Yesterday I attended a screening of the film Easy Rider. Peter Fonda, the star, producer and co-writer of the film was there.
Going to this screening, I could not help but wonder if Easy Rider has stood the test of time. After all, it is ranked by the American Film Institute as 88th in its list of the greatest American movies ever made. But Easy Rider debuted in 1969, over 40 years ago. To say that times have changed would be a gross understatement. And so, in the end, the short answer is “no.” Easy Rider is a good but not great film.
As everybody knows, Peter Fonda and Dennis Hopper are the anti-heroes in Easy Rider. They play two young drug-dealing potheads who have made a big score. Now they are making a cross-country excursion from California to Florida where they intend to retire. Along the way they meet a variety of characters, some interesting, some not and some simply strange.
But the music is very good and the cinematography is actually outstanding. Particularly compelling are the scenes of Fonda and Hopper driving their choppers on two-lane blacktop often oblivious to the majestic beauty of America, which serves as a spectacular backdrop to their journey.
On the way they meet a farmer with a large family. They make some small talk over dinner about a man doing his own thing in his own time. Next they visit a commune, but it is the kind of place where I wouldn't last for even an hour. They are given a tablet of LSD to quarter and to use at the right time with the right people.
Next they crash a parade and wind up getting arrested. Apparently the cops don't discover the tablet of acid or the money that has been hidden in the tank of Fonda's motorcycle. But it is at this point that a young Jack Nicholson appears and a very mediocre film is suddenly elevated to something meaningful. Later, Nicholson gives a remarkable speech about how many Americans embrace the word but not the concept of freedom. This is actually the best part of the film. Unfortunately Nicholson's time in the movie is much too short.
Thereafter Fonda and Hopper arrive in New Orleans for Mardi Gras, and visit a brothel that Nicholson had told them about. While there, Fonda receives a premonition about his death.
Next Fonda and Hopper head to a cemetery with two prostitutes where they all drop acid and experience a bad trip. In my opinion, the bad trip is unnecessary and takes much too long. If it happened earlier in the film, you would go out to buy more popcorn.
Fonda and Hopper then resume their pilgrimage towards Florida. But before reaching their destination, Fonda announces to Hopper at a campfire, "We blew it." Hopper seems to wonder what Fonda is talking about, and frankly, so did I. Perhaps Fonda was suggesting that there are more important things in life than money and that one shouldn't sell drugs to get rich. Or perhaps this statement was supposed to suggest that these bikers represented a corrupt corporate culture in which money, however obtained, reigns supreme no matter the human casualties. Or maybe it simply means that Fonda and Hopper should have stayed at the commune.
But for me, the poignant part of the evening was the presence of Peter Fonda himself. A table was set up for him in the lobby of the theater. He sat there, indoors at night, wearing aviator sunglasses. Signs indicated that anyone wanting to meet Peter would have to (a) buy a ticket to the screening and (b) purchase a photograph from another table (for $20.00), which Peter would then autograph. For another $20.00 you could get a picture taken with Peter while standing behind a motorcycle.
Many of the autograph seekers appeared to be in their 60's and were dressed in motorcycle regalia. Some came with Easy Rider DVD's for Peter to autograph and one man actually had a miniature model of the motorcycle that Peter rode in the film. One sensed that if Easy Rider ran at midnight every weekend like The Rocky Horror Picture Show, many of these folks would be in attendance.
Prior to the film starting, it was announced that Peter was not feeling well. And so he would address the crowd after the film rather than before. He did so for a few minutes.
By the time we left the theater, Peter was back in the lobby signing autographs. And I remembered that he had once been nominated for an academy award for his performance in Ulee's Gold, an outstanding film.
Unfortunately there will not be any special screenings for that.
Sunday, January 31, 2010
Wednesday, January 27, 2010
DEATHBED DIVORCE
The tabloids are abuzz with news that actor Dennis Hopper, allegedly terminally ill with prostate cancer, commenced divorce proceedings this month against his wife.
As one would expect, issues of undue influence and competency are being raised. On the other hand, Hollywood folks tend to treat marriage and divorce a little bit more casually than the rest of us. Still, the concept of a person choosing to divorce one’s spouse as his final act on the planet seems unusual if not bizarre
Of course all lawyers know that court calendars generally move rather slowly. This fact alone introduces a dramatic “race against time” element into the saga.
But one thing we should not do is confuse Dennis Hopper, the person, with his screen persona. Indeed, the film characters played by Dennis Hopper have often been typecast as crazed and maniacal. In Blue Velvet he played a violent sociopath. In Speed his character was a terrorist who wanted to blow up a bus.
But he was also a director and a writer. Indeed, he has directed a film that the American Film Institute has listed as being among the top 100 best cinematic achievements in American history. So maybe we should give Dennis the benefit of the doubt.
I am a lawyer, but I no longer handle divorce cases. None. When somebody calls me seeking a divorce, I generally try and talk him or her out of it. “Stay married and forgive everything” has become my mantra. But nobody listens to me. Instead they go to other lawyers and file divorce proceedings nonetheless. And of course there are other points of view. One divorce attorney in Chicago used a billboard truck to convey the following message: Life’s short. Get a divorce. This message apparently suggests that one’s marriage should be evaluated by looking at the sand remaining at the top of the hourglass rather than dwelling upon the sand that has collected at the bottom. In any event, Dennis, presumably, is looking at very little sand.
Of course most lawyers know that there is really no such thing as divorce. Oh, the judge will sign some papers declaring that you are divorced, but in the end it carries about as much significance as money left under a child’s pillow by the tooth fairy. You can believe you are divorced if you want to. But more likely the case will be immediately reassigned to a “post-decree calendar” which means that the fighting will simply continue in another courtroom and with another judge. As a practical matter, marriage really does mean until death do we part.
Except for Dennis Hopper. Because he is dying, Dennis is actually in a position to beat the system. There will be no “post decree” court for Dennis who apparently wants to die a single man. Perhaps that goal is keeping him alive. Maybe the only thing left on Dennis’ bucket list is to hold that certified decree in his hands, smile, close his eyes and start driving that great chopper in the sky.
As one would expect, issues of undue influence and competency are being raised. On the other hand, Hollywood folks tend to treat marriage and divorce a little bit more casually than the rest of us. Still, the concept of a person choosing to divorce one’s spouse as his final act on the planet seems unusual if not bizarre
Of course all lawyers know that court calendars generally move rather slowly. This fact alone introduces a dramatic “race against time” element into the saga.
But one thing we should not do is confuse Dennis Hopper, the person, with his screen persona. Indeed, the film characters played by Dennis Hopper have often been typecast as crazed and maniacal. In Blue Velvet he played a violent sociopath. In Speed his character was a terrorist who wanted to blow up a bus.
But he was also a director and a writer. Indeed, he has directed a film that the American Film Institute has listed as being among the top 100 best cinematic achievements in American history. So maybe we should give Dennis the benefit of the doubt.
I am a lawyer, but I no longer handle divorce cases. None. When somebody calls me seeking a divorce, I generally try and talk him or her out of it. “Stay married and forgive everything” has become my mantra. But nobody listens to me. Instead they go to other lawyers and file divorce proceedings nonetheless. And of course there are other points of view. One divorce attorney in Chicago used a billboard truck to convey the following message: Life’s short. Get a divorce. This message apparently suggests that one’s marriage should be evaluated by looking at the sand remaining at the top of the hourglass rather than dwelling upon the sand that has collected at the bottom. In any event, Dennis, presumably, is looking at very little sand.
Of course most lawyers know that there is really no such thing as divorce. Oh, the judge will sign some papers declaring that you are divorced, but in the end it carries about as much significance as money left under a child’s pillow by the tooth fairy. You can believe you are divorced if you want to. But more likely the case will be immediately reassigned to a “post-decree calendar” which means that the fighting will simply continue in another courtroom and with another judge. As a practical matter, marriage really does mean until death do we part.
Except for Dennis Hopper. Because he is dying, Dennis is actually in a position to beat the system. There will be no “post decree” court for Dennis who apparently wants to die a single man. Perhaps that goal is keeping him alive. Maybe the only thing left on Dennis’ bucket list is to hold that certified decree in his hands, smile, close his eyes and start driving that great chopper in the sky.
Saturday, January 23, 2010
HEARSAY, SCHMEARSAY
If there is anybody left who believes that criminal defendants are presumed innocent in the courts of America?
And what about the case where “everybody knows” that a person is guilty of a crime but admissible evidence of such guilt is lacking? Is it acceptable for a governmental body to enact a new law that will make the inadmissible evidence admissible? Illinois legislators think so. And the case in question is People of the State of Illinois v. Drew Peterson.
For those unfamiliar with this case, Drew Peterson is a former police officer. He has been married four times. In 2007 his fourth wife, Stacy, disappeared. Prior to that, in 2004, the body of his third wife, Kathleen Savio, was found in a bathtub. Her death was initially ruled as an accidental drowning.
But following Stacy’s disappearance, new interest developed concerning the death of Kathleen Savio. Her body was exhumed and a forensic examination performed. The medical examiner concluded that Kathleen Savio died of drowning following a struggle. The coroner then reclassified Kathleen Savio’s death as homicide staged to look like an accident. The suspect was Drew Peterson.
But Drew Peterson continued to proclaim his innocence while thumbing his nose at prosecutors. He even consented to interviews on television news shows. As for the Will County States Attorney, he may have wanted to charge Drew Peterson but his entire case could be summarized in four simple words: smoke but no fire.
As the facts of the case have became better known, it was reported that prior to her demise Kathleen Savio allegedly told a police officer that she had learned of an affair between Drew Peterson and Stacy, the now missing woman who was later to become Peterson’s forth wife. Savio also allegedly complained that Drew Peterson was physically abusive and that she was afraid that he might kill her. The problem was that with Kathleen Savio being dead, these statements were strictly hearsay remarks incapable of being cross-examined. They would not be admissible at trial.
And so, on December 8, 2008, the State of Illinois enacted a new law. Codified as 725 ILCS 5/115-10.6, the law is entitled: Hearsay exception for intentional murder of a witness. Nicknamed the Drew Peterson law, the statute provides that hearsay evidence may be admissible if three criteria are met:
(1) first, that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness;
(2) second, that the time, content, and circumstances of the statements provide sufficient safeguards of reliability;
(3) third, the interests of justice will best be served by admission of the statement into evidence.
For criminal defense lawyers, this statute creates a WTF moment.
For example, the statute is supposedly designed to create guidelines for the admissibility of evidence that might establish a defendant’s guilt. But the very first paragraph of the statute requires a finding that the defendant is already guilty of the murder charge for which he stands accused. This is circular reasoning. This is a dog chasing its tail. And what about the presumption of innocence?
The second paragraph requires the judge to determine that the statement or statements are sufficiently reliable to be admitted into evidence. But nowhere in the statute are guidelines established to determine such reliability. This is like an umpire being asked to call balls and strikes without first defining the strike zone. That being said, allow for the possibility that reliability will be proportional to the amount of media attention being given to the case.
The final paragraph, that “the interests of justice will best be served by admission of the statement” is simply Kafkaesque. The “interests of justice?” What’s that? The language of paragraph three is really a secret code for the judge. Translated, it means: everybody knows this defendant committed the crime - just get it done.
We live in an up side down world. Lip service is paid to constitutional guarantees, even as they are being erased.
We can expect more statutes like this in the future.
And what about the case where “everybody knows” that a person is guilty of a crime but admissible evidence of such guilt is lacking? Is it acceptable for a governmental body to enact a new law that will make the inadmissible evidence admissible? Illinois legislators think so. And the case in question is People of the State of Illinois v. Drew Peterson.
For those unfamiliar with this case, Drew Peterson is a former police officer. He has been married four times. In 2007 his fourth wife, Stacy, disappeared. Prior to that, in 2004, the body of his third wife, Kathleen Savio, was found in a bathtub. Her death was initially ruled as an accidental drowning.
But following Stacy’s disappearance, new interest developed concerning the death of Kathleen Savio. Her body was exhumed and a forensic examination performed. The medical examiner concluded that Kathleen Savio died of drowning following a struggle. The coroner then reclassified Kathleen Savio’s death as homicide staged to look like an accident. The suspect was Drew Peterson.
But Drew Peterson continued to proclaim his innocence while thumbing his nose at prosecutors. He even consented to interviews on television news shows. As for the Will County States Attorney, he may have wanted to charge Drew Peterson but his entire case could be summarized in four simple words: smoke but no fire.
As the facts of the case have became better known, it was reported that prior to her demise Kathleen Savio allegedly told a police officer that she had learned of an affair between Drew Peterson and Stacy, the now missing woman who was later to become Peterson’s forth wife. Savio also allegedly complained that Drew Peterson was physically abusive and that she was afraid that he might kill her. The problem was that with Kathleen Savio being dead, these statements were strictly hearsay remarks incapable of being cross-examined. They would not be admissible at trial.
And so, on December 8, 2008, the State of Illinois enacted a new law. Codified as 725 ILCS 5/115-10.6, the law is entitled: Hearsay exception for intentional murder of a witness. Nicknamed the Drew Peterson law, the statute provides that hearsay evidence may be admissible if three criteria are met:
(1) first, that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness;
(2) second, that the time, content, and circumstances of the statements provide sufficient safeguards of reliability;
(3) third, the interests of justice will best be served by admission of the statement into evidence.
For criminal defense lawyers, this statute creates a WTF moment.
For example, the statute is supposedly designed to create guidelines for the admissibility of evidence that might establish a defendant’s guilt. But the very first paragraph of the statute requires a finding that the defendant is already guilty of the murder charge for which he stands accused. This is circular reasoning. This is a dog chasing its tail. And what about the presumption of innocence?
The second paragraph requires the judge to determine that the statement or statements are sufficiently reliable to be admitted into evidence. But nowhere in the statute are guidelines established to determine such reliability. This is like an umpire being asked to call balls and strikes without first defining the strike zone. That being said, allow for the possibility that reliability will be proportional to the amount of media attention being given to the case.
The final paragraph, that “the interests of justice will best be served by admission of the statement” is simply Kafkaesque. The “interests of justice?” What’s that? The language of paragraph three is really a secret code for the judge. Translated, it means: everybody knows this defendant committed the crime - just get it done.
We live in an up side down world. Lip service is paid to constitutional guarantees, even as they are being erased.
We can expect more statutes like this in the future.
Tuesday, January 19, 2010
THE BACHELOR
Today I move away from the seriousness of the law to the triviality of network television.
Last night I saw a train wreck of a show called The Bachelor. Actually, I only watched about 40 minutes of the program. It’s pretty horrible. I don’t plan on watching it again.
But first: where does this show come from? It seems to be a blend of a television show from decades ago called The Dating Game and the current, immensely popular, American Idol.
The Dating Game was also pretty bad and it worked like this: A bachelor would ask questions of three bachelorettes who were hidden from his view by a screen. Based upon the answers, he would choose one of the three and they would go on a date to some exotic location. Sometimes the roles were reversed and a bachelorette would have to choose from among three bachelors.
On The Dating Game, the questions were usually lame and designed to evoke mildly suggestive responses. For example, a bachelorette might ask, “Bachelor number one. If I were a fish, what kind of bait would you use to catch me?” And then bachelor number one would have to show that he was on his toes by coming back with a provocative and titillating response.
The Dating Game also made a big deal of announcing that the dates of its winners were chaperoned. And so I developed this mental image of the bachelor and the bachelorette occupying different hotel rooms while an armed chaperone patrolled the hallway preventing any late night booty calls and a resulting network scandal.
Of course everyone is familiar with American Idol. That show features genuinely talented young people performing song and dance routines, with the television audience paring down the numbers on a weekly basis until finally there is only one person left. That person is then crowned the new American Idol.
But now back to The Bachelor.
The premise of the show seems to be that a bachelor dates a throng of different women, but each week must eliminate some until only one is left. I learned this morning that the show is supposed to culminate with an actual marriage proposal.
But frankly, I found the show to be offensive. First romantic relationships are important and should not be forced or trivialized. Second, the show was demeaning to women. I mean here is a guy who has his choice from among many attractive partners and I don’t even know how he remembers all of their names. On the other hand, the women have to vie for the attention of just this one man. And vie they do.
These women then go out on little dates with the bachelor and they are followed around with cameras and sound equipment. These dates typically culminate with some predictable dialogue about whether there has been “a connection.” The dates also end with some of the women looking weepy and desperate.
But the show itself culminates with something called “the rose ceremony.” The women are all brought together in one room and the bachelor is given some roses to hand out to them. The problem is that there are fewer roses than women. So one by one the bachelor will hand a rose to a woman, the significance being that the woman will return for another round of dangling. Finally there are only three women left but just one rose. The host of the show passes the rose to the bachelor and makes an announcement that “this is the final rose of the night.” The bachelor then gives the final rose to one of the three remaining women, which means that two are about to be tossed off the ship. But the bachelor, forever the gentleman, says his fond goodbyes to the non-rose women. He is very polite and proper, tells them about how they are good people, how difficult it was to choose and blah, blah, blah. The losers then go off crying. I would have preferred to have one of them slap the bachelor in the face and tell him that he can keep his freaking rose. But nobody seems to have a thick skin on this show.
It also occurred to me that these twenty-somethings just didn’t seem to have much practical knowledge about relationships. They are not old enough. They have not been around the block.
Perhaps the producers should develop a spinoff of The Bachelor called "The Ex" in which all of the people are older, divorced and have returned from the front lines of failed relationships. Now that is a show that I would watch at least once.
Last night I saw a train wreck of a show called The Bachelor. Actually, I only watched about 40 minutes of the program. It’s pretty horrible. I don’t plan on watching it again.
But first: where does this show come from? It seems to be a blend of a television show from decades ago called The Dating Game and the current, immensely popular, American Idol.
The Dating Game was also pretty bad and it worked like this: A bachelor would ask questions of three bachelorettes who were hidden from his view by a screen. Based upon the answers, he would choose one of the three and they would go on a date to some exotic location. Sometimes the roles were reversed and a bachelorette would have to choose from among three bachelors.
On The Dating Game, the questions were usually lame and designed to evoke mildly suggestive responses. For example, a bachelorette might ask, “Bachelor number one. If I were a fish, what kind of bait would you use to catch me?” And then bachelor number one would have to show that he was on his toes by coming back with a provocative and titillating response.
The Dating Game also made a big deal of announcing that the dates of its winners were chaperoned. And so I developed this mental image of the bachelor and the bachelorette occupying different hotel rooms while an armed chaperone patrolled the hallway preventing any late night booty calls and a resulting network scandal.
Of course everyone is familiar with American Idol. That show features genuinely talented young people performing song and dance routines, with the television audience paring down the numbers on a weekly basis until finally there is only one person left. That person is then crowned the new American Idol.
But now back to The Bachelor.
The premise of the show seems to be that a bachelor dates a throng of different women, but each week must eliminate some until only one is left. I learned this morning that the show is supposed to culminate with an actual marriage proposal.
But frankly, I found the show to be offensive. First romantic relationships are important and should not be forced or trivialized. Second, the show was demeaning to women. I mean here is a guy who has his choice from among many attractive partners and I don’t even know how he remembers all of their names. On the other hand, the women have to vie for the attention of just this one man. And vie they do.
These women then go out on little dates with the bachelor and they are followed around with cameras and sound equipment. These dates typically culminate with some predictable dialogue about whether there has been “a connection.” The dates also end with some of the women looking weepy and desperate.
But the show itself culminates with something called “the rose ceremony.” The women are all brought together in one room and the bachelor is given some roses to hand out to them. The problem is that there are fewer roses than women. So one by one the bachelor will hand a rose to a woman, the significance being that the woman will return for another round of dangling. Finally there are only three women left but just one rose. The host of the show passes the rose to the bachelor and makes an announcement that “this is the final rose of the night.” The bachelor then gives the final rose to one of the three remaining women, which means that two are about to be tossed off the ship. But the bachelor, forever the gentleman, says his fond goodbyes to the non-rose women. He is very polite and proper, tells them about how they are good people, how difficult it was to choose and blah, blah, blah. The losers then go off crying. I would have preferred to have one of them slap the bachelor in the face and tell him that he can keep his freaking rose. But nobody seems to have a thick skin on this show.
It also occurred to me that these twenty-somethings just didn’t seem to have much practical knowledge about relationships. They are not old enough. They have not been around the block.
Perhaps the producers should develop a spinoff of The Bachelor called "The Ex" in which all of the people are older, divorced and have returned from the front lines of failed relationships. Now that is a show that I would watch at least once.
Monday, January 18, 2010
IT AIN'T WHAT IT USED TO BE, BUT IT'LL DO
Becoming a plaintiffs'personal injury lawyer in 2010 is a little like becoming a cowboy in 1910. The landscape has changed drastically over the past thirty or forty years.
Propaganda spawned by the insurance industry has influenced juror attitudes even before the summons for jury service has been received. Today’s prospective juror probably believes, incorrectly, that the courts are drowning in a sea of frivolous lawsuits, that verdicts are spiraling out of control and that the American civil justice system is a slot machine that always pays off. Certainly the advertising and websites of some law firms do little to dispel this belief. I regularly see some law firms advertise that they win 96% or 98% of their cases, which seems unlikely unless settlements are factored in - in which case everybody is doing it. Some law firms also list the “millions” of dollars they have won for their clients, similar to how McDonalds used to advertise the number of hamburgers it sold.
But times have changes and experienced lawyers know that. In truth, today's jurors are often skeptical about our clients and their cases. And if that weren’t bad enough, there are a lot of fingers in the litigation pie. If and when the jury awards the plaintiff a verdict, it is tantamount to opening up a picnic basket in the forest. Before you can ask who’s hungry, ants have appeared and the next thing you know they are crawling all over the sandwiches. Similarly a plaintiff's verdict may get eaten away by hospital liens, doctor liens, Medicare liens and health insurance liens. Sometimes an employer based ERISA plan will arrive at the scene taking the entire award for itself, leaving nothing behind for the plaintiff and his or her attorney. Adding to the bleak times: legislation designed to limit the amount of money that juries can award.
In this environment, one would think that plaintiffs’ lawyers would simply pick up their chips from the table and move on. But we don’t. Why? Because we can’t.
Consider Sam Peckinpah’s immortal film, The Wild Bunch. First released in 1969, the fictional events of the story take place in 1913.
The Wild Bunch is about antiheros. These are cowboys and the old west is dying. Being pursued for their crimes, they flee to Mexico where almost by inadvertence they become involved in a tug of war between the rebel forces of Pancho Villa and a corrupt national army. At the climax of the film, four members of the bunch sacrifice their lives in a violent act of redemption that liberates a small town from the savagery of a corrupt and sadistic Mexican general.
After the battle, only one member of the bunch remains: Freddie Sykes. Sykes encounters Deke Thornton, a former member of the bunch who had been forced at gunpoint to hunt them down. Now freed from these chains, Deke wants back in. But back into - what? The world that once existed and gave meaning to his life has evaporated. But Sykes welcomes Thornton back nonetheless with these final words that will define their future: It ain't what it used to be, but it’ll do.
That’s how it has become for plaintiffs' lawyers. The truth is that we are addicts and our addiction is to justice. It’s getting increasingly difficult for a plaintiff’s lawyer to obtain justice. But it still happens once in a while, and when it does, it is magical. And that’s what keeps us coming back.
It ain't what it used to be, but it’ll do.
Propaganda spawned by the insurance industry has influenced juror attitudes even before the summons for jury service has been received. Today’s prospective juror probably believes, incorrectly, that the courts are drowning in a sea of frivolous lawsuits, that verdicts are spiraling out of control and that the American civil justice system is a slot machine that always pays off. Certainly the advertising and websites of some law firms do little to dispel this belief. I regularly see some law firms advertise that they win 96% or 98% of their cases, which seems unlikely unless settlements are factored in - in which case everybody is doing it. Some law firms also list the “millions” of dollars they have won for their clients, similar to how McDonalds used to advertise the number of hamburgers it sold.
But times have changes and experienced lawyers know that. In truth, today's jurors are often skeptical about our clients and their cases. And if that weren’t bad enough, there are a lot of fingers in the litigation pie. If and when the jury awards the plaintiff a verdict, it is tantamount to opening up a picnic basket in the forest. Before you can ask who’s hungry, ants have appeared and the next thing you know they are crawling all over the sandwiches. Similarly a plaintiff's verdict may get eaten away by hospital liens, doctor liens, Medicare liens and health insurance liens. Sometimes an employer based ERISA plan will arrive at the scene taking the entire award for itself, leaving nothing behind for the plaintiff and his or her attorney. Adding to the bleak times: legislation designed to limit the amount of money that juries can award.
In this environment, one would think that plaintiffs’ lawyers would simply pick up their chips from the table and move on. But we don’t. Why? Because we can’t.
Consider Sam Peckinpah’s immortal film, The Wild Bunch. First released in 1969, the fictional events of the story take place in 1913.
The Wild Bunch is about antiheros. These are cowboys and the old west is dying. Being pursued for their crimes, they flee to Mexico where almost by inadvertence they become involved in a tug of war between the rebel forces of Pancho Villa and a corrupt national army. At the climax of the film, four members of the bunch sacrifice their lives in a violent act of redemption that liberates a small town from the savagery of a corrupt and sadistic Mexican general.
After the battle, only one member of the bunch remains: Freddie Sykes. Sykes encounters Deke Thornton, a former member of the bunch who had been forced at gunpoint to hunt them down. Now freed from these chains, Deke wants back in. But back into - what? The world that once existed and gave meaning to his life has evaporated. But Sykes welcomes Thornton back nonetheless with these final words that will define their future: It ain't what it used to be, but it’ll do.
That’s how it has become for plaintiffs' lawyers. The truth is that we are addicts and our addiction is to justice. It’s getting increasingly difficult for a plaintiff’s lawyer to obtain justice. But it still happens once in a while, and when it does, it is magical. And that’s what keeps us coming back.
It ain't what it used to be, but it’ll do.
Sunday, January 17, 2010
HAIR
A razor has never come upon my head, for I have been a Nazirite to God from my mother's womb. If my head is shaved, then my strength will leave me, and I shall become weak and be like any other man.
From the Holy Bible
Judges 16:17
The Mesquite Independent School District would have us believe it runs a tight ship. Here is its dress code: http://www.mesquiteisd.org/students/policies/standarddresspolicy.asp
While girls can apparently grow their hair as long as they like, there are special rules for boys: Hair is to be out of the eyes, not extend below the bottom of the earlobes and cut so that it does not extend over the collar (dress shirt).
As it turns out, the “hair” rule is being defied by four year-old Taylor Pugh. The school has responded by imposing a curious form of suspension: Taylor comes to school but is isolated from his classmates. A David v. Goliath battle looms. Make no mistake about it folks: this is about power. As the stakes rise, who will be the first to fold and throw in the cards? I’m predicting the school district.
Indeed, the school district has already offered a compromise. It will allow Taylor to rejoin his classmates if he wears his hair in tight braids. Anybody can read the subtext: the school district is looking for a way to save face.
Ah, the forces of government. Entrusted by voters to preserve our freedoms, too often our elected officials seek instead to take them away. Indeed, I am sometimes astounded over the actions of people once they are vested with even a minimal amount of power over their fellow man. For example, I have seen school board members try to use their personal religious beliefs to clean out school libraries of books they deem to be offensive. Because freedom is so precious, I think it is best that we fight these battles with a full-court press.
Besides, it seems to me that the "hair" war has already been fought. All we have to do is look to the past, the late 1960’s and most of the 1970’s. Both boys and men wore their hair long. Yes, there were attempts to stop it, but in the end, the hair won.
Hang in there little Taylor. You will win too.
From the Holy Bible
Judges 16:17
The Mesquite Independent School District would have us believe it runs a tight ship. Here is its dress code: http://www.mesquiteisd.org/students/policies/standarddresspolicy.asp
While girls can apparently grow their hair as long as they like, there are special rules for boys: Hair is to be out of the eyes, not extend below the bottom of the earlobes and cut so that it does not extend over the collar (dress shirt).
As it turns out, the “hair” rule is being defied by four year-old Taylor Pugh. The school has responded by imposing a curious form of suspension: Taylor comes to school but is isolated from his classmates. A David v. Goliath battle looms. Make no mistake about it folks: this is about power. As the stakes rise, who will be the first to fold and throw in the cards? I’m predicting the school district.
Indeed, the school district has already offered a compromise. It will allow Taylor to rejoin his classmates if he wears his hair in tight braids. Anybody can read the subtext: the school district is looking for a way to save face.
Ah, the forces of government. Entrusted by voters to preserve our freedoms, too often our elected officials seek instead to take them away. Indeed, I am sometimes astounded over the actions of people once they are vested with even a minimal amount of power over their fellow man. For example, I have seen school board members try to use their personal religious beliefs to clean out school libraries of books they deem to be offensive. Because freedom is so precious, I think it is best that we fight these battles with a full-court press.
Besides, it seems to me that the "hair" war has already been fought. All we have to do is look to the past, the late 1960’s and most of the 1970’s. Both boys and men wore their hair long. Yes, there were attempts to stop it, but in the end, the hair won.
Hang in there little Taylor. You will win too.
Tuesday, January 12, 2010
Super Lawyers
I just received a copy of a professional magazine entitled Super Lawyers. I looked to see if my name and picture were inside. They weren't. But that’s okay. Like Mark Twain, I wouldn’t want to belong to any club that would have me as a member.
Still the truth must be told. Some of the lawyers enshrined in this magazine are very good. Some.
But what I really wonder about is who makes the inclusion / exclusion decision? And if one is admitted into this elite club of Super Lawyers, who gets his or her picture displayed on the front cover? Or on the inside cover? Or how about the back of the magazine? Maybe coins are flipped. But for some reason I don’t think that’s the way it works.
As for me, I don’t ever want to be a Super Lawyer. I think it is better to lie in the weeds, to feign incompetence and be underestimated. I want to blend in with the background, like a chameleon. Sun Tzu would agree.
I also wonder what’s next on the horizon. Maybe “Super Duper Lawyers.” Presumably the Super Duper Lawyer magazine will have fewer pages than this one.
Finally, there is almost something silly about being called a Super Lawyer. The term sounds like it belongs in a comic book. Perhaps we should expect our Super Lawyers to have secret identities. But that would defeat the purpose of being a Super Lawyer, wouldn’t it?
Still the truth must be told. Some of the lawyers enshrined in this magazine are very good. Some.
But what I really wonder about is who makes the inclusion / exclusion decision? And if one is admitted into this elite club of Super Lawyers, who gets his or her picture displayed on the front cover? Or on the inside cover? Or how about the back of the magazine? Maybe coins are flipped. But for some reason I don’t think that’s the way it works.
As for me, I don’t ever want to be a Super Lawyer. I think it is better to lie in the weeds, to feign incompetence and be underestimated. I want to blend in with the background, like a chameleon. Sun Tzu would agree.
I also wonder what’s next on the horizon. Maybe “Super Duper Lawyers.” Presumably the Super Duper Lawyer magazine will have fewer pages than this one.
Finally, there is almost something silly about being called a Super Lawyer. The term sounds like it belongs in a comic book. Perhaps we should expect our Super Lawyers to have secret identities. But that would defeat the purpose of being a Super Lawyer, wouldn’t it?
Saturday, January 9, 2010
Law & Order SVU - The Worst Show on Television?
This has to be one of the worst shows on television, albeit entertaining, although not for the reasons the producers intended. In other words, it is so bad that it is good. I don't watch much television, but on a cold Saturday I decided to watch an episode of this show, which is playing on some kind of marathon today on the USA Network.
Summary of this episode:
A murdered woman is linked to a father and son and apparently had sex with both. Son is angry at father for his not-so-youthful indiscretion. But they unite against the common enemy: the DA's office.
Mistake #1: Divide and conquer tactics against father and son defendant fail. So the ADA decides to prosecute both.
the ADA is a 30-something woman with reddish hair and thick lips. Attractive, but doesn't smile.
Mistake #2: Both father and son are innocent of the murder. So ADA is prosecuting the wrong people.
Mistake #3: There is a hung jury that doesn't convict the innocent defendants. So now the ADA is miffed. So what does the ADA do? Brings in the "hold out" juror and gives her the third degree. Yes, there must have been jury tampering. Spill the beans or you, Ms. Juror, are going to jail.
SPOILER ALERT: The cops find out that there was a hidden camera in the apartment where the murder took place Who did it? Not the defendants but - get this - the defendants' lawyer! (The defendant's lawyer is a woman, also 30-something and at least as attractive as the ADA. This creates some type of sexual undercurrent to a show that is already about sex crimes.)
Mistake #4: Instead of arresting the "criminal lawyer" they invite everybody (guilty lawyer, innocent defendants) to headquarters where they intend to premier the video. As the tape rolls, the guilty lawyer knows what's coming so she excuses herself and leaves the room. The cops/prosecutors just let her go saying something like "she's going nowhere." Ha!
Mistake #5: Attractive guilty woman lawyer goes up to the roof of the building, setting off alarms. Everybody heads up there, including the innocent defendants. The woman lawyer then walks around on the ledge in heels, looking leggy and making a scene about how she will jump. The innocent "son" defendant goes to her to try and talk her down. Instead she grabs him and they BOTH fall off the building. In final irony, they land and die on the roof of a squad car.
Bottom line: 2 lives lost. Police + DA = Idiots.
Summary of this episode:
A murdered woman is linked to a father and son and apparently had sex with both. Son is angry at father for his not-so-youthful indiscretion. But they unite against the common enemy: the DA's office.
Mistake #1: Divide and conquer tactics against father and son defendant fail. So the ADA decides to prosecute both.
the ADA is a 30-something woman with reddish hair and thick lips. Attractive, but doesn't smile.
Mistake #2: Both father and son are innocent of the murder. So ADA is prosecuting the wrong people.
Mistake #3: There is a hung jury that doesn't convict the innocent defendants. So now the ADA is miffed. So what does the ADA do? Brings in the "hold out" juror and gives her the third degree. Yes, there must have been jury tampering. Spill the beans or you, Ms. Juror, are going to jail.
SPOILER ALERT: The cops find out that there was a hidden camera in the apartment where the murder took place Who did it? Not the defendants but - get this - the defendants' lawyer! (The defendant's lawyer is a woman, also 30-something and at least as attractive as the ADA. This creates some type of sexual undercurrent to a show that is already about sex crimes.)
Mistake #4: Instead of arresting the "criminal lawyer" they invite everybody (guilty lawyer, innocent defendants) to headquarters where they intend to premier the video. As the tape rolls, the guilty lawyer knows what's coming so she excuses herself and leaves the room. The cops/prosecutors just let her go saying something like "she's going nowhere." Ha!
Mistake #5: Attractive guilty woman lawyer goes up to the roof of the building, setting off alarms. Everybody heads up there, including the innocent defendants. The woman lawyer then walks around on the ledge in heels, looking leggy and making a scene about how she will jump. The innocent "son" defendant goes to her to try and talk her down. Instead she grabs him and they BOTH fall off the building. In final irony, they land and die on the roof of a squad car.
Bottom line: 2 lives lost. Police + DA = Idiots.
Wednesday, January 6, 2010
SPEEDERS SHOULD BE SEEN AND NOT HEARD
Can a motorist be charged and convicted of a speeding violation because the police officer “heard” his or her automobile driving at an excessive rate of speed? Apparently that question is a close one in the State of Ohio. But now the Court of Appeals for the Ninth Judicial District has spoken, sort of, in State of Ohio v. Daniel W. Freitag, 2009-Ohio-6370.
The facts, as recited in the opinion of the Court, were as follows:
On October 18, 2007 a man by the name of Daniel Freitag was driving his SUV through the village of West Salem when he pulled into the driveway of his business, which was located outside of the town. There he was pulled over by Patrolman Ken Roth of the village police department. Freitag was then charged with speeding, in violation of a local ordinance.
The damning evidence: Officer Roth’s testimony was that he was parked on the side of U.S. 42 when he “heard” Mr. Freitag’s car traveling at a speed he believed to be in excess of 35 m.p.h. Officer Roth testified, “As it approached I could hear the vehicle on the roadway which based on my training and experience it is consistent with a vehicle that was in excess of posted speed limit.” Officer Roth further testified that he learned how to audibly determine if a vehicle was speeding through his experience and training with an unidentified field-training officer when he first began working in the field seven years previous.
Mr. Freitag was found guilty, but the Court of Appeals reversed stating: It is simply incredible, in the absence of reliable scientific, technical, or other specialized information, to believe that one could hear an unidentified vehicle “speeding” without being able to determine the actual speed of the vehicle. * * * In addition, although he admitted that there was another vehicle on the roadway and traveling the same direction as Freitag’s at the time, the officer did not explain why he could hear and distinguish Freitag’s vehicle, while he could not even hear the other traffic. * * * A thorough review of the record compels this Court to conclude that the trier of fact lost its way and committed a manifest miscarriage of justice in convicting Freitag of speeding.
Incredibly the opinion was not unanimous. A dissenting justice would have affirmed the conviction. Yikes.
The facts, as recited in the opinion of the Court, were as follows:
On October 18, 2007 a man by the name of Daniel Freitag was driving his SUV through the village of West Salem when he pulled into the driveway of his business, which was located outside of the town. There he was pulled over by Patrolman Ken Roth of the village police department. Freitag was then charged with speeding, in violation of a local ordinance.
The damning evidence: Officer Roth’s testimony was that he was parked on the side of U.S. 42 when he “heard” Mr. Freitag’s car traveling at a speed he believed to be in excess of 35 m.p.h. Officer Roth testified, “As it approached I could hear the vehicle on the roadway which based on my training and experience it is consistent with a vehicle that was in excess of posted speed limit.” Officer Roth further testified that he learned how to audibly determine if a vehicle was speeding through his experience and training with an unidentified field-training officer when he first began working in the field seven years previous.
Mr. Freitag was found guilty, but the Court of Appeals reversed stating: It is simply incredible, in the absence of reliable scientific, technical, or other specialized information, to believe that one could hear an unidentified vehicle “speeding” without being able to determine the actual speed of the vehicle. * * * In addition, although he admitted that there was another vehicle on the roadway and traveling the same direction as Freitag’s at the time, the officer did not explain why he could hear and distinguish Freitag’s vehicle, while he could not even hear the other traffic. * * * A thorough review of the record compels this Court to conclude that the trier of fact lost its way and committed a manifest miscarriage of justice in convicting Freitag of speeding.
Incredibly the opinion was not unanimous. A dissenting justice would have affirmed the conviction. Yikes.
Sunday, January 3, 2010
Anatomy of the Truth
Trials are ostensibly about truth. Yes, lawyers always tell their clients to tell the truth. And as all trial lawyers know, the preparation of one’s client for such truth-telling can take many hours and sometimes even days. Of course an ethical lawyer cannot knowingly tell his or her client to lie. To do so is to suborn perjury, a criminal offense in its own right.
But what happens if the lawyer decides to educate his or her client on the law before asking the critical words, “What happened?” The information the lawyer will obtain is likely to be much more useful and pliable than had the client simply been invited to account the events from the onset.
On this point, consider the classic film Anatomy of a Murder made by Otto Preminger in 1959. The film is based upon an actual murder that took place in the Upper Peninsula of Michigan and which was successfully defended by attorney John Voelker. Voelker wrote the novel under the pen name of Robert Traver. It is noteworthy that Voelker went on to become a justice of the Michigan Supreme Court. The book and film are now considered to be American classics.
So what is the case in Anatomy of a Murder about? These are the facts beyond dispute:
1. Frederick Manion is an army lieutenant with a short fuse.
2. He is married to an attractive young woman, Laura, who blatantly flirts with other men. They live in a trailer.
3. One night, while the lieutenant stays in the trailer, Laura dresses seductively and goes to a bar.
4. At the bar, she flirts with Barney Quill, the bar’s owner.
5. Later, somehow, Laura winds up in Quill’s car.
6. Laura eventually arrives home.
7. Thereafter Lt. Manion goes to the bar where he shoots and kills Barney Quill, in front of witnesses.
8. When police arrive at the couple’s trailer, Laura has been beaten.
The defense is temporary insanity: the lieutenant killed Quill the result of an “irresistible impulse” because Barney Quill had raped Laura in his car. (Apparently “irresistible impulse” was a recognized form of temporary legal insanity in Michigan at the time of the trial.)
The prosecution’s theory is that there was never a rape and that the lieutenant killed Quill in a jealous rage.
What about the bruised Laura? Well the bruises were obtained either (a) as a result of resisting the rape or (b) inflicted by the jealous lieutenant. But a physical examination of Laura reveals the presence of no semen.
Although some of the courtroom scenes often seem unrealistic, theatrical and contrived, there is still much to be observed in this film, most significantly that neither the prosecution nor the defense seem very concerned about the events as they actually occurred.
Of course the defense attorney knows from the beginning that insanity is the only possible defense in this case. And so he informs the lieutenant of this from the onset and then suggests that they meet the following day to discuss the facts. When he returns the next day, what do you suppose he hears?
But the prosecution is no better. At one point the prosecution appears to have the case in the bag. But instead of resting, the prosecution calls an extra witness or two to guild the lily – almost always a mistake. Needless to say, the prosecution’s case unravels which forces the prosecution to take desperate measures. And so that same evening the prosecution interviews other prisoners who have been in contact with the lieutenant, looking for a jailhouse snitch. Of course they find one. The snitch then testifies the lieutenant confided in him that his insanity defense was all a sham. On cross-examination the snitch is asked if he has been promised leniency by the prosecution for cooperating in this case. Oh, of course not.
Leaving the film and returning to reality: An effective preparation tool for trial lawyers is a method that has come to be called psychodrama. Initially developed as a form of mental health therapy, psychodrama involves elements of theater and role-playing. Events that give rise to the trial are recreated during preparation with the lawyer and others, perhaps even the client, playing roles of the participants. This inevitably leads to new and useful insights, the discovery of trial themes and “the story” of the case. But is it truth?
Perhaps Pontius Pilate was ahead of the curve more than 2,000 years ago when he presided at the trial of Jesus. According to the Gospel of John:
Pontius Pilate: Are you a king then?
Jesus: You say that I am a king. For this reason I have been born, and for this reason I have come into the world that I should testify to the truth. Everyone who is of the truth listens to my voice.
Pilate: What is truth?
It’s a good question. What is truth?
But what happens if the lawyer decides to educate his or her client on the law before asking the critical words, “What happened?” The information the lawyer will obtain is likely to be much more useful and pliable than had the client simply been invited to account the events from the onset.
On this point, consider the classic film Anatomy of a Murder made by Otto Preminger in 1959. The film is based upon an actual murder that took place in the Upper Peninsula of Michigan and which was successfully defended by attorney John Voelker. Voelker wrote the novel under the pen name of Robert Traver. It is noteworthy that Voelker went on to become a justice of the Michigan Supreme Court. The book and film are now considered to be American classics.
So what is the case in Anatomy of a Murder about? These are the facts beyond dispute:
1. Frederick Manion is an army lieutenant with a short fuse.
2. He is married to an attractive young woman, Laura, who blatantly flirts with other men. They live in a trailer.
3. One night, while the lieutenant stays in the trailer, Laura dresses seductively and goes to a bar.
4. At the bar, she flirts with Barney Quill, the bar’s owner.
5. Later, somehow, Laura winds up in Quill’s car.
6. Laura eventually arrives home.
7. Thereafter Lt. Manion goes to the bar where he shoots and kills Barney Quill, in front of witnesses.
8. When police arrive at the couple’s trailer, Laura has been beaten.
The defense is temporary insanity: the lieutenant killed Quill the result of an “irresistible impulse” because Barney Quill had raped Laura in his car. (Apparently “irresistible impulse” was a recognized form of temporary legal insanity in Michigan at the time of the trial.)
The prosecution’s theory is that there was never a rape and that the lieutenant killed Quill in a jealous rage.
What about the bruised Laura? Well the bruises were obtained either (a) as a result of resisting the rape or (b) inflicted by the jealous lieutenant. But a physical examination of Laura reveals the presence of no semen.
Although some of the courtroom scenes often seem unrealistic, theatrical and contrived, there is still much to be observed in this film, most significantly that neither the prosecution nor the defense seem very concerned about the events as they actually occurred.
Of course the defense attorney knows from the beginning that insanity is the only possible defense in this case. And so he informs the lieutenant of this from the onset and then suggests that they meet the following day to discuss the facts. When he returns the next day, what do you suppose he hears?
But the prosecution is no better. At one point the prosecution appears to have the case in the bag. But instead of resting, the prosecution calls an extra witness or two to guild the lily – almost always a mistake. Needless to say, the prosecution’s case unravels which forces the prosecution to take desperate measures. And so that same evening the prosecution interviews other prisoners who have been in contact with the lieutenant, looking for a jailhouse snitch. Of course they find one. The snitch then testifies the lieutenant confided in him that his insanity defense was all a sham. On cross-examination the snitch is asked if he has been promised leniency by the prosecution for cooperating in this case. Oh, of course not.
Leaving the film and returning to reality: An effective preparation tool for trial lawyers is a method that has come to be called psychodrama. Initially developed as a form of mental health therapy, psychodrama involves elements of theater and role-playing. Events that give rise to the trial are recreated during preparation with the lawyer and others, perhaps even the client, playing roles of the participants. This inevitably leads to new and useful insights, the discovery of trial themes and “the story” of the case. But is it truth?
Perhaps Pontius Pilate was ahead of the curve more than 2,000 years ago when he presided at the trial of Jesus. According to the Gospel of John:
Pontius Pilate: Are you a king then?
Jesus: You say that I am a king. For this reason I have been born, and for this reason I have come into the world that I should testify to the truth. Everyone who is of the truth listens to my voice.
Pilate: What is truth?
It’s a good question. What is truth?
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