unbillable hours

Thursday, October 31, 2002



"Only John could piss someone off like that..."

I just had an adversary, infuriated with a motion I filed, fire off a fax stating that all my office does is churn out "gonzo litigators."

All I have to say is, "Woo hoo! I'm gonzo now."
TPB, Esq. || ||

Wednesday, October 30, 2002

Tuesday, October 29, 2002



fear and a love supreme

Felonious Monk (no site to which I can cite, but what a great pen name, eh?) and I have been conversing on the issue of the Russian response to the Chechen terrorist incident. Here's Felonious' comments:

The background that gave us PUTIN was one of innumerable rules and regulations, for almost everything under the sun. It was also a world where, generally speaking, the goal is to disregard as many rules as possible as long as you can get away with it. Contrast that to the good old USA, where by comparison we have relatively few rules, but we take them ALL really fucking seriously.

Pardon my French.

It's just silly to read you getting your knickers in a knot as you hold up the Russian response to the light of AMERICAN laws and values. Of course there wasn't enough triage on site. It's RUSSIA! Hell, there have been times when there isn't even enough toilet paper. You expect way too much of the niceties and finer points.

What is noteworthy is not the Russian's inhumane attitude towards their citizenry (witness the sunken submarine incident), but rather the bold authoritative response to the act of terror. And it evidences a hell of a lot more foresight than you're giving it credit for.

I'll shut up now.


The first point made by FM is that we Americans are far too tied down to rules and regulations. I have, in the left column, a quote from Robert Bolt's play A Man For All Seasons. It's a great play, well worth reading (and seeing; the film version is wonderful, also). Bolt wrote, in the voice of St. Thomas More,

This country is planted thick with laws from coast to coast. Man's laws, not God's. And if you cut them down--and you're just the man to do it--do you really think you could stand upright in the winds that would blow then?

I like this quote because it reflects how we, as Americans, hold on to our laws. Someone once told me that law matters because it tells the bad man what he cannot do. I like that sentiment. Law keeps us in check from our lesser nature, preventing us from being, as Hobbes put it, greedy, nasty, little oafs. I take law seriously, not only because it is my chosen vocation [1], but also because the law is our only barrier from rule through tyranny. It protects us from the rule of the bully. In that regard, I would make one corrective comment to FM's post. Actually, and contrary to his statements, we have quite a few laws. My copy of the New Jersey Rules of Court, a guideline to how a case can be tried in this state, not even a list of the actual substantive rules of the case, is 2,766 pages long. My copy of the New Jersey Family Laws, Annotated, is 1,479 pages long. Laws are plentiful in this nation, even though novel issues arise every day.

I am curious to see why FM thinks that triage is a nicety. Triage has been practiced on battlefields since the Battle of Monmouth, probably even earlier. It's not a new concept. In fact, it's a well-developed concept. Prior to becoming a lawyer, I was involved in first aid. It was a sort of hobby of mine. It also gave me a slight pay boost when I worked as a Park Ranger. Part of my training in first aid was learning about triage. Seeing as I lived close to a large military base, my instructors took me and my other classmates to a triage training center at that base. This base was a resupply depot for naval vessels. It was not Walter Reed or the Naval Hospital at Annapolis. Still, it had a triage center capable of handling 3,000 patients. In Moscow, there were under 1,000 possible patients. Surely the Russians are capable of handling around 800 patients? I must assume so. Their military, while often underfunded, is still filled with well-trained members, such as the Alpha anti-terrorist units, or the FSS (the successor to the KGB/GRU). To fail to consider triage, when attacking as a special operational forces unit or an intelligence division, suggests not foresight (unless recovery was not desired) but rather a lack of appreciation for the consequences of one's actions.

FM suggests this is a middling point, a nicety. I suppose he could be right. I'm not a world leader, nor a military leader, and I certainly lack the sort of scholarly thought that is needed to become a Vladimir Putin or a battalion commander. I cannot say, with personal experience, what justifies "the Russian's [sic] inhumane attitude towards their citizenry (witness the sunken submarine incident), ... [or] ... [Putin's] bold authoritative response to the act of terror." I have to turn to the old masters on that one. Looking at Machiavelli's book, The Prince, one sees him address the issue of the utility of inhumanity.

Nevertheless a prince ought to inspire fear in such a way that, if he does not win love, he avoids hatred; because he can endure very well being feared whilst he is not hated, which will always be as long as he abstains from the property of his citizens and subjects and from their women. But when it is necessary for him to proceed against the life of someone, he must do it on proper justification and for manifest cause, but above all things he must keep his hands off the property of others, because men more quickly forget the death of their father than the loss of their patrimony. Besides, pretexts for taking away the property are never wanting; for he who has once begun to live by robbery will always find pretexts for seizing what belongs to others; but reasons for taking life, on the contrary, are more difficult to find and sooner lapse. The Prince, Book XVII, Lines 43-52. (emphasis added).

Brutality, according to Machiavelli, was not a bad thing. Brutality was quite effective. However, Machiavelli argued for limited use of attacks on person and property by the requirement that a leader be guided by the directive that he avoid hatred. Quite simply, a leader must not attack in such a way that his subjects are more repulsed than pleased. Thus, we see the wisdom of the attacks on the Afghans, and the failure of the attack on Vietnam. Here too, we see the failure of the attack on the Chechens, as the collateral damage - the loss of the hostages - was such that many are horrified. In fact, the U.S. Ambassador to Russia has already issued criticism in this matter, as have the Russian people. This criticism, incidentally, despite their apparent past lack of toilet paper, as FM noted. Tis better to be feared then loved, yes. But, make sure that fear is useful, and not seen as thoughtless. That, in a nutshell, is Putin's folly. His coldheartedness is not thought of as crafty. It's just coldhearted.


1. I am growing to realize that, for me, perhaps law is not just a profession. I truly feel in tune with the law, as though it is some sort of faith.
TPB, Esq. || ||



A few have criticized my comments on the Russian use of gas on the terrorists this week. I don't want to make much of this, so I'll just lay out my cards thusly. In my State, if a bank robber strikes someone as he drives away from a robbery, he is liable for that individual's injuries. Now, if the bank robber flees, and then a law enforcement officer endeavors to pursue the bank robber, and in doing so the law enforcement officer recklessly or negligently causes injury to bystanders, then the law enforcement agency may be exposed to liability along with the fleeing villain.

Similarly, if the Russians wished to engage the Chechens in the manner previously described, they should have been prepared. The Russians had limited triage facilities on-site. The Russians had no ready source of antidote to the gas, and provided the treating physicians with limited directions as to the proper medical response to the gas. They still have failed to provide information to the families involved in this matter (basic information, such as "your relative is in _____________ hospital"). Their response, in other words, is negligent or reckless.

I have no problem with the notion of going after the Chechen terrorists. They're a Caucasian (i.e., the mountains, not the race) offshoot of the same sort of mindless radical Islam that made the once elegant, intelligent Ottoman/Persian/Saud empires a melange of backwater, isolationist, totalitarian fiefdoms. Less Freedom fighters than Cyrillic alphabet cousins to al Qaida, they, like the rest of the conglomerate empire, are a dying breed. The culture itself - the Islamic culture that brought us great architecture, higher maths, sophisticated trade and metallurgy, and beautiful poetry - is dying, much like the Greek and Roman empires died out. Perhaps some would prefer the phrase "fading" in lieu of dying. I'm not particular; describe this as you will. The terrorists are enemies, of both our state and the Russians. If they are eliminated, I will shed no tear for them. My only point with the previous post was that the Russians used methods that seem to lack adequate thought, if not based on more troubling motives.
TPB, Esq. || ||

Monday, October 28, 2002



117

victims of the BZ gas attack

Over the weekend, Vladimir Putin solved that little Chechen problem of his. Using BZ nerve gas (something rarely discussed in the media, as BZ is one of those things banned under international convention, but hey... you have to break a few eggs, right?), he put the terrorists to sleep. Despite this fact, all but two of the terrorists were shot. Well, it beats interrogations, I suppose. Oh yeah, nearly forgot. He also killed 117 hostages in doing so.

The BZ Nerve gas, an agent that causes hallucinations and paralysis, is a nasty little thing. Even the Russians liken it to Sarin or VX gas (see that shitty-ass movie "The Rock" for an example of VX exposure). It caused those it affected to vomit, choke on the vomit, and die in muscle-snapping spasms. It did not differentiate between Chechen terrorist, Muscovite, or tourist. It was not a weapon of first resort. Had we ever used this weapon in Afghanistan, Kofi Annan would be moving the rest of the UN Security Council to sanction us. However, we didn't use nerve agents. We left that to the more socially responsible nations (according, at least, to Russian statements in response to our Iraqi war plans), like Russia.

I suppose I shouldn't be surprised. This is what you get when you let the former head of the KGB run a country.


TPB, Esq. || ||

Thursday, October 24, 2002



Nikki Furrer at Nikki, Esq. says she's dying to know the name of TPB. Okay. Here you go. It's Rollo Tomasi. Enjoy digging that one up, kiddies.
TPB, Esq. || ||



Today's deposition had to be the most bizarre experience in my life. For the past nine months, we've been going after two defendants for doing, for privacy's sake, very bad things to our client. It's been a knock-down battle, with the defendants admitting nothing. The last deposition was good for destroying the defendant's credibility, but the defendant would not admit to any wrongdoing, despite the fact that the hard evidence we had was indisputable. Today, I had the following conversation with the co-defendant, who had previously informed us that he was going to take the 5th Amendment privilege to each question.

TPB: "So, Mr. CD. Did you and Ms. D do the very bad things in this case."
Mr. CD: "Yep. Sure did."
...
TPB: "I'm sorry, what did you say?"
Mr. CD: Oh, yes. We did the very bad things.
TPB: You did.
Mr. CD: Yes.
TPB: Really.
Mr. CD: Yep.
TPB: Wait. Really? You did it?
Mr. CD: YES!
TPB: Well. Holy shit.

I swear, I must have asked him that same question twelve times during the deposition, just to see if he was serious.
TPB, Esq. || ||



12:43 AM, and I'm still at work. I have depositions tomorrow. It should be fun. The not-so-fun part is that I also have to do a deposition prep memo for my boss by 9 AM... which is also when I need to be telling someone "the Person sitting to the right of you is the certified court reporter. He/She will be taking down everything you say..."

Well, I didn't need sleep in law school. I shouldn't need it now. The only thing that scares me is that I lose driving and enunciation skills as I grow weary. At least I have the new David Bowie Greatest Hits compilation to keep me going. I've been playing "The Heart's Filthy Lesson" and "I'm Afraid of Americans" over and over. It's fitting.
TPB, Esq. || ||

Wednesday, October 23, 2002



Former DCI Richard Helms has passed away. He was one hell of a spook.
TPB, Esq. || ||

Tuesday, October 22, 2002



the rules of engagement, from another perspective

Wendy McElroy, of iFeminists.com, posits some rules of constructive debate in her piece Purging the Political Correctness Within, cited in Ipse Dixit. For the most part, I agree with the piece. I think it has quite a bit of valuable insight. However, I take issue with the following portion of the article.

Zero tolerance. On some social issues, a declaration of "war" may make sense. But, with most social problems, human beings with human frailties are involved. Declaring war only makes every member of society into a combatant, with no prisoners taken. How about reconsidering concepts like negotiation, forgiveness, compassion, and empathy? How about making the law a last resort rather than a first option?

I take issue with this not to rail with some sort of "righteous" indignation that there are some things that we cannot tolerate, and that there are some views that cannot be heard. I don't think that is the case. I tend to think all views can be heard. If the Illinois Nazis want to march on Skokie, they should have the right to do so. I will certainly support their First Amendment rights, even though I find them morally repugnant.

Here's how I take issue with that final point. I don't think that we need compassion and empathy to come into play. In fact, I believe that empathy and compassion are threats to the goal of rational, purposeful debate. Empathy and compassion inject into debate so much subjectivity, so much loaded language of alleged suffering or corruption purged through supposed redemption. I suggest that instead of governing our debate through the principles of compassion and empathy, we guide ourselves, as best we can, by the notion of that which is just. Justice, not empathy, allows us to accept that all views can be espoused, even those that are morally repugnant, but still allow us the means to go after those we find repugnant. Let me give an example. A few years back, the Klu Klux Klan wanted, for some mind-boggling reason, to hold a rally in Manhattan. Mayor Guiliani, a former prosecutor, realized he was posed with an unpromising situation. Does he uphold the First Amendment right of the Klan by granting them a permit to hold their rally and therefore become a political pariah? No, he decided. Does he restrict the Klan and therefore violate their Constitutional rights because he knows their actions will be hurtful to the minority constituents of New York? Here again, he decided in the negative.

Guiliani decided to bar the rally because the Klan neglected to obtain the proper sanitary facilities for their rally. Guiliani used his old prosecutorial skills to find his "out." In that case, it happened to be port-o-johns. Ah, yes, the classic port-o-john stand-off. How many mighty have fallen to that old trick?

Ahem. Sorry. Anyway, the point I'm making is that you can still control debate, and you can still have a fair debate, even a necessarily exclusive one (a "zero tolerance" debate), simply by controlling the procedure required for debate. Lawyers and judges understand this well. There are schools of jurisprudence (the Legal Process Theory espoused by Hart, Sacks(1), and Wechsler, in particular) that are devoted to the notion that the "good" of a legal debate (namely, a lawsuit), can be found in the fact that the proper processes were used. Justice is in the trip, not the destination, would be the new age appellation of this. So, with this in mind, I posit that zero tolerance can be a legitimate and realpolitical goal, provided that the right processes are used to control the debate in order to exclude the repugnant. If those processes are used as they should be, then the very act of exclusion can be called "Good".

In fact, this is widely accepted in law, although we probably don't think about it often. For example, take the Hearsay Rule and the Rule governing the Exclusions to the Hearsay Rule (N.J.R.E. 803, in my jurisdiction). These rules govern the exclusion of and the inclusion of certain arguments without any consideration for the argument's actual substantive merit. Certain arguments, under the Rules of Evidence, are granted zero tolerance. For example, zero tolerance is given to the introduction of an argument based on the recounting of something someone else saw (i.e., "So, Witness, what happened?" "Well, Bill told me he saw a white Bronco..." "Objection!") based on the notion that there is no room for debate where there is no actual personal knowledge. We also do this with business law, to wit: the Statute of Frauds. Certain arguments, such as those relating to certain forms of contracts, are simply not tolerated because they lack the concrete, recorded nature required for business to remain fair. There is no consideration for the feelings of the parties. There is no fear of being unsympathetic. There is only the knowledge that this ensures that contractual matters are never subjected to the whims of a Judge's emotions. This, in the end, is a zero tolerance policy for the imposition of the sort of "but he promised", whiny equity argument from the area of contract law.

My point with the above is that we can look at process and see that there are means by which we can have zero tolerance in debate. In fact, it may be a goal to strive toward.

1. Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (1958).
TPB, Esq. || ||

Monday, October 21, 2002



My stomach hurts so much right now that I am actually troubled by it. Troubled as in "hmm... maybe I have malaria." Not good.

I had a long, long, long settlement conference today. Five and 1/2 hours. That's too long to work without resolving a case. So, I have to go back in to court on Friday and do it all over again. What a wonderful Monday. You know what the kicker is? This morning, the fuel pump on the (shitty) Mercury Sable gave out, forcing me to swipe my brother's car (sorry, Flounder) in order to get to court. I have to get rid of the Sable. I hate the thought of wasting money on a new car. Still... I can't put up with this piece o' crap.
TPB, Esq. || ||

Sunday, October 20, 2002



I don't know what the story is with the time stamps on this blog. Trust me, I was not up at 1 AM writing this shlock. I did it at 2 PM.
TPB, Esq. || ||



netlexblog, part deux

Monty Python and the Holy Grail

I'm just going to start off with apologizing for the above reference to "Hot Shots, Part Deux." I promise, no more references to embarrassing Charlie Sheen movies.

All right. Let's get to the meat now. Netlexblog (hereinafter "NLB") responded to my little rant on multilateralism/multinationalism. I intend to respond to it in order of the points made therein, but I wish to address one issue out of order first. NLB stated

"What strikes me in his reasoning is the prevalence of force. It has a positive value per se. Using it with a goal cannot be wrong (the Good)."

I want to make clear that I do not think that force, for its own sake, has no positive value. Force for its own sake, on a personal level, is sadism. On a wider, political level, it's either oppression or anarchic terrorism. No, force must be grounded in a justification. Quite frankly, there must be a damn good justification for force. Self-defense is a good justification for force. According to a recent case from, I believe, Minnesota or Wisconsin, defense of an unborn child is apparently a good justification for force. Defense of others is a good justification for force. On the political level, I tend to think that these justifications apply along with a few others: enforcement of treaties, eliminating threats of harm, and retaliation against prior acts of war. Whether the justification is preemptive or reactive, in any of these cases, is a matter of the fine print, I suppose.

Obviously, americans and europeans are not pursuing the same objectives. Should I translate, they are not prepared to die for the same ideals or is it just a question of wording ?

May be it is time for americans to wonder what they are really up to.


I don't know if I would say that Americans and Europeans (and I would break this down even further, to address the individual cultures within Europe, to wit: France, Spain, the Basque, the Irish, etc.) are not prepared to die for the same cause. For the most part, we had the same justifications for fighting in WWII and the Korean War. I wonder, though, if we were to somehow poll individual combatants in conflicts, if they would have different definitions of what justified the common cause. I wonder if there would be a collective sense that something is or is not right, but then a fragmented or diffused sense of what makes the cause just. That may be mincing words.

I found the continental approach more logical. I am interested in knowing what kind of better world I can expect as the result of the potential use of force. Did the Gulf war help to install democracy in Koweit or in Irak ? If the answer was "YES", I am sure that europeans would be less reluctant to take immediate military action against Saddam Hussein, in case he does not comply with his international obligations.

I agree with the reluctancy posed by this comment. We did not achieve democracy in the Persian Gulf War. We did not go far enough to do so, as many documentaries have pointed out (most recently, for me at least, the military documentary "Inside the Kill Box"). I think that part of the problem with the Gulf War was that we were very concerned with our Middle Eastern allies, and that we would not have their support for removing a political leader who was, at the same time, genocidal (vis a vis the Kurds), and a useful stopgap against Iran's power. I think this second point should be the guide for current caution. If we remove Iraq from the power struggle in the Middle East, will that allow Iran, a nation with dangerous tendencies, to become a more powerful threat? Interestingly, I have to admit, I didn't come up with this idea on my own. It came from a Tom Clancy novel... I cannot, for the life of me, remember which one, but the basic premise was that Hussein was assassinated, allowing Iran to become a threat.

To end with, I am baffled by his vision about international relations : alliances and multilaterlism are useless remnants of the cold war.

I stand by my position on this. My general thrust, with my post, was that I think that we are sacrificing too much of our individual, national identities by attempting to force ourselves into the mold of a global community. Maybe an analogy would make that clear. In business, there are certain benefits and detriments to different corporate structures. Stability is the benefit of a large corporation. In a small corporation (the start-ups or the "small caps", whichever suits your mindset for this analogy), the greatest benefits are flexibility and freedom of innovation. With a small corporation, there's less of a chain of command, and there's less kowtowing to a central authority. Therefore, there's a great opportunity for novel solutions to problems. The burdens of a large corporation are that the corporation cannot adopt this flexible, innovative approach and becomes slow-moving. Individual groups and ideas are stifled for the sake of central control and the hierarchical system imposed in most corporations. Eccentric, innovative groups are watered down, becoming divisions that support the needs of the corporation entire. Evidence of this comes from how IBM struggled at the close of the last century, and how GM and Ford are struggling now. Now, the burdens of a small corporation are that they are weaker and less stable than the large corporations. This is evident from some of failures that occurred at the close of the tech-driven market.

Statesmanship works in the same fashion. There are some advantages to being a member nation in a large multinational governmental organization. You have a lot of backing. However, that backing never acts with great speed. Also, you must sacrifice the nuances of your individual, national political identity in the name of this organization. While going it alone raises the obvious weaknesses/threats of being isolated or cut off in a time of need and less long term stability, I think the gains realized from greater independence and the expression of unique national politics are worth these risks. There is something very valuable being lost by nations that subsume their characters in order to satisfy the needs of multinational government organizations. For example, if America were to grant jurisdiction to the World Court, as requested by the U.N., we would immediately lose one of our most cherished values: that sense that Federalism, the old Madisonian Federalism, requires a limit to who has authority over individual citizens. I'm sure there are similar losses posed to the French, British, Germans, etc., by their allegiance to this multinational cause.

I think that the end result of the consolidation of political identity, from the regional, to the national, to the multinational, will result in a bad thing. I think we will be stuck with a boring, faceless, and stifling political system that punishes, even if inadvertently, the development of unique national or regional political views. Specifically, when addressing that system in regard to conflicts like the present day one, I think that a multinational system has the potential threat of stifling nations from jumping into the fray when they believe it is just to do so. It stifles each nation's sense of the "just war theory."

Of course, there is another possibility. Perhaps it is that this mutlinationalism that I rail against is really part of the political identity of Europe. Perhaps European nations want to blur the distinction between their individual political identities. I don't know. I just know that I would not enjoy it if the United States were to do so.

So what else can you expect on "Unbillable Hours" ? Well, you will find someone who is "surprisingly interesting for a lawyer...". Actually he is.

The man likes Milan Kundera. Reads about Bach's Goldberg Variations (the post is illustrated with a picture of Glenn Gould), or "Rilke's beautiful Letters on Cezanne". He is obviously a man of many qualities. I also noticed that his blood pressure may reach 160/100 during the exams. I don't know what the normal rate should be, but I am quite impressed. Good lawyers take law so seriously. I suppose it is also the reason why they gare good at law. Anyway, with such credentials, you will have the best reasons to spend more "Unbillable Hours" on his weblog.


As for this stuff, well... thanks. That's too kind. As for being impressed with my blood pressure, well, I'm glad that my previously unhealthy state can appease.
TPB, Esq. || ||

Friday, October 18, 2002



I've been trying to redevelop my French skills, dormant since law school began. I noticed this, Netlex blogs, a French law/politics blog, via Andrew Raff. Now, I spent a few minutes reading through, trying to get a sense of what was being said. Quite frankly, I need to bone up by reading a textbook or by reading Paris Match with a dictionary by my side, as I used to do. Anyway, I make it about halfway through this one piece (here), and I realize this: they're bitching about the same stuff we are.

- Personne n'a oublié en France la déclaration de Tony Blair dans laquelle il appelait à la constitution d'un axe germano-britannique, ce qui était une façon de rejeter le rôle de la France à la marge.

What does the above say? Let's see if my overworked mind can give it a shot. No one in France forgot the declaration by Tony Blair in which he announced the creation of a German-British alliance, which was a way to reject/push the role of France into the margins/fringe.

Okay... assuming I'm doing all right on the translation, here's the fun part. Let's rewrite this.

No one in the United States forgot the declaration by Gerhard Schroeder/Jacques Chirac/Jean Chretien in which he/they/someone working for them announced the creation of a Canadian position/German political stance/European objection, which was a way to reject the U.S. position as the fringe position.

What's the point here? It's the same, stupid rant every blogger is having. What I bitch about here, someone bitches about in France, or England, or Canada, or Suriname or wherever. "We want to work with others, but we want them to accept our views, and when they don't, they make us look like jackasses." This is the central problem with global politics. We want to be team players, but we are trying to do so within the fabric of nationalism, by which I mean the belief in the sovereignty and right of our personal nation-state. When we get rejected by others, we are shocked and irritated that they defy/offend us as such, but we miss the point. None of this would matter if we enabled ourselves to become self-sufficient and self-dealing.

All of this global statesmanship, wherein 32 or 12 or half of the Western World agrees to team up on an issue, and then never agrees on a damn thing, is a product of the Cold War. It's nations thinking that we need to team up to defeat some enemy, and we cannot do it without global or regional approval. Truth is, though, we don't need global approval. I don't recall casting a vote in French parliamentarian elections, which is probably just as well for the French. They sure as hell didn't vote for Bush.

All of this outward-looking politics is a vestigial response to the Soviet Union. We don't need it. We didn't need it before the Soviets (hi, um... I don't remember getting global approval for joining up with Britain/Belgium/France/Australia in WWII [p.s., no, I will not say we joined up with the Soviets... they fought on their own; we just shared common enemies]). Did Lincoln ask Britain for permission to fight the South? Did we get a memo from Napoleon and Victoria/Disraeli regarding the onslaught that covered Europe and Africa in the 19th Century?(1)

Look, here's the whole point in a nutshell: we can agree to be global when it comes to business(2), but when it comes to the velvet black robes of justice and the gray steel of battle, we have to go it alone. I don't mean that only the United States should take this route. I mean this on a global scale. Justice and war, in the logic behind each and the goal they both push toward, are national and, perhaps, cultural. The American identity of justice is that of an individual. It seems, more and more, that the European identity, particularly on the Continent, is that of the community. Neither ideal is bad, per se, but these ideas do not mesh at all. We cannot be protective of individual rights while, at the same time, acting in a communitarian fashion. It doesn't work. In the same fashion, the European justification for war, which seems to be grounded in stability and a balance of power, is not terribly compatible with the American justification of the preservation, globally, of the democratic ideal. Look at the morass that was the Balkan conflict. We - the U.S. - entered the conflict near the end, because we were not as concerned as the Continent about balancing the power of the Croats, Serbs, Ethnic Albanians, and Bosnians. When we did enter, we were chastised for coming in with a fury, demolishing every enemy structure that lined the Danube. The attitudes are so different, the European "lets make sure none of this goes too far" and the American "we will not give in until we have pounded the crap out of this tyrant/despot/terrorist/mass murderer/etc.". In some sense, Kruschev's statement that the Soviet Union would bury us shows that we have more in common with the Russian mindset than the Continental mindset.

In the end, the commonality of our complaint with globalism - the lack of respect by other nations for our national views - strikes me as an impetus to modify our position on globalism. As previously stated, we do not need global approval. Now that the world has changed, perhaps we need to consider whether we wish to strive so passionately for it.

1. TO: The U.S.
FROM: Britain.
RE: Napoleon - "Strategic Redevelopment" Possibilities
Listen, old chum, we're thinking of popping off to Gibraltar for three to five years for a global naval skirmish with the French and the Spanish. We might have to lob a few musketballs in Northern Europe and Egypt, but we are quite tentative in that regard...

2. Although, for the life of me, the lopsidedness of global trade suggests that we're not exactly in a symbiotic system.
TPB, Esq. || ||



take the rock up the hill or remain in the valley

Today was a hard day. My boss was drilling into me because I could not present to him three different things at once. My boss is a good man. He's driven, to some extent relentless, but yet he's also genuinely concerned about my learning the practice. A lot of young lawyers I know are stuck with bosses that don't really care if they learn how to become advocates. Instead, they just want the tasks completed and the billable hours met. So, to some extent, I've lucked out. On the other hand, and there always is that alternative, I've been thrown in the deep end. I am not relegated to the routine tasks that all lawyers know and dread doing. I have to keep up with the big boys. If I go into something - a deposition, a hearing, a settlement conference, or a motion - I go alone. There's no safety net, and very, very little room for failure. Already, one of my fellow classmates from the summer program washed out.

So, in a certain sense, I have a very real and valid dread of failure. The big fuck-up. That one thing you do that gives you the reputation of being a dipshit. I don't like it. I try to avoid it. Being a new lawyer, I can't avoid screw-ups entirely. I'm slow. I tend to over-research a topic, attempting to develop an exhaustive body of information to draw from, rather than a sufficient set of precedence. Sometimes, in my attempts to streamline work, I miss details. Nuances that, either due to my drive for speed or my inexperience, I don't catch. In time, my boss tells me, these things will come to me naturally. This is a good thing, my boss telling me this. When others screw up, his response is much more forceful and profane.

Still, the fear eats at me. It reminds me that I need to strive for more, that I cannot accept "adequate." The fear is both a benefit and a burden. It drives me to perform in ways many did not expect. In my first deposition, I pulled off a major evidentiary victory, largely because that fear, lurking through all five hours of the deposition, kept me hyper-vigilant. It is a burden because it keeps me at work till all hours at night. That's something I don't mind, per se, but I sometimes think about how many of my friends have 9-5 jobs. They seem content in their social lives, but unfulfilled at work. The same goes for my father, with his reduced hours. He works less than I do, but we've always had to struggle for money (scholarships are wonderful things).

How do I keep on doing this, everyone asks. My father loves to rub in the fact that "it's a shame [I] have to spend my whole life at work, when there are more fulfilling things to do."(1) The thing is, I find my work fulfilling. There's an immense sense of accomplishment when cases settle. There's an even bigger one when I win motions. Motions are the most amazing experiences. After a motion, win or lose, I feel like I've been drained of all energy. When I win, though, I feel .... weightless. For an hour or two, depending on how long I allow myself to stroke my own ego, I feel free of any burden. It's as though any doubts of my self-worth have been wiped away. Of course, then I look at my task list on Outlook and have to go out for a cigarette to calm down.

The heart he wore in a golden chain
He swung and flung forth into the plain, 30
And followed it crying ‘Heart or death!’
And fighting over it perished fain.

So may another do of right,
Give a heart to the hopeless fight,
The more of right the more he loves; 35
So may another redouble might

For a few swift gleams of the angry brand,
Scorning greatly not to demand
In equal sacrifice with his
The heart he bore to the Holy Land.

-- In Equal Sacrifice, Robert Frost

I don't know. There seems no end to this flood of work, and I know I will be in here tomorrow. Sunday, again, and then it is the week's beginning. Seasons barely acknowledged, but for the search for my trench coat and the conclusion of casual summer wear. There has to be a point at which the upward curve becomes a plateau. If not, the burdens become maddening.

1. Personally, I find these comments to be little passive aggresive jabs on his part. He and I have a competitive relationship. He used to bring up, in law school, that his GPA at NYLS was 0.03 points higher than mine at Georgetown.
TPB, Esq. || ||



postscript to my comment on giving blood

In my comments to this post, TPH, JCA, and I have been discussing health issues related to law. In particular, I commented on the fact that, during law school, I was so stressed that I began developing somatoform symptoms of my anxiety. My hands constantly trembled. I developed insomnia. Hell, for a time, I had gray hairs in my beard (actually, my beard also began turning red... I tend to think this was due to my nutritionally deficient diet, which consisted mostly of grilled chicken, coffee, bagels, and cheap beer). Finally, I developed hypertension. My blood pressure, at one point during exams, was at 160/100. That's somewhere around the level of "excuse me, sir, your borderline stroke is distracting the class, please keep it down."

Anyway, my blood pressure is normally (actually, like clockwork), between 120/60 and 120/70. Normally, that is, until I went to this new health club. There, each time I had my blood pressure done (in the past six months), it came out as 150/100. This, needless to say, is not good.

Today, I had my blood pressure taken at the blood drive. It was 120/60. I'm beginning to think that the guy at the gym was screwing up the sphygmomanometer.
TPB, Esq. || ||



the friday five
I don't know why I decided to do this. Maybe it's from my lightheadedness (I just gave blood). Maybe I just think the questions can be funny, if not interesting.

1. How many TVs do you have in your home?
Five. One in the kitchen, one in the family room, one in my parents' room, one in my brother's bedroom, and one in my office.

2. On average, how much TV do you watch in a week?
Twenty minutes, each weekday (CNN). Three hours max on the weekends (whatever movie I can find). A grand total of 280 minutes.

3. Do you feel that television is bad for young children?
I don't think it's as good as reading, and my parents felt similarly. We weren't allowed to watch television until I was in high school. Do I think it causes kids to be violent, greedy, nasty little oafs (thank you, Mr. Hobbes)? No. Human nature seems to do fine on its own, in that regard.

4. What TV shows do you absolutely HAVE to watch, and if you miss them, you're heartbroken?
None, really. I used to religiously watch The Simpsons and Homicide: Life on the Streets. Now, I wait for The Simpsons to come out on DVD (I have the first two seasons), and catch Homicide whenever it's on Court TV. Incidentally, that's the only time I watch Court TV. I can't bear to see other lawyers litigating. It's too much like bringing work home.

5. If you had the power to create your own television network, what would your line-up look like?
All porn, all the time.

Just kidding. Lots of old episodes of The Twilight Zone, Mash, Homicide, and Miami Vice (I like the stylized feel of that show... speaking of which, the director of that, Michael Mann, now has a new show: Robbery Homicide Division, which I am starting to like), as well as a mix of the movies on the Independent Film Channel (thank god for satellite dishes) and American Movie Classics/Turner Classic Movies.
TPB, Esq. || ||

Thursday, October 17, 2002



Three words I've learned to hate:

(1) Nice. "It's not nice." "You're not nice." "Why can't you be nicer to the defendant?" (The latter from mother, to whom my father and I explained, gently, mind you, that I work in an adversarial system.)

"Nice" is overrated. Nice doesn't get the job done. Nice, for lack of a better word, doesn't work. Nice is what's going to send this troubled corporation we call the United States of America into the shitter.

Sorry. I hate when I channel Gordon Gekko.

(2) Digital. "This digital coffee maker can turn on, make your coffee, turn off, read the paper, and bitch about the Mets." "This digital, voice activated, MP3-ready, Celeron processsor (Intel inside!) powered device..." It's an answering machine. I've got three of them. They break more quickly than Firestone tires on an SUV. Digital doesn't mean good. It just means electronic. Working means good. Working quickly means better.

(3) Multitasking. "You're going to have to multitask the ABC matter and the XYZ matters along with the articles for the NJ Swamp Law Journal and the American Homewreckers Law Journal." No, I've got too much shit to do and nothing is going to get done thoroughly. "I multitask while I'm on the phone." No, you ignore the person on the other end of the line and surf the internet. "I multitasked this Lexis research." No, that's double billing.

Jesus, if I'm this bitchy now, imagine what I'll be like when I try to wean myself off coffee.
TPB, Esq. || ||



Occam's Razor, it is posited, states that the simplest explanation for any phenomena is always the best. To that end, what is the most reasonable method for the elimination of terrorism?



You kill terrorists.


Via Andrew Hagen.
TPB, Esq. || ||



after a brief haitus... your moment of zen

The Web Economy Bullshit Generator.

Serving whiteboard out-of-the-box communities since Pets.Com sold the puppet.
TPB, Esq. || ||



Don't mind the site, minor issues going on, none of which require medical assistance. Carry on, then.
TPB, Esq. || ||



Washington Post reports on the surgical efforts to revive the 11th Sniper Victim with exceptional skill (both by the surgeons and the reporters). Most interesting: The surgeons did a remarkable job in preserving the chain of evidence necessary to introduce bullet fragments.
TPB, Esq. || ||



Here's a recent Christian Science Monitor article on the Grolier Poetry Bookshop, a landmark in Cambridge, Massachusetts. I used to visit the store often, hoping to find something new to dive into; perhaps Lowell one week and Jeffers the next (and, in reality, I stayed true to those favorites, along with my others: Frost, Yeats, Whitman, and Eliot).

For those that live up in New England, the Grolier is worth checking out.
TPB, Esq. || ||

Wednesday, October 16, 2002



Clubbeaux takes a long view of the history of Islamic/Western relations. It's an interesting post, reminiscent of a lot of my history studies in college (I spent a lot of time on pre-Ataturk Turkey/Ottoman Empire).

Via Ipse Dixit.
TPB, Esq. || ||

Monday, October 14, 2002



Mike at Method to the Madness reports that he hasn't seen any other Georgetown law blogs. Mike, you need to look to the alumni for that. We're here.

Via Sua Sponte, who somehow hasn't developed the same first year twitch I developed in law school.
TPB, Esq. || ||



you're a good boy, wallace
Yesterday, as I polished off my second cup of morning coffee and listened only partially to MSNBC, my father stomped into the kitchen. He was wearing his typical mud-spattered biking gear. His helmet gave his head a mushroom shape. I looked at him, perhaps in a manner not terribly hospitable.

"Are you going to be sitting there all day?" he asked.
"No, I'll be heading into work later."
"It's a Sunday, you know," he said.
"And?" I let that one hang in the air.

"There's groceries in the truck. Your mother fell on the boardwalk, and can't carry them. Bring them in."
"Is she all right?"
He nodded and walked off to his office.

I went out and carried in the groceries. My mother was in the garage, examining her mountain bike, particularly the slight dent in the frame. After carrying the groceries into the kitchen, I went back out to the garage.

"You all right?" I asked.
"Yeah. I hurt my hip and skinned my elbow when I fell."
"Worse things could happen."
"Yeah, well, your father's mad at me. He said I was going too fast."
"Were you?"
"Probably."
"Oh well," I sighed. "Can't say I wouldn't go too fast either."

Later, after putting away the groceries, I went upstairs to do some cleaning. My mother was in one of the upstairs bathrooms, trying to clean the abrasion on her elbow. The skin had been ripped raw from her fall, and her elbow was a sticky red spot about the size of a plum. She had a large flexible fabric Band-Aid in her hand.

"Can you help me put this on?" My mom asked.
"Sure." I put down the shirt I was hanging up, and reached around her onto the bathroom counter for the small tube of neosporin I saw sitting there.

"You know, it's going to scar," I said.
"That's all right, I had another scar there."

I put the neosporin on in small circles, careful not to get it on my fingers. It felt strange, applying a Band-aid on my mother. Right players, wrong roles, I thought.

"Dad's probably right. I shouldn't have been going so fast," Mom said. She was talking to herself more than me. I said nothing, and took the Band-Aid from her hand. I debated the orientation of the Band-Aid. Do the strips go across the length of her arm, or do they go across the breadth of her elbow?

"Which way?" I asked.
"Across."

I slowly applied the Band-Aid.

"I guess I'm getting too old to go fast," she said.
"It was raining." Take the explanation, I hoped.

"I suppose you could look through Prevention magazine, see what it has to say," I joked.

She laughed.

"Okay. All done."

I drove to work a few hours later. Halfway across the Driscoll Bridge, just over the moorings for the cabin cruisers and fishing boats at Lawrence Harbor, I realized I was stupid. I shouldn't have said that joke about Prevention. I should have told her I thought she was young, that she was always young and funny to me. She was my mom. I should have said something better, something caring.

Today, I struggled through work, trying to get everything done, but I still dwelled over what I had said. I say so many things without thinking, and cursed my stupidity.

I want those sentences back, but they're not retrievable. Indelibly written into the record, words evidence my weakness.


TPB, Esq. || ||





Thom Yorke of Radiohead states that next album will be more like The Bends and OK Computer than Amnesiac and Kid A in NME. Frankly, I find that pleasing. As much as I liked Amnesiac and Kid A, I still prefer the earlier two albums. There's more melody, better lyrics, and a less forced feeling. That being said, I still think that Amnesiac and Kid A were to rock music what Stravinsky's Firebird Suite and Schoenberg's 12-Tone Movement was to classical music.

Courtesy of Minor 9th.
TPB, Esq. || ||

Sunday, October 13, 2002



Another bombing, and more carnage. This time last year, I was just getting over the nightmares from the last attack. The only attack, I had hoped. This time it's far from home, but I can still remember the feelings... getting ready with my mother to work as paramedics at the triage stations set up at Liberty State Park...repeatedly, obsessively checking over the casualty lists for names I recognized, just as I had done a week before with my bar exam results... cleaning the ash from my deck... watching federal agents raid apartments in the nearby complex that housed many Middle Easterners and South Asians.

I don't think we can do much about those who don't want to stand with us in the upcoming wars, and, sadly, it appears that there will be more than one. That is their choice. I don't think we should back down, though. We're uncertain, but not without guidance. We know who opposes us, and that seems to be enough, at this point.
TPB, Esq. || ||




Alumni Stadium, Boston College, September 2002

Why do I love candid shots? Sometimes, just sometimes, they bring out those integral elements of our personality that are so beautiful. This is a shot of my friends (ADL, LBA, and Jay Dub), taken as BC established that Central Michigan had no business playing NCAA Division 1 football. I love how this shot strips away all of the facades of posed shots, and shows my three friends as they are. Of course, the shot's not completely free of subject knowledge. Jay Dub's smile gives that away instantly.
TPB, Esq. || ||




Just Before the Storm, Atlantic Highlands, New Jersey

The storm in question, can be found here, at "good fortune in the storm."
TPB, Esq. || ||




Flounder, my fraternal unit, reveals the level of professionalism expected of Boston EMTs.

Taken at the tailgate prior to the football game I saw at my latest trip to Boston, this also reveals my brother's wonderfully absurd, fearless sense of humor.
TPB, Esq. || ||



Ah... in the office on a sunday. A quiet, casual way to start the week. I sit and groove to the Tallis Scholars' rendition of an early classical piece (actually, late Renaissance, as it's by Lully), and wait for my client to come in to sign his divorce complaint. I like this guy. He's affable, kind, and lives for his daughter. I hate the way that his divorce has been putting him through the ringer. I suppose, then, that I feel good about doing the work I do for him. I'm helping him get over this mess. When all is said and done, I will be freeing him to go off and live a good life. At the least, I hope that's what I'm doing. I like that. It has a fulfilling edge to it, and makes me think that I didn't miss much by leaving psychology.

Postscript: "Groove to the Tallis Scholars?!" What, am I trying to be a complete nerd?! Whatever, it's fun to be a freak. All right, all you people. Go out there and get your freak on.
TPB, Esq. || ||

Saturday, October 12, 2002



i have my books, and my poetry, to protect me

Is work the cause of my dark mood? I don't know. It's been stressful lately, but not depressing. I tend to think my mood stems from the rest of my life. Work, strangely, is the only place where I think I'm even remotely fulfilled. Here, at work, I'm challenged, and I pull off things no one expected (least of all me, sometimes...). Then, I go home, and it feels empty. I went out last night, for example, and my one friend from Red Bank was stuck at home taking care of his sick child. So, I went out to the bars and clubs anyway, seeing if I could extend my social circle. Already, I have a few acquaintances in town (1) that I hang out with, but I have a hard time talking to them about anything. They have no interest in politics, or books, or art, or anything beyond movies and the local gossip. They're not bad folks, but they're not interesting to me. Thus, other than you and my one close friend from down here, I have few people who I can really talk to on a deeper level than "so and so is sleeping around with so and so."

A part of this, I know, is that I spent so much time as a kid and in college trying to geek out. I always figured that it would be useful to me to know as much as possible, but never paid much attention to all of the social skills that people find useful at this stage in life: flirting, dancing, being able to bullshit about sports and pop culture (i.e., sitcoms, Survivor, and all the rest of that crap). Now, while I don't hold much of that stuff in high regard, I realize its utility. So I'm trying to develop my skills in that area, but it's hard. So often these days, I wish I could just withdraw from all of this, and escape into a little room with some books and cd's.

1. I moved out of this area - Red Bank, NJ - seven years ago, when I went to college and law school, and rarely returned.

TPB, Esq. || ||

Friday, October 11, 2002



I took a quiz today to see how much of an asshole I was. I scored 295 points out of a possible of 300. I am quite nearly a perfect asshole.
TPB, Esq. || ||

Thursday, October 10, 2002



family portrait

We were made for each other
-Me and you
I want to be somebody
-You were like that too
If you don't get given you learn to take
And I will take you."

Holding my breath
Release the catch
And I let the bullet fly

All turned quiet-I have been here before
Lonely boy hiding behind the front door
Friends have all gone home
There's my toy gun on the floor
Come back Mum and Dad
You're growing apart
You know that I'm growing up sad
I need some attention
I shoot into the light
-Peter Gabriel, Family Portrait (Shaking the Tree: Sixteen Golden Greats)

TPB, Esq. || ||

Wednesday, October 09, 2002




glenn gould, 1932-1982
Jeff Cooper has a brief yet loving post about Bach's Goldberg Variations. The Variations is a great piece (I know, it looks weird to use a singular verb with a noun that appears plural, but the variations compose a single unit, so...), perhaps one of Bach's most complex. The Variations unfolds like a science experience. Bach sets up his first aria, then tests that aria with fugues in different keys and tempos that demonstrate the unity of theme throughout the piece, namely, the rolling leitmotif woven into the initial aria and its compatability with multiple musical forms. Bach's Variations can be thought of as a meditation on a theme, much like Rilke's beautiful Letters on Cezanne, which explored the moody expressionism of that painter. Much like Rilke's interpretations of the paintings reflected on his temperment, each pianist's interpretation of the Variations, from Gould's barely controlled edition to Charles Rosen's methodical edition, reflects on their own temperment (especially that of the tormented Gould).
TPB, Esq. || ||



"By your endurance, you will gain your souls."
- Luke 21:19.

I'm not at all religious, but I have that quote taped to my monitor at work. It reminds me of what I have to do in order to succeed. I have to endure. Right now, I need to pare down my life. I need to do some serious work, without reflection, without moderation or doubt. I need to end this silly phase I've been in where I go to lunch with "the boys" from the office, and don't get back to the office until two hours later. I need to get back to being Spartan.

In law school, I used to have the scrolling marquee screensaver on all the time. I'd use it for display of quotes or reminders. Traditionally, by the time exams came around, I had one word listed on the marquee: "Soldier." It reminded me to do my work, avoid distraction, and to endure the little miseries of law school life. Right now, I need to soldier on again.
TPB, Esq. || ||

Tuesday, October 08, 2002



unrehearsed phone calls are hazardous to children and other living things, or, why i hate being jon favreau

"Um... J? This is TPB, and I'm just returning... oh, sorry. I think I say that on all of my business calls. Anyway, I'm not returning your call; I'm just replying to what you asked that night at the Dublin House. You said to give you a call about going out to dinner some time at Chammps [sic]? Anyway, umm....
[brain freeze and panic sets in]
[glaciers move]
If you're still up for it, why don't you give me a call. I'd be free later this week. My number's 555-5555... oh wait, that's my work number. Um... My cell is 555-1212. Talk to you soon."

I ended the call. I put down the cell phone. I repeatedly drove my forehead against the maple surface of my desk.

I really need to start getting out of the office earlier.
TPB, Esq. || ||

Monday, October 07, 2002



Note to self: you can get away with an unrehearsed call to your adversary, but never - never - attempt another unrehearsed call to a girl that has given you her number.
TPB, Esq. || ||



Milan Kundera, author of The Unbearable Lightness of Being, has a new book that was reviewed by the NY Times. I'll have to check that out. Kundera's books are always preposterously well written.
TPB, Esq. || ||

Sunday, October 06, 2002



Late at night,
I don't want to go home, and
I don't want to work.


TPB, Esq. || ||



Swerdloff details the tribulations of having an imbalance in the male/female ratio of friends. I know how that feels. My old college/high school friends moved off to distant locales, and I am now the proud friend of one male, and seven females (also, I think this demonstrates that I know far too few people, in general). Not that there's anything wrong with female friends, but I am getting tired of developing the glassy, "could we please avoid discussion of your recent shopping purchases or other, um... uh... how do I say this without offending, ' monthly personal issues.'" It's not that these are bad things to talk about but, honestly, I have no way to relate. I couldn't differentiate a $300 Coach bag from a naugahyde chew toy, which probably makes me a labrador retriever. As for the "personal issues," while I understand that it's something women have to deal with, I really cannot think of a polite way to respond to the topic.
TPB, Esq. || ||



to love, honor and allow a little dork to overindulge himself at the open bar

I was at a wedding last night. I never feel more useless or inappropriate than while at a wedding. I feel like having me at someone's wedding is a lot like having an undertaker at a baptism or bris. Too much foreshadowing, not enough mirthful irony. Still, this was a nice wedding. The bride, a paralegal that used to work with me, was radiantly happy to be celebrating the occasion. The groom looked overwhelmed and nervous. I think that was because the groom was uncomfortable with being in the public eye.

I spent the ceremony lost in my own reverie, vaguely aware of the necessary cues that kept me from standing up when I should sit down or vice versa. I wonder if they will have those little french/italian cake-like desserts at the reception... petit fours, I think they're called. I like petit fours. They have a french name, so they must be french. Oh, look, we have to stand now. Wow. This room has a lot of stained glass in it. Why is it that stained glass is beautiful, but my mother thinks toothpaste-stained mirrors is gauche. Hey, gauche. That's also french. I like the french language. I just don't care for Parisians. The rest of France is nice, though. I wonder if Latetia Casta is Parisian. Hmm... oh, yes, sitting again, is it? Right, then. Down I go. Hey, maybe I could pretend to be meditating, deep in thought, while reviewing the New York Times on my iPaq... Latetia Casta. She's pretty. I like pretty (somehow, my internal monologue approximates that of a drug-addled Homer Simpson). Wow. Maybe I would have paid attention more if I had noticed that some of the bridesmaids are pretty... I'd hate to be called a bridesmaid. It sounds like they have to clean her sink or something... what, it's over already?

At the reception, I steeled myself with some gin in preparation for the inevitable questions I receive in those rare moments that I venture out in public. What questions, you ask? Well, here's the top three:

1. So you're a divorce lawyer? Don't you feel bad about doing that?
2. So you're a divorce lawyer? Don't you feel bad about doing that?
3. So you're a divorce lawyer? Don't you feel bad about doing that?

The answer to these questions is "no, I don't, but would you mind passing me a vienna sausage/my drink/a sedative?" I really don't feel bad about what I do. I honestly believe I help people. Sometimes I wish people wouldn't act in a manner that requires my help, but I really cannot control that.

I knew no one at the wedding last night, so I spent the evening in brief introductory conversations with a bunch of people, frequent stops at the bar (just so you know, I alternated each drink with coke... and not that kind, thank you very much Mr. Belushi... so I was waterlogged, but not tipsy), and repeated attempts to initiate a conversation with a woman who was running for town council somewhere. I was impressed with her to no end. At 27, she was already involved in politics on a personal level. Right now, I have only done back office work for politicians, and have only a slight interest in the actual game itself. I'd much rather become a writer or a law professor than an elected politician.

After a few hours of the above activity, I realized that I was not made for large social functions. I was having too much trouble making any connections with people - being able to talk to them at a level that was personal and interesting - to really know what to say anymore. I had spent an hour retreating into my shell. Thus, I made a hasty exit, and drove home.

I spent the remainder of the evening watching Kevin Spacey put on his irritatingly sincere, humane persona in K-Pax. Why is it that, when Spacey makes a movie about being a violent, crazed killer, a sinister gang leader, or a crooked cop, he's interesting, but if you try and make him sincere I want to bludgeon him with a tire iron? Is it that he does sincere with a coy, "I know you think I'm a complex, kind, and wise human being" undertone?
TPB, Esq. || ||

Friday, October 04, 2002



in a handful of dust

This is what divorce is like on the other end of my attorney-client relationship. I see the antagonism, the harassment, the pettiness. You live the sadness, the misunderstanding, the confusion, the regret.
TPB, Esq. || ||



depends on what your definition of "is" is
Mudbug wrote the following regarding New Jersey Democrats v. Attorney General:
TPB,

The whole debate here seems to hinge on the interpretation of a dependent clause in the conditional statement that opens the statute: "In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election, or in the
event of inability to select a candidate because of a tie vote at
such primary, a candidate shall be selected in the following manner."

The NJSC (and I) read the highlighted clause as descriptive: "In the event of a vacancy that happens to occur 51 or more days before the election, here's what you do." In this interpretation, the "shall" is a simple conditional future tense; the statute DOES NOT TELL YOU what's allowed and what isn't if the condition is not met. (The NJSC is obviously taking this position in their ruling when they say that "N.J.S.A. 19:13-20 does not preclude the possibility of a vacancy occurring within 51 days of the general election".)

The Republicans and their supporters, on the other hand, take the position that the highlighted clause is PREscriptive, not descriptive: that "which vacancy shall occur" means "which vacancy MUST occur". In this reading, the statute says "In the event of a vacancy -- and you cannot even HAVE a vacancy unless it takes place 51 days before the election -- here's what you do."

Judge Poritz was explicitly rejecting the latter reading when he said, during arguments, "Let me give you a
present. The New York law says that failure to adhere to the election
timeline shall be a fatal defect, but the New Jersey statute does not
say that."
Mudbug | 10.03.02 - 11:04 pm


Mudbug has a good point, but I think that a few things that are law-specific should be addressed (I also want to defend the honor of Chief Justice Poritz and point out that she is actually a wonderful woman, not a he... but that's not terribly important). In order to address these points, I want to take you back to the wonderful world of my first year of law school at Georgetown.

Back then, in that heady turn-of-the century time (1998-99), when times were simpler, I took a class simply titled "Government Processes" (1). The teacher, a savant who had earned a J.D., Ph.D., and M.D. before his 35th birthday, did a wonderful job explaining statutory construction to the class. One of the key points he made was that, in law, certain words take on special meanings. In some sense, philosophy would have a ball with this (well, at least Heidegger and the phenomenologists would). For example, let's consider the use of the words "which" and "that" in contracts. You will rarely see the word "that" linking clauses in contracts.

"The parties agree that the pension shall be divided by Qualified Domestic Relations Order that will be drafted by Plaintiff's Attorney."

Why would the above sentence not be used? It is grammatically correct. However, it does not delineate the two requirements for performance in that sentence. Let's consider a sentence improperly using the word "which" as a link between the two clauses.

"The parties agree that the pension shall be divided by Qualified Domestic Relations Order, which will be drafted by Plaintiff's Attorney."

Technically, this is not the proper way to write the sentence. The first example was appropriate. However, in legal construction, this sentence is preferred because it clearly delineates the fact that (1), the pension must be divided, and (2), the Plaintiff's Attorney has the burden of drafting the document that will enable the division of the pension.

Taking this example, we can see that law uses language slightly differently than the general population. That being said, let's look at the words "shall" and "may." Mudbug described the word "shall" as being a descriptive word. "The event shall occur," according to Mudbug, is not a mandate. Rather, it recounts what is expected by the speaker. In law, this is not the case. When a statute uses the word "may," then it is using a descriptive word.

"Parties may obtain their drivers license, after successful completion of their written and behind-the-wheel examinations, no earlier than their 17th Birthday."

This describes when a party is permitted to obtain his or her license. It does not mandate that they obtain said license.

"Males shall register with Selective Services no later than their 18th Birthday. Failure to register shall bar said males from obtaining Federal Financial Aid for Higher Education."

In this case, the statute is demanding that males register for the draft by the date of the birthday granting them majority status. There is no debate. There is no condition precedent that will modify this. Males must register.

In a similar vein, N.J.S.A. 19:13-20 does not describe when a replacement is barred from the ballot. It demands that no replacement be put in place after the 51-day mark. In other words, there is no possibility of debate. The statute, on its face, sets the same sort of timeline that statutes of limitations impose on causes of action.

Given the restrictions imposed by the statute, and the general doctrine of legal construction, it would seem that the N.J. Supreme Court avoided the clear mandate of a statute in favor of public policy. Review of their opinion confirms this.

"'[It] is in the public interest and the general intent of the election laws to preserve the two-party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as of all other qualifying parties and groups.'" The New Jersey Democratic Party, Inc., supra, at 4-5, quoting Kilmurray v. Gilfert, 10 N.J. 435, 441 (1952) (emphasis added).

I would like to consider this critical quotation in the opinion. The Court is focused, in spite of the direct mandate of the legislature, on the "general intent" of the law, and therefore the legislature. This means that the Court is ignoring the legislature in order to support what the legislature wanted. Somehow, I find such logic suspect. Next, let us consider the bias the Court has, as I have previously discussed, in favor of the two "major" political parties. The Court is using this bias to justify avoidance of a clear statutory mandate, in spite of the fact that other parties are running in this election.

All in all, I think there were better ways the Court could have obtained this outcome. As previously stated, the Court could have declared the law, as applied, to be a violation of the Constitutional rights of the Plaintiff and the general public. However, the Court failed to do this, perhaps because it opens up the Court to direct review by the United States Supreme Court.

While I feel that there is no great harm caused by the inclusion of more candidates on the ballot, I believe strongly that the proper legal process must be followed. If the procedure for inclusion of these candidates on the ballot is unjust or violative of the law, then the process takes on an air of undemocratic partisanship. This cannot serve the People (note, I refer to that proper noun which encompasses us all) well. For, if we allow the processes that limit our range of action in the interests of democracy to be distorted, we distort democracy itself.

1. For those lawyers and law students out there, Georgetown doesn't follow the traditional first year curriculum. Instead of contracts, torts, property, constitutional law, and civil procedure, I took "Bargain, Exchange & Liability" (torts and contracts), "Democracy and Coercion" (Criminal and Constitutional law), "Law and Process" (Civil Procedure and Choice of Law), "Property in Time" (landlord-tenant law, property, and municipal law), "Legal Justice" (Jurisprudence), and "Government Processes" (Administrative Law). The fancy names indicates the preposterously theoretical nature of these classes.
TPB, Esq. || ||

Thursday, October 03, 2002



Hmm... I'm getting a lot of traffic from Flyover Country, but I can't seem to get on to their website. Any thoughts?
TPB, Esq. || ||



All right. Somehow, I missed the statute on the election issue (thanks, Mudbug). Well, I refer to Prufrock's Rule 5, below, and admit that. Here's the right link to the statute, which clearly deliniates the 51 day policy, N.J.S.A. 19:13-20. Does this change my position? Yes, it makes me more uncomfortable with the Ruling. The Court should have either declared this statute unconstitutional, and invite the US Supreme Court to review (which it will do, anyway), or enforce the statute and allow the democrats to appeal on Constitutional grounds. Having done neither, I think the Court should have had a more expansive opinion justifying its actions. Public policy does not mean saying "I think it's the right thing to do". There needs to be more, as we in the family law field learned from the Court's public policy position concerning domestic violence.
TPB, Esq. || ||



i love the smell of vitriol in the morning...

Editorial aside here: this is really a poor excuse for a post, but I am so disgusted with some stuff I see out there I just can't help it. For my regular readers, I apologize.

Aside from writing my blog, and reading the many well-written law blogs out there, I sometimes stray over to the non-legal territory in order to read people who are writing not out of academic curiosity or as an exercise in honing their writing skills (as many of us law bloggers do), but rather as a means of communication and enjoyment. When it comes to reading non-legal works, I have a pretty varied set of interests. I love reading A Life Uncommon because of the photography. The website reminds me of pictures taken in the film Rain Man. I like reading In Spite of Years of Silence because the author has a wonderful writing voice. It's somewhat mournful at times, often melancholy, but always thoughtful. In fact, it's so thoughtful that the author has been published (i.e., in print... for real), which is quite an honor.

Now, I also read other blogs, and two in particular have caught my attention lately. First, we have the intriguingly-titled "Up Yours" (currently found here), which is moving to a new location here. Up Yours has a lot of pieces addressing various areas, but largely the following ones: sex, parenting, politics, and other blogs. Generally, the blog can be funny, but it often gets bogged down in dealing with flames and various battles with other writers. Second, we have "Sugarmama", which addresses more health-related issues, given the athletic interests of the author, and often contains some funny rants concerning various issues (for some strange reason, these rants frequently focus on the Chrysler PT Cruiser... don't ask me why). I tend to think of this author's writing as having the same tone as Denis Leary.

Thus, it could be said that I have enjoyed reading both authors. Thus, too, it could be seen that, when I read the comments to this post, I would be disgusted. Utterly disgusted. Therefore, I decided that I would put forward a few "rules of engagement" for others to look at while thinking about how they communicate on the web. I have based these rules on how I have acted with other lawyers, both online and off, and how I have observed lawyers clash in court.

prufrock's rules of web dissent
1. the frivolous litigation statute: There is, and will always be, a cost you must consider prior to attacking someone. There's an old maxim in my field: "The law is not concerned with trifles." In other words, if you don't like someone's writings for aesthetic reasons (i.e., they can't write for shit, like me) or some other petty reason, don't bother belittling them. Their lack of quality will be noted and make them a subject ripe for ignoring (you know, just like everyone ignores the Anna Nicole Smith show). Seriously, don't waste our time - the readers' time - with silly attacks on someone because they or their website is lacking in the artistry department. Attack the substance of their writings, when necessary.

2. always remember, your adversary may one day be your co-counsel... or worse, a judge: When I go into court, I always remind myself that courtesy to the Judge demands that I refer to him/her as "Your Honor." Courtesy to my adversary requires that I refer to him/her as "Counsel," or, if I am feeling snide, nothing more severe than a mirthfully-intoned "Learned Counsel". Why? Let's put it this way. Let me suggest that I referred to a local lawyer who happened to be county bar president as an "asshole" in court or made histrionic comments about the lawyer's personality or moral fibre. Well... right about now I would be regretting that, because he is now a Superior Court Judge. Similarly, he and I worked on an amicus brief together. I would have lost out at that opportunity because of my emotional response to a simple debate. That's something lay people need to learn from lawyers. Repeat to yourself, while arguing, "it's nothing personal, we're just in disagreement." Furthermore, courtesy aids settlement and resolution of issues.

When dealing with blogs, I think that courtesy in writing, as demonstrated by Chris Cotner's eloquent response to my posts on religion (I can't link to it because his archive link is not working, but here was my end of the argument) gives one a great deal of credibility. Quite frankly, when I look at bloggers who write profanity-laden, sexually obsessed characterizations of each other, I have to assume they lack the intelligence for debate in a proper sense. Yes, I am indicting those writers who engage in that sort of thing, and, yes, I understand that I will probably be flamed for it. To that end, I do invite you folks to justify such venomous writing. I will gladly post your positions and my responses on this website. That being said, I still enjoy and respect your non-assaultive writings, and hope you continue to develop them.

3. remember, you can be sanctioned: Sometimes, we get so caught up in our arguments that we forget that there is a limit to what we can say freely. Yes, yes, I know we all have First Amendment rights, but please, don't patronize me. There is a point where what you say indicts you more than he or she whom you attack. Let me put it this way. Remember the McCarthy Hearings? These were initiated during the Red Scare to go after alleged communists. At one point, Senator McCarthy was brutally attacking an officer, going after him for knowing about foreign nationals threatening the purity of our essence, or something of that sort. In response, attorney Joseph Welch rhetorically asked, "At long last, sir, have you no sense of decency? Have you no shame?"

Those words could well be Tailgunner Joe McCarthy's epitaph. Remember, it is very easy to let your anger become the toreador's weapon in bringing you down. Now, the same could be said of those who wrote in the comments to the aforementioned post. Have you no sense of decency? You speak to a fellow human being. Someone who may have suffered, who may well have seen great loss, loss which we cannot imagine. Yet, we take it upon ourselves to condemn as the "great" Senator McCarthy did. Remember, just as the condemned are led to the gallows, so too might be the condemning.

4. always remember the availability of summary judgment: If your argument lacks facts or information that has the likelihood of proving your case or disproving your opponent's, they can tear you apart through "summary judgment," i.e., a quick point at your lack of reasoned, cogent arguments. Q.E.D., you look like a jackass.

5. the frivolous litigation statute, part two: If you argue a point and are proven wrong, and yet you continue to argue that point, the courts of New Jersey do have the power to sanction you for the unnecessary fees incurred due to your argument. Similarly, there is a cost for argument when you have already lost. Be willing to concede your fallacies, or at least ask others to advise you of the truth. There is grace, honor, and strength in such an attempt. Admitting lack of knowledge shows that you possess the constitution of one who is not guided solely by ego, but rather a genuine interest in truth. After all is said and done, is not truth an end goal for these discussions?

Respectfully submitted,

TPB, Esq.

Okay, enough pretending to be Robert's Rules of Order. Talk to you folks soon.
TPB, Esq. || ||



are you there, god? it's me, the electorate*

So... another election is going up to various courts. Here I am, the victim of not one but two snafus with regard to an election. In law school, a resident of Capitol Hill, I had to deal with the various reporters and publicity seekers that surrounded the Congress and the Supreme Court during the national election mess. I learned two things from that. First, there is nothing so satisfying as sneaking out, late at night, to tangle and unplug all of the power cords for the television news vans. Second, reporters have a complete lack of propriety when it comes to public behavior. Those journalists who didn't end up pissing on my shrubs, for lack of a bathroom, would knock on my door at 5:30 AM, asking to use my toilet.

Well, the election problem in New Jersey is a whole different story. Here's the New Jersey Supreme Court's opinion (pdf) on the election. I'll boil it down for you in one sentence. While the law, N.J.S.A. 19:3-20 et seq., states that no appointment to an office shall be made in violation of the time limits imposed on elections, public policy dictates that we enforce a party's right to submit a candidate to the Secretary of State (of New Jersey, who actually runs the elections) for printing on the ballot.

I suspect that this might have been a "we're going to give the democrats a seat on this ticket no matter what obstacle" move largely because the NJ Supreme Court wanted to avoid being labeled, as the US Supreme Court was unjustly labeled, an election thief. However, it is not as though there are no other candidates for the office besides Douglas Forrester (R). Presently, the following individuals are running for Senate: Ted Glick (Green); Elizabeth Macron (Libertarian); Gregory Pason (Socialist); and Norman E. Wahner (New Jersey Conservative Party). These candidates could have been endorsed by the Democratic party as alternatives to Forrester or the now-departed Torricelli. Well, maybe not Wahner, but the rest would have been possible candidates.

Instead, it seems like the Court allowed the NJ Democratic Party avoid the limitations of New Jersey Election law on the basis of public policy, vis a vis the desire to have not merely multiple parties run, but rather multiple parties representing one of two parties in the system. It doesn't matter, it would seem, that a coalition could be formed between the greens, the socialists, and the democrats. It only matters that there are R's and D's on the ballets. I think this may be evidence of a manichean perspective on the political system in America. We need to stop thinking of only the two big parties as options. Had the NJ Supreme Court ruled thusly, I think I would feel more comfortable with the outcome. That being said, I don't think this is the end of the world. Having added options to the ballot only increases the opportunity for voters to express their voices. It does not take away their voices, something I would be much more concerned about.

However, what is being said if people vote for Loutenberg? That they liked him in the debates? Nope, he never had the opportunity to debate Forrester or the others. That he campaigned well? What campaign?! That he stands for something that the New Jersey Electorate believes is beneficial? Possibly... he was a senator for 18 years. I would say this. I am uncomfortable with the Court's decision, because it allows an unknown candidate to appear, and denies other candidates any meaningful ability to attack that candidate, thereby denying them the true political experience. I think that's important for democracy, and I would have hoped the Court would have recognized that rather clearly. The issue isn't addressed in the opinion, and perhaps, that is because the issue would not have made a difference to the Court. Who knows, though. Perhaps the Big Nine will make similar arguments.

Today, the matter was certified to the US Supreme Court, which will decide whether (I would suspect) this decision was arbitrary or unreasonable. I suspect that, this time, the answer is not as clear as it was in the Florida Election case. In Bush v. Gore, it was clear to most lawyers that the Florida Supreme Court had set different standards for different counties during the vote count. This, therefore, was considered a violation of due process. In the present case, it is less clear whether NJSA 19:3-20, in being applied or in the failure of application, is an equal due process violation. Look at the statute. I still can't figure out where 51 days came from this statute. I can find it within the ballot-printing regs, offline, but not in the statute. This is bad statutory drafting, this section on election law.

The US Supremes have to look at this statutory stuff, however, and see if there is anything that rises to the level arbitrary, unreasonable, or capricious if it wants to overturn the NJ Supremes. I don't know if they can do that. In Bush v. Gore, the Court found the different counting standards and timelines for Dade and Broward counties, respectively, violated the Due Process clause. I suspect that this clause would be equally violated if it can be said that the NJ Supremes ignored a clear mandate, but it remains to be seen how well such an argument would go in the US Supreme Court (hopefully, regardless of the outcome, there will be the same six-three split that there was in the main part of Bush v. Gore).

Personally, I think the Dems should have followed my suggestion above, and endorsed the green party candidate. That may have been the only way they could have won this battle without losing respect. In fact, there's a good deal of political precedent for such an action. This is what goes on all the time in European elections. It is also how things work in the NY state elections (i.e., Bloomberg wooed the Republican Party as well as the New York Conservative Party for endorsements). Besides, it allows us to challenge the notion that the only electable candidates are Republicans and Democrats.

Instead, we have another situation where we ask a Court to decide how we should run politics. Sigh... If I see any reporters near my office, I am taking a leak on their hubcaps, just to avenge my rhododendrons.

*Apologies to Judy Blume.
TPB, Esq. || ||



Check out Mowabb's post on National Novel Month. The article cited therein by Epstein is irritating to me. Epstein states that people shouldn't attempt to write novels because, for the most part, the average novel is crap. To this I respond: well, yeah, it's crap. Why not take a shot at something new coming out of left field (hi, remember Eudora Welty and William Carlos Williams?) that blows everyone away?
TPB, Esq. || ||

Wednesday, October 02, 2002



Update: Justice Albin was listed on the scheduling order for the Torricelli case (New Jersey Democratic Party v. Attorney General). His formal swearing in is on Thursday. Have they privately sworn him in already?
TPB, Esq. || ||



a rumor of chads

Howard Bashman, at How Appealing, reports on the local furor we've been having over the Torricelli withdrawal here in NJ. Right now, the Democrats have taken the case before the NJ Supreme Court, arguing that they should be allowed to field a late-in-the-game replacement, to wit, Frank Loutenberg. Everyone that has reported on this case has brought up the political stances of the Justices. Verniero and LaVecchia tend to be conservative (at least, as far as we take conservatism in New Jersey). Coleman, Long, and Zazzali tend to be liberal. Chief Justice Poritz tends to be independant. Many also bring up the recent appointment of Justice Albin. However, Albin will not be a factor in this case. At least, not yet. He hasn't been sworn in yet. In fact, I will have the pleasure of attending that tomorrow at the War Memorial building.
TPB, Esq. || ||

Tuesday, October 01, 2002



tattoo you

Okay, this is neat. In Kenneth the Scrivener, I pointed out that Judge Starr was representing a group of South Carolina tattoo artists in a suit against the State for violation of their free speech rights through a ban on tattooing. I was wrong. It's actually an individual plaintiff (Ron White), who graciously corrected me in the comments section. You can find Ron's homepage here. It gives a little more detail on the case. Hopefully I can get Ron to give us a little more on this. Either way, I admit my bias: I hope he wins the case.
TPB, Esq. || ||



Sugarmama writes that I am surprisingly interesting for a lawyer... despite her rants about bloggers with wish lists, I think I am going to have to send her flowers or something. At the very least, I should come through on that bribe I promised her.
TPB, Esq. || ||

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