocence, and told him how ashamed he should be of this conduct. The dentist had a relatively small amount of money on him -- $50, maybe, no more than $100 -- and Judge Rissman pronounced that he must pay this entire amount over to the woman in satisfaction of the judgment the court then entered against him. As part of the judgment, the judge told the furious dentist, he would be enjoined from ever contacting the plaintiff again, through her fillings or otherwise.

Sputtering, fuming, but still wary of being hit for contempt of court, the dentist turned the money over to the woman as the judge leaned forward over the bench and watched.

Then he turned his attention to the plaintiff. He said to her, "You've seen how we've punished this man for what he did to you, right?" She nodded. "He's paid his fine to you and I've told him he must never, ever contact you again. And I believe he will follow my order, because he never wants to be in trouble like this again." She nodded agreement. "But, " said Judge Rissman, "fair is fair. He can not contact you. Now you must never contact him again. You can't call him, you can't go to his office, you can't go anywhere near him. Do you understand?" She nodded again and left the courtroom happily.

The dentist left, too, looking like a fish who'd been stunned by a mallet.

But the dentist came back to court again a week later, with his checkbook out and ready. "Judge," he asked, "what's your favorite charity? I'd like to make a donation on your behalf for what you did for me in that case."

It seems this woman had been constantly calling the dentist for weeks before she took him to court. Day and night. Night and day. She came to his office. She was scaring his patients. But after her victory in court, the calling stopped. She obeyed the court's order. It took a couple of days for the dentist to calm down after the court date, he admitted, but he began to take note of the blissful silence -- and he realized what Judge Rissman had done for him.

And what the New Mexico judge may have done for David Letterman. If his well-paid lawyers don't screw it up....

Re-gifting?

This morning on the radio I heard an interview with an advice columnist who suggested that the practice of "re-gifting" can never be eliminated, but there are rules of etiquette that should be followed. Chief among these: Never, ever re-give a gift to the original giver. That was probably a Seinfeld plot.

It occurs to me, however, that "re-gifting" is essential to human survival. I don't mean the world will end if you fail to pass along that 20-year old fruitcake to the next unsuspecting victim. (I don't think the world would end -- but don't take chances!)

But consider what "re-gifting" is. "Re-gifting" occurs when you taken something you've received from someone else and pass it along to someone new. This may be a questionable practice when done with a hideous sweater or with the aforementioned fruitcake -- but when it's done with information, isn't that what we call teaching?

It would be nice, perhaps, if children came into this world knowing what we know already, and building from there. Instead, most children seem destined to repeat all of their parents' mistakes -- and make new ones all their own besides. While all children are hardwired differently -- some seem to absorb information and others require constant drill and repitition to master each new skill -- all are like empty hard-drives. We have to install all the information, or almost all of it.

And all the manuals meant to help us in this task are totally inadequate. Trial and all too frequent error is the only way to do it. And it requires lots of "re-gifting."

A colleague's question -- and an immediate answer

"Why," my colleague asked in exasperation, "do people wait until the last possible minute" -- a more colorful modifier may have been inserted -- "to ask impossibly complex tax questions?"

I know nothing about taxes except that I must (and do) pay them. (That's for Uncle Sam, if the Feds are monitoring.) But I know about last minute demands for immediate answers to complex questions.

It is the age in which we live: We don't have to wait for the tubes to warm up anymore. We are in a solid-state, instant-on age and this expectation has permeated all levels of our daily activities.

I noticed it when fax machines first came in: The request could be made quicker, so a response was expected with equal celerity. But the complexity of the issue prompting the fax hadn't changed -- so the expectation was foolish. This was not an argument to have with clients, however.

E-mail is even faster than faxing. Instant messaging faster still. We can present our issues immediately, and fully grown, like Athena from the side of Zeus. And we demand answers now while the question is still burning, white hot in our minds.

Technology has, as this illustration shows, made life far more difficult for those in contemplative professions.

As have anti-smoking regulations also: Before, we could pause, re-light our pipe, puff awhile as if considering the compiled wisdom of the Ancients, before pronouncing, with grave certainty, "It depends." A promise to research the issue would follow. "It depends" just doesn't look the same when you click Reply on the e-mail. Maybe if I tried a different font?

Chicken and egg stuff

I'm moving my office next month, a source of stress so great that this alone would be enough to account for my present overwhelmed state, without even taking into account the still-undeposited $100,000 check in my desk drawer.

Today I and the other solos with whom I'm moving will meet with a salesperson about leasing office equipment. We'll meet with the technical person about how we're going to hook up to the Internet in our new digs. And maybe we'll even make progress on getting new phone numbers.

We're moving only a few blocks, from one corner of the Chicago Loop to another, but we've all been told we must get new phone numbers. This came as a surprise to my colleagues; it was not as a big surprise for me. When I moved to my present office, four years ago, I moved about a block -- too far, however, for me to keep my phone number then. You see, in crossing the street, I had moved from the Wabash District to the Franklin District, prompting the change. At least, that's what the Texans in charge of our phone company told me.

My new office will be very near Franklin, but East of it, so I did allow myself a brief flicker of hope (recalling the Wabash vs. Franklin distinction of four years hence) that a new number might not be necessary. But it will be. And I'm sure the Texans will have an explanation for it. Undoubtedly the boundaries have been redrawn. At least I'll be able to keep my area code. (I think.)

But the absence of a phone number holds up all sorts of other things: I can't prepare change of address forms for my cases. I'd like to send Holiday cards (in a business setting "Holiday" will do just fine) to present, former and prospective clients -- but I'd like to include an announcement of my pending move -- and give out my new phone number in case, maybe, possibly, somebody might want to hire me for something....

It's the old chicken and egg problem: What comes first? Holiday cards mailed now will not reach their destination before Christmas -- but there's that phone number problem. My future officemates would like me to designate which items of furniture will be moved, and I have entered into discussions with my landlord which give me reason to assume that I can purchase the stuff I've been using lo these several years at a very good price. But I can't purchase anything now, given the cash flow situation. So I do nothing. And Christmas (I can call it that) looms ever larger.

Translation service, free of charge

In the December 19 Chicago Daily Law Bulletin there is a special insert section welcoming all the new admittees to the Illinois bar. All their names are printed in the section (pages and pages of them, all now positioned to take the few meager crumbs I have off my plate....)

Well, the headline on the special section was taken from one of the speeches at the admission ceremony: "Incoming lawyers urged to seek meaning, joy in their work."

What that means is this:
Get out! Get out now while you still can!

From the archives, a cautionary tale:

Yesterday’s rant about collections reminded me of the time I defended a client in a collection case brought by his former attorney.

The client had a loan with the old Cosmopolitan Bank. He didn’t pay according to the terms of the loan. The bank took exception to this, and sued.

Note to aspiring attorneys: There are all sorts of cases like this one available for you. Don’t take any of them. No matter how hungry you are, or how late the rent is. Read on to find out why.

The client had failed to pay the loan in a timely fashion because he was broke. This happens. (See previous posts.) But the client felt he had to respond to the bank’s suit, so he engaged Mr. Greedy (not his real name) to handle the case. The client gave his attorney written instructions: Settle the case. He told Mr. Greedy, "negotiate for me the best posture." He still didn’t have the money to pay the loan installments as they fell due, much less catch up on the arrearage. He wanted Mr. Greedy to get him smaller payments, or perhaps an agreement from the bank to take less than they were owed.

Another note to aspiring attorneys: Clients always want you to negotiate when their backs are up against the wall and they have nothing to offer. That’s just about the only time they want you to negotiate. Otherwise, any suggestions you might make regarding compromise or being reasonable will be viewed as treasonous or worse. This makes negotiation difficult in most cases.

And settlement would have undoubtedly been difficult in this case, not unless you define ‘settlement’ as ‘unconditional surrender.’

But Mr. Greedy apparently had no intention of negotiating. He told the client that "the bank would never settle without a trial." Well, usually, we think of a trial as something that happens when people don’t settle.

So Mr. Greedy launched an all-out assault on the bank’s case. He filed motions, he filed discovery. He must have taken depositions, too, because he ran up a bill of over $17,000. One of the problems with the case, when I got it, was trying to figure out what Mr. Greedy had billed. But it was more than the bank billed, I knew that for certain. The client’s original note with the bank was for about $28,000. By the June 1995 date when summary judgment was entered against the client the principal balance of the note was down to around $23,000, but unpaid interest was over $13,000. The bank was awarded another $13,000 in attorneys’ fees, bringing the judgment against the client to around $50,000.

But the best part was that, somewhere along the way, Mr. Greedy told the client that, if a judgment was entered against the client, the client would lose his credentials to work in the futures industry (another of those businesses where income fluctuates, which is how people get into trouble in the first place). But Mr. Greedy was becoming increasingly distressed with the client’s payment of Mr. Greedy’s bills. I think the client paid about $7,000 for the services described above. But Mr. Greedy wanted a lot more. To satisfy the bill, Mr. Greedy suggested that the client sign over his house to Mr. Greedy "as trustee." If the client failed to do this, Mr. Greedy would withdraw from the case. And client would lose his credentials.

Note to the Attorney Registration and Disciplinary Commission: Yes, Mr. Greedy was reported.

Well, the client did not sign over his house (which was actually titled in his wife's name). And Mr. Greedy did withdraw his representation. Summary judgment was entered against the client. The good news was that the client did not lose his credentials because of the adverse judgment. He still was permitted to make money in his chosen field.

But Mr. Greedy wasn’t done. He sued his now-ex-client for $12,000 in what he said were unpaid fees (including interest calculated according to some sort of method I never did quite figure out).

And that’s when I undertook the client’s representation. I responded to Mr. Greedy’s summary judgment motion with one of my own – and I won. The legal arguments may be not be as interesting to you as I thought they were at the time. The bottom line is that I got Mr. Greedy’s case knocked out of court.

For my services I billed the sum of $3,769.00.

I’m still waiting for this bill to be paid, too.

----------------------------------------------------------------------------
UPDATE -- May 2017. Mr. Greedy was disbarred this month by the Illinois Supreme Court. Not for the incident herein described. But the law caught up with him... finally. And, no, my client never did pay my bill.