Think carefully before going to court

I just heard from a client who was upset about a bill.

His company had performed work for another company, which had not paid. We (on his behalf) threatened to sue the nonpaying company. They did not respond. We did sue the nonpaying company for payment--plus attorney fees, under an Oregon statute.

We conducted discovery and took depositions. They hired an attorney of their own, lodged counterclaims, and explored the full gamut of their legal rights to defend themselves.

Eventually, the case settled with each party walking away with nothing--meaning no attorney fees, either. Now the client cannot remember how we got into litigation that ended up costing him far more money than he was seeking to start with.

Moral of the story for attorneys: Always warn clients exactly how badly initiating legal action can turn out. Moral of the story for clients: Once you start the legal machinery, it can be expensive to turn off.

Music on the Half Shell

Each summer, my fair city plays host to a musical performance every Tuesday night. The performer plays on the half shell, a band shell erected in a park on the Umpqua River. Folks reserve their seats by spreading blankets in front of the shell on the morning of the concert.

This Tuesday was Bruce Hornsby. I arrived at the park at 5:15 a.m., and mine was about the 400th blanket there. I swear, there was no parking at that hour at the park to get out and place a blanket, but we were still in visual range of the stage.

We packed a picnic and drinks and headed for the park an hour before start time. Maybe it is just the ice cream talking, but in the warm sunlight of the early evening, it was a tremendous experience.

I'm ordinarily not much of a pop concert guy. My experience consists of Chicago (1988--and clearly missing Peter Cetera), the Rolling Stones (1990--Ruby Tuesday was the only song that played well) and ... well, Music on the Half Shell (2005).

That said, Bruce Hornsby presented the greatest pop concert I have ever attended. That's just the way it is.

Ode to Fantasy Football

Why do I love fantasy football? This is a question that has come up in many contexts--discussions with colleagues, therapists, and tolerant but vaguely irritated spouses.

The simple answer is "escapism." In reality, I work about 50 hours per week behind a desk in a profession that can be fascinating, but that can be equally frustrating. But in my mind's eye, I can rush for 150 yards and three touchdowns every single week. And if members of my team are on television, I can watch myself score. As it were.

The more complex answer has to do with male sociology. We men love competition. We love to display our skills for the many women that we know desire us for our fierce victories. We do not object to an element of luck, because, statistically, we know that it will eventually turn our way. We like to interact by talking trash. All of these things add up to Fantasy Football.

My team this year is The Franchise, which is also what we have taken to calling my younger son. (At four months old, the G-Man is showing every sign of preparing for a career as an NFL linebacker. Of course, at four months, most girls are too, but that is neither here nor there.) The Franchise will be squashing competition around the globe, but most especially in Kansas and Missouri, where my esteemed elder brother and father live.

For the next six months, we will talk trash and plot trades. We will track scores and curse the football gods. We may be vanquished on occasion, but we shall remember only the victories. This is Fantasy Football season, and we are men.

My woman and her weapon

The beloved spouse is in law enforcement. This means she has a cool badge that she does not let me play with. On occasion, she also gets the opportunity to do something cool.

Today, she tested a highway patrol setup that is meant to simulate a potentially lethal encounter with a suspect. There were four scenarios in which she was required to speak from a script, and then react to events occurring at a range of five to 15 feet.

In the first, a driver is asked for his license. He pulls out a ... handgun. The beloved spouse had less than a second to pull her weapon and fire.

In the second, a driver is asked for his license. He pulls out a ... wallet. The beloved spouse indicated that she would have lost points for blowing away that particular driver.

In the third, she asks a driver to get out of his car. He does. He is a large, muscular, and obviously angry individual. He storms toward her, ignoring her commands to stop.

In the final scenario, she drives into a rest stop and sees one person, wielding a handgun, leaning in the window of a car and having an animated conversation with an individual in the car. She has only seconds to determine whether he is the carjacker or the car's owner, defending himself.

Results? Body count was two bad guys and no good guys--plus the carjacked vehicle took some damage. (She said she needs some target practice to improve.) The angry guy who came at her took four bullets arrayed between groin and chest.

Remind me not to tick her off.

Separated at birth?

John J. Roberts

David V. Brewer

So this is the President's nominee for the Supreme Court. From what I have seen, it seems that John J. Roberts is a lot like David V. Brewer--my personal choice for the post--except that Roberts went to Harvard and Harvard Law instead of UC-Davis and the University of Oregon.

Sen. Joseph Lieberman, one of 14 senators who helped avoid a confrontation over judges earlier this year, said their message to Bush essentially was, "Don't send us an extremist that's going to blow the place up, and first look is that that's exactly what he has not done."

"In other words, he's sent us somebody that's got impressive academic and legal credentials and seems to have a record of personal honor," Lieberman said.

Also, Nina Totenberg of NPR reported that Roberts is known for working harder than everyone else, just like another judge I know.

At any rate, this will free up Dave to take over when Rehnquist retires.

That giddy feeling

With every new client, I get a little rush to the pleasure center of my brain. My favorite employers would like to see me get addicted to the rush, and I can understand why. New clients get you one-third of the way to a successful practice. After that, you have to perform timely work of high quality, and then finish by following up to be sure that the processes you begin are completed by the client.

The second part is not a problem. My work is of high quality (if I say so myself), and I get it done as quickly as possible, because I know that clients come to see me when they feel the need--not 30 days before they feel the need. The third part is a bit more of a challenge, because most clients do not like to be hassled--especially when they get charged for it--but that is an occupational hazard I can live with.

But the rush of a new client still feels exotic for me. In the past week, I have seen five new clients, a personal record. Not enough to retire to the Carribbean, but it does feel good. May your week go as well.

Carter Franke update

This week, I received one credit card offer and a separate letter (enclosing a $20 check) from Carter Franke offering to sign me up for Chase's Payment Protector for a small monthly percentage fee. Thanks, but no thanks.

Also two from Pat W. Johnston, Director of New Accounts for Capital One, and an unsigned letter offering Capital One No Hassle Miles Ultra MasterCard, for which I also blame Pat. People: I do not need any more credit cards.

Current tally of credit card offers since July 11, 2005, when I started counting:

• Pat W. Johnston (Capital One): 3 letters
• Carter Franke (Chase): 2 letters
• MNBA (Other): 1 letter
• Running Total: 6 offers

Howsabout Justice Rove?

I can envision the announcement by President Bush now: "Meet your new Chief Justice of the Supreme Court, Karl Rove. Let the healing begin."

Later in the week, Scott McLelland would explain that (1) President Bush had actually meant "Associate Justice," (2) the White House understood Chief Justice Rehnquist to be "in fine fettle," and (3) he would not be answering any questions about the Senate confirmation process until the foregone conclusion had actually occurred.

Rumors of Chief's death have been exaggerated

Chief Justice Rehnquist says he is not retiring. I grant that he has done a pretty good job for the last 33 years, but why the heck not? Is the Supreme Court's retirement plan that crummy? I would be betraying at least the spirit of my 401(k) if I did not, at some point, stop working and enjoy the fortune I plan to amass.

On the other hand, I expect that my hand-picked successor to the Chief will still be working when they start shoveling dirt into his grave. I do have to respect the commitment. May Chief Justice Rehnquist enjoy good health for the duration.

Rehnquist hospitalized

The lead singer for the Supremes has been hospitalized with a fever and other symptoms. Although I emphasize that I would make a competent replacement for the Chief Justice, as well as Justice O'Connor, I actually would prefer to nominate the Hon. David V. Brewer.

I used to work with the guy, and he has a rare combination of wisdom, intellect, and passion for justice that makes him universally respected by litigants in all procedural postures. He has served as a trial court judge, appellate court judge, and last year was named Chief Judge of the Oregon Court of Appeals.

If I were president, it would all be over but Rehnquist's official announcement of retirement.

Dear Carter Franke

Dear Carter Franke,

You[1] and Chase Card Services[2] are pre-approved to provide all of my credit needs for the rest of my freaking life at a tremendous cost savings to Chase Card Services. Best of all, you can do it using a card customized to suit my needs.

Footnote 1: As Chief Marketing Officer for Chase Card Services, I would be willing to bet that you receive zero of the 200 letters per year that I receive over your signature. On the other hand, I would be willing to bet that your own mother--assuming that she is a good credit risk--is sick and tired of mail from you.

Footnote 2: Do you really need 400 separate credit cards to accommodate the individual differences of your customers? And if so, are they really all a perfect fit for me? Visa Platinum? Travel Rewards? Ultimate Cash? Do you really think that some combination of magic words in the name will win me over?

Here are some of the exciting benefits of the new card you will provide:

• Zero percent APR. Forever. Because we always pay the full balance of every credit card every month.
• Save Now, and Keep Saving. Chase will save hundreds of dollars each year on postage, because it will stop sending junk mail to me.
• Double Your Points. Chase will save another several hundreds of dollars each year on postage, because it will stop sending junk mail to my beloved wife, who is an excellent credit risk as well as a hot deputy district attorney.
• Be Good to Planet Earth. Think of the trees, man. You can honestly save an entire tree over the next 20 years simply by ceasing to send credit card invitations to my house.
• Full Platinum Benefits. Just heap all of the benefits on there. Airline miles, free balance transfers, free insurance of some undecipherable sort on rental cars, rental car discounts. Cash back. Donations to my charity of choice. Discounts at my favorite retailers. You can personally wash my car each time one of us is in the other's vicinity, if you like. We will smile happily while using each benefit, and your participation numbers will shine for other potential cross-promotional partners.

Simply fill out and mail back the certificate below in one of the 400 postage-paid envelopes that your minions have pre-addressed to my home. Or, for even faster service, simply mail me an enormous check, and we can both go away happy. You choose your preferred payment method. All I ask is that you respond before August 29, 2005, and then never send mail to me again.

Sincerely,

Derek
Attorney at Law
Roseburg, Oregon

Clerk to the stars

The ABA Journal reports that Justice O'Connor's sudden retirement will leave her clerks in the lurch, but as lurches go, this one seems like it might be fairly comfortable ...

"Most speculate the O’Connor clerks will be absorbed by the court, either by a new justice or somewhere else. One lucky clerk will likely go with O’Connor, who gets to keep a court-paid clerk while in retirement.

"But no matter which way they go, these clerks are off to brilliant starts to their legal careers. Judicial clerks, especially those who have spent time with Supreme Court justices, are sought-after commodities, with large firms often luring them with $120,000 signing bonuses.

" 'The bragging rights alone are worth $120,000' to these firms, says Joel F. Henning, senior director of Hildebrandt International, which specializes in management and consulting for the legal industry. Henning says O’Connor’s clerks will have their pick of firms."

That's pretty much what happened to me when I left my clerkship at the Oregon Court of Appeals. Ahem. Except for the bonus. And my pick of firms. Past that, it was exactly the same.

Confidential sources

What would you do? Imagine you are a newspaper reporter who landed an enormous scoop with a promise of confidentiality. Then a grand jury subpeonas your testimony and demands that you reveal your source.

Me? I go to prison.

All newspapers have is their credibility, and if they do not mean what they say, they have ... well, pages and pages of JCPenney ads, but nothing worth bragging about.

Now, to be fair, during my newspaper career, I never actually promised confidentiality to a source. That may be because I was writing sports, and nothing was so important that anonymity was required. Also, the newspaper industry continues to take it in the shorts from the web and television, so times are tough in scoopland.

But still, if you speak for newspaper, you need to mean it.

Coincidental follow-up

This woman is suing NASA for screwing up her horoscope by, as I mentioned earlier, crashing a spacecraft into an asteroid. Defenses leap to mind: Failure to state a claim, no intent, no causation, and purely speculative damages--plus Russian courts lack jurisdiction over NASA as a defendant.

Wait a minute ... didn't I see this one on the bar exam?

Cingularity

So about four days ago, the beloved spouse's cell phone began to act strangely. It would ring once or twice, but usually nobody would be there when we answered. When someone was on the other end, they sounded like they were scamming us: "Who is this? I've got your number, you know." Oddly, we were getting the incoming number.

After 48 hours and approximately 30 calls, I called Cingular, which purchased our wireless provider a few months ago. I explained the situation and that my cell phone had captured the incoming number. I asked them to block the number. Cannot do it, Cingular said. (Which I doubt, because it can easily be accomplished on land lines.) I asked them to give me the caller's name, then. I was placed on hold, and Cingular declined, citing federal privacy law.

As I leaf through federal law on occasion, I asked for the citation. After a discussion among themselves while I was on hold, they said they could not provide it. Suddenly, my inner litigator was roused. I persisted.

After another wait on hold, they indicated that it was "case law." I asked for the name of the case. Can't help you, they said. "Wireless companies get sued from time to time." I said I could see why, but that, if that was the reason they were giving, I would need a citation.

I asked for the representative's name and to speak to her supervisor. "Someone will call you back within 24 hours --" No, I said. I have enough problems with unknown folks calling me. I would like to speak to the supervisor now. After another wait on hold, I was assured that someone would call back within five minutes.

The supervisor, Chris, was simply rude. Evidently he had been the guy consulted each time I was on hold, and he was as frustrated as I was by the time he called back. He had no suggestions other than the ever-popular changing of my number. He insisted that he could not provide the caller's phone number, because it was confidential. I clarified that I wanted a name, not a number. Still cannot do it, he said.

I recounted my discussion with his colleague. She said federal law, then changed to case law, then could not provide a citation. I explained that, if you are going to cite law as a reason, you had better be able to cite the law under discussion.

"There are many cases," he said. Not good enough, I told him. It would be one thing if you were relying on company policy, which you would still have to defend, but --

"We would have a defense in the terms of service that you agreed to when you signed up," he said. Really, I said. Why had that not been mentioned first? Or even second? And in any event, I said, I would be delighted to discuss the terms of service, as well as customer service issues, with his supervisor. "Why?" he asked. I had called with a problem, and instead of any workable solution, I was getting an argument.

"But we would have a defense ..." he started. I hung up.

-------------------

The next day I returned one of the mystery calls. This time, the someone answered, and she refused to give me any information, because she was afraid that we were scamming her. "We can see your number on our phone," she said. "Just please quit calling us." And then she hung up.

-------------------

I called Cingular back and waited while the representative read over the previous day's notes. Then I explained the new information. Apparently, the woman with the other number was having the exact same problem we were. And she thought we were harassing her. But now that we had isolated the problem with Cingular, they needed to get on their horses and fix it.

The guy I spoke to said it was a new one to him, but he did see that our phone appeared to transmitting through an unknown tower rather than an AT&T tower, so he would reroute and see if that solved the problem. If not, I should call back with specific information, and they would send me up to the next level of technical assistance: A "trouble ticket" would be filed. I asked that he also call the owner of the other number and explain the issue. While I was on the line, he tried without success, but he promised to try to find a way to communicate with her. At the end, he asked me to rate his customer service on a scale of 1 to 10. (I would have paid for that opportunity with his colleagues a day earlier.)

So far, it appears to have worked. Keep your signals crossed for me.

Coincidence? I think not.

Consider three news stories from the past 48 hours:

1. Japanese man memorizes and recites the value of pi to 83,431 decimal places, then calls it quits.
2. Sandra Day O'Connor, having almost single-handedly decided the close cases among about 1,000 decided by the Supreme Court in her tenure, finishes her 24th year and calls it quits.
3. NASA crashes spacecraft into comet. Intentionally.

The common thread is this: In each case, the operating entity (the pi guy, Justice O'Connor, and NASA) had reached sufficient milestones that he/she/it was ready to screw around for awhile.

If nominated, I would serve

Justice Sandra Day O'Connor resigned from the U.S. Supreme Court a few minutes ago. I have not yet heard from President Bush or his staff, but I am prepared to enter serious discussions regarding my potential nomination to replace her.

Candidly, we have much in common:

• She is from Arizona; I have visited Arizona.
• She is a lawyer; I am a lawyer.
• She is a centrist; I am a centrist.
• She was nominated by President Reagan; I remember President Reagan.

But here is the kicker difference: She is 75 years old; I am 35 years old. If President Bush wants to shape the court into the middle of the century, I am his guy.

Oh, sure. There are weaknesses in my candidacy. I have no direct judicial experience (although I did serve as a clerk to an appellate judge). I have written very few scholarly papers. I have a number of skeletons in my closet. But when it comes down to it, I am a lifelong Republican, and--in the immortal words of the fictional Jack Handy-- "I'm good enough, I'm smart enough, and doggone it, people like me."

I will try to keep my phone line open.