Saturday, September 28, 2013

Lawyering - 29th year

From time to time I write about law here, but not that often. Rarely is it about my own career. But, I did write Ten Things You Didn't Know About Lawyers (and may not want to) almost four years ago on 10/26/09, which did cover a few things that have happened to me.  Even though the chances of anyone (a) having read it, and (b) actually remembering it, are small on the quantum particle scale, I will try not to repeat myself too much.

As of  September 12, 2013 I was admitted to practice law in the State of New York for 29 years. It's not a round number, but so what. I know how long it has been because when I was admitted to practice in 1984 the judge who swore us in told us to remember that date as if it was our birthday. So, I did.  I also remember when I was a newly admitted lawyer having an adversary in a case who had been practicing 30 years. I was shocked how old he was and that he still could be practicing. I don't think I will be feeling that way in one year. I also remember how old I thought my two bosses were. But I am now about three or four years older than they were when I met them.  Holy smokes.

Twenty nine years is a fairly long time. I could probably write dozens of autobiographical pages of my experiences.  Fear not.  I think I will celebrate this anniversary by writing merely about my first jury trial and leave it at that (if you don't include the diversions - you know I can't help myself).

Somewhere about ten to thirteen years ago my older brother, not figuring to live so long for a number of reasons (and he was right) wrote his own quirky last will and testament. He ended it pretty much (could be exactly) like this: "On the whole, life wasn't so good. But, it wasn't so bad either. May the force be with you."  I can't say I feel that way about life but I thought it was pretty good writing, so I am going to steal it with his posthumous permission (checking . . . hold on . . . he says "okay" but to give him credit). So, on the whole, being a lawyer wasn't so great. But it wasn't so bad either.  May the force be with you.

There's not too much I have to complain about. I earned a living and met a lot of great people some of whom were even technically adversaries. I worked with people who have become lifetime friends.  At some point I realized almost everyone in my life I knew other than a few high school friends was because I was a lawyer. I also learned a lot and learned to work really hard for the first time in my life, to the degree that I could disregard almost everything else while focusing on a trial (even eating - the only thing other than heartbreak that ever made me forget about food). The theory of law is wonderful, creative and can be fun. When law works as it is supposed to, it is a marvelous, even a beautiful thing.  A successful cross-examination after which the jury or judge just can no longer believe a witness, or winning a difficult motion or appeal is exhilarating.  Helping a client you like, particularly a friend, is about the best part of it. I've been luckier than unlucky, more successful for my clients than unsuccessful and that feels good. On the other hand, there is a lot on the down side. Losing always feels bad.  Most lawyers I know are overstressed, fed up with judges who don't follow the law, clients who are their own worst enemies, other grumpy lawyers, exhaustion and pressure, too low pay for too much work. And for those in the corporate world . . . arrrrgggghhhhh!!!  The frustration is unending and exhausting.

I read a poll taken years ago of lawyers in California. I can't remember the exact statistics, but it was something like 4/5 were unhappy with their career and 3/4 would not recommend the field to their child. That is not much of an advertisement.  Trust me it has gotten worse. 

My first job was great though sometimes more than a little crazy. My two bosses  were partners and had been so for a long time. But other than that they had gone to school together they were as different as Oscar and Felix. So, let's call them that. Oscar was the great trial lawyer gunslinger (still is) who more than once was front page news, and Felix, now a retired judge, the more serious worker bee who kept the place operating. I learned different things from both of them about trying a case, but foremost among them from Felix that if you do not have an outgoing personality, you need to convince a jury that you are sincere.  The best way to do that is to actually be sincere. From Oscar I learned that it was okay to emote in front of a jury (even cry) so long as it was genuine.

I have not actually cried in front of a jury. I did get emotional summing up once representing a burn victim, and that worked out pretty well, and on another case I got teary in my own home rehearsing my opening in a mirror on a death case precisely because I did not want to do it in front of the jury later that day. My co-counsel was a nice man, but a stone cold former homicide a.d.a. and I sure knew he wasn't going to cry (it settled anyway at the last moment).  The closest I came to publicly letting flow was a case I was trying with an associate helping or "second seating me."  I had the injured plaintiff's wife on the stand.  She was describing how they got together as teenagers and how he had changed as a man after being burned. It was pretty emotional. I saw the court officer walk away, eyes brimming. I saw the judge turn his chair around so he could not be seen blubbering. I was doing everything I could not to let my voice break when from my associate's chair a great sound burst forth.  "GULP!"  Later it was funny. But right then, he almost got me.

The third thing I had to find out for myself - it takes a while to learn to be yourself in front of a jury. At first you are imitating other lawyers, perhaps even those you have seen in film. Well, maybe there are some people who get it immediately, but I haven't personally seen any young lawyers accomplish that. And it certainly wasn't the case with me.

My first jury trial was tough to get through. It was a case my bosses took simply because the same clients had another better case. It was a dental malpractice action and I was handicapped in several ways. First, back in the 80s, before they revamped the system, you could delay bringing a case to trial, if not forever, for a long time. But, even then, there were limits. This case was 17 years old. The judge who ordered me to trial was not concerned that I was in grade school when the incident happened.  I distinctly remember him saying "The sins of the fathers are visited on the children," referring to my bosses.  It was not a big case that one of them was going to try. For one thing, though the dentist had been a jerk to my client and caused her a little pain, he really did not permanently damage her teeth.  In fact, some 17 years later, she had one of the nicest set of choppers I've ever seen. Good for her, but not what you want to show a jury at all in this type of case. Second, my bosses were not very fond of the clients and vice versa. They seemed nice to me, and frankly, they were kind of justified in being a little testy by the 17 year delay. Nevertheless, at the time I was seeing things from my bosses' perspective. 

Oh, one more thing.  I really didn't know what I was doing.  I knew I could cross-examine someone, because I had done it in bench trials (no jury, just a judge).  In my first bench trial ever I was representing a divorced mother whose dirt bag ex-husband had a successful business he could hide through his brother and was paying her almost nothing in support, pretending to be poverty stricken. My adversary was the leading divorce attorney in that county at the time.  I called his client to the stand. He claimed to make a few hundred dollars a month. I asked him how he managed to eat on that pittance and he said he always ate at a friend's or relative's house for free. So, we went through his week - Sunday, Monday, Tuesday, Wednesday, Thursday, Friday and Saturday. On each day he described to me with perfect recall whose house he had eaten at. When he was done, I said, okay, let's do it again. And, of course, having made the whole thing up, he could only stutter - "Whatever I said a few minutes ago." The judge was looking at him darkly and then I asked the next question which I had in my pocket - who owned the corvette he had driven up to court in? The judge called both counsel into chambers and made the other side settle immediately. But, I have digressed in a war story, which is unfortunately, a very contagious disease in my profession. Back to my first jury trial.

I prepared for the case for days. Oscar told me not to worry when crossing a medical witness because though they may have more medical knowledge, I knew my own field better.  He was right. Doctors and dentists have been some of the worst witnesses I've seen and crossing them count among my favorite memories as an attorney. 

We had our own expert witness, a dentist, and a very nice man. I went to his house that weekend to prepare him. Despite what was ridiculous treatment by the defendant dentist of my client, our expert couldn't seem to agree that he could find any deviation from good and accepted dental practice (the magic words the judge needed to hear not to dismiss the case). Though I found that astonishing, I had to go step by step through the evidence and ask him for each act if he would have done what this dentist did? He said no each time. Finally, he agreed, it wasn't good and accepted dental practice. Phew. Without that I had no case.  It was far from the last time I had to explain an expert's theory to him. I could write a lot about expert witnesses here, but perhaps another day. On the morning of the trial, while I was preparing in the office at 3 a.m., one of the partners, Oscar, came into the office. He worked very little, but made his money in big lumps when he tried a case. When he was working, he often started before dawn, when he was most awake.

He asked me when I had gotten there that morning and I said I had never gone home. He asked me if I was nervous and I said no, I was too busy trying to figure out what to do. He told me go home, get some sleep and to get nervous or I'd be no good to anyone. Being nervous is a good thing on trial so long as you keep it in check.  It is motivating and keeps you in that zone you need to be in to come up with arguments and retorts you might not have thought of if you were completely relaxed or unworried.  Oscar had himself had told me a few stories of his early years of practice which helped me understand that being nervous came with the territory. As well known as he was in his field then, he had told me that when he had his first trial he pulled over on the side of the road on the way home the first day and puked. The first time he had a medical malpractice deposition (where you get to examine the other side under oath) he was so worried he repeatedly canceled it.

And, I was a little nervous going in. But, truth be told, despite my lack of experience, it wasn't all that much either. Not that I don't get nervous on trial, but I have known since school days that at least relative to other people, I am fairly calm. That may be part natural disposition and it may be self training I did back in high school when I first contemplated how you could react to things without freaking out. I was very influenced by eastern philosophers (I'll include the ancient Greek stoics) even then.  I do believe there are limits to their claims and that like most every philosophy, you should take what works for you and chuck out the rest.  But I think it is pretty clear that training and focus can help us to relax in tough situations.  I've failed at it a few times in my life, but I'll leave those for another day too.

What was true then is still true for me when trying a case. The moments I feel a little nervous are when I stand up to meet the jury in what is called voir dire, or jury selection, when I stand up to do my opening and when the verdict is coming in. To be fair to myself, I think it is pretty normal for attorneys to be most anxious at those times, as we are when we are beginning just about anything.

I had not the first clue how to pick a jury.  Oscar taught me how, one of the few times he ever intentionally taught me anything legal related (he did give me one piece of child raising advice I took to heart and have passed on to others - when it comes to music, sports or education, there are no limits, within reason of course, to spend on your child). But, like with Gibbs on NCIS  (I admit to a non-fatal addiction to the show), you learned by watching him.  He was not the attorney to go to for technical legal information or even simple things like closing a real estate deal. The intentional bread and butter legal training I got from Felix, who was very organized and deliberate and more of a friend. He was delighted he had a young attorney who would work endlessly (hard to believe, but I would then) and could write well.  I know this because his wife told me.  I rarely see him anymore - once every few years, but at the time we were very close. He was a very cranky guy when I met him, as his partner was involved in a major case of national proportions and not bringing in money in the meantime. Between my taking some load off him and the big case ending soon after I arrived, he got to be a lot more fun.  Oscar was almost always entertaining, but also dangerous, and he could be both a little arrogant - maybe deservedly so - and frustrating, because he was very absent minded - worse than me - and that's very absent minded.  He once told me there wasn't any place in the firm for two absent minded attorneys and he was there first. I told him the difference between us was that when I lost or forgot something I knew it when it came up, but with him, it was as if it never existed.

I had actually worked there as a law school clerk on their big case before I was admitted and a paralegal who had a crush on me (I know, that's hard to believe now, you bastards, but go with it) and a senior attorney who liked me well enough told me that Oscar was offering me a job and to come in and start working.  I was surprised because he didn't know me very well, but I did.  My first memory is the paralegal handed me a file and saying "work it up." When she left the room I squeezed it a few times as a joke to myself, because I had no idea what "work it up" meant. I drafted some papers and when I left almost 4 years later, they had not even been typed up yet. Yeah, it was a little crazy.  At the end of the first week I asked Oscar if I could speak to him privately. He said, "Sure." I said, I understood he was offering me a job.  He looked at me kind of funny and said - "I did?" He hadn't, but being him, hadn't even been curious why I had been around all week.  It wasn't a large office and he had to notice. But the paralegal and attorney knew what they were doing. He added, "Okay, welcome to the family." He then gave me a salary that would depress an assistant grocery bagger. But I was elated.

As talented as he was, he had some personal problems back then, and caused a lot of trouble for himself and others. At heart, he is a good person and despite that he was kind of up on a pedestal compared to the rest of us I recall once when I stood up for myself after he made the mistake of blaming me for what was really his fault, he sincerely and unfortunately endlessly apologized for a day.  Whatever his faults, he was also incredibly charming and a brilliant trial attorney with a natural charisma unlike I've seen with any other attorney. When you watched him, you learned by osmosis, though you really could not imitate him (some try) without looking foolish because you didn't have his personality.  Once I recall him getting angry with me because I didn't say something to a jury he wanted me to (too long ago; no idea what). It would have been a disaster if I had. I wasn't him and would have looked like a little boy putting on his father's clothes.

It took me a while to learn how to get along with jurors, to ask them personal questions without pissing them off, and even to get them to like anything about me. This is where learning to be yourself comes in handy.  After a few years I started to get creative with it and have fun. Most attorneys follow some well tested scripts we all learn. I pretty much do too and try and to get the panel to laugh a little. But, I've developed some lines of questioning that are my own and I think are pretty good because other attorneys who have opposed to me in selection have asked me if I minded if they used them.  Why would I say no? They would just do it anyway.  You don't get to copyright this kind of stuff and we all borrow or steal from one another.  Nowadays, though I don't try many cases, I notice my grey hair and craggy face gets me a little more respect with jurors.  I'm hardly an old man, but there is something to getting older that works (occasionally, anyway). Good thing because almost everything else about aging is not so much fun and most judges could care less.

In my opinion attorneys have too many rules about what jurors they will accept or challenge. There are even unofficial racial and ethnic rules, believe it or not, and many attorneys still go by them. Most are  ridiculous although I've had a couple of trials where I think race played some role.  On one of my next trials I called Oscar up during a break in the selection process and asked him what he thought about my taking on the jury the wife of an insurance adjuster. He said don't worry about the stupid rules. If you like her and more importantly, think she likes you, take her. I've followed that ever since.

 In this first case, my memory about jury selection is very thin. I know I wasn't any good at it. My adversary was a very serious middle aged man who had a reputation for being gruff. I remember his name but will call him Bob. Actually, he was really nice to me,  and I told him after the trial I thought he had gone easy on me and appreciated it. When we had selected six jurors and two alternates I felt that I had lost the jury selection aspect of the case - which might be the most important factor. There was one man in particular I felt really didn't like me - I'll call him Roy. Why had I left Roy on the jury? Mistake.

When we began the trial I didn't know where to sit and Bob had to tell me. I had my clients, husband and wife, sit next to me at the table, which you really don't do either, but I didn't know better.  The judge was a fairly kind man, perhaps in his late 50s, early 60s at the time. Many years later I bumped into him and reminded him of the trial. He was elderly then, a semi-retired referee, and had no memory of it, of course. I remember it because it was my first. It was one of many for him. He appeared to know my adversary well at the time, but he was fair and I have no complaints.

The first real opening I ever heard in my life was the one I gave. That's not a good idea, let me tell you. I know I was bad, perhaps terrible. When it was over Bob asked the judge if he could make a motion outside of the presence of the jury. When they left the room he said that although it was highly unusual, he was making a motion to dismiss the case after the opening. There just wasn't sufficient reason to go forward. I was mortified. Was I that bad? I don't think I said anything in opposition. The judge mulled it over and then said, "It was inexpert. . . " Now, remember, my clients were sitting right next to me. All I could keep repeating to myself after the first few words were, "Please don't know what 'inexpert' means. Please don't know what 'inexpert' means."   Then he finished his sentence with ". . . but I think there is enough to go forward." There are no atheists on trial. Thank God, I thought.

Oscar had told me to call the defendant dentist as my first witness. I did. Fortunately, though obviously smart enough to become a dentist, he was socially inept and a strange, pompous man.  Honestly, and I know this is politically incorrect to say, but he came off almost "retarded." However badly I must have looked to the jury, I was pretty sure he did worse.  My own expert did pretty well, and at least said the magic words that the judge needed to hear so I could go forward with the case. The last witness was the defendant's expert, another dentist in the area with a lot of experience on his resume. He was not contentious at all (some foolishly are, trying to play lawyer). When I crossed him, I asked him the key question about something the defendant had done during treatment - "Was that good and accepted dental practice?" Of course he was going to say "yes, it was," because experts almost always help the side that is paying them.  But he said "No," which flabbergasted me.  Thankfully,  I had at least enough sense to move on, pretty sure that the judge and the other attorney weren't even listening. Later I told Oscar what had happened and he instructed me to order the minutes from the reporter to use the next day so I could read it to the jury. If I read it, everyone would know it was true, rather than if I just told them it. I had not known that.

Bob summed up, telling the jury that this case should have been in small claims court. He was probably right. The dentist had treated her badly and screwed up on her dentures and maybe caused her a tiny bit of pain. But, this was a malpractice case in the New York Supreme Court.  It wasn't, he said, worth anything.  Essentially he was saying that I had wasted everyone's time with this case that was 17 years old.  I knew the judge, nice as he had been to me, agreed.

I got up to give my closing with no small amount of dread.  I had that one page of transcript with me, which I knew would at least keep the judge from dismissing the case, something he was more likely to do after the testimony was in than at the beginning.  Unlike with the opening I had actually seen a few other summations before, but there did not seem like there was anything here to get a jury whipped up about.  And, I generally knew I had to remind the jury what they had heard and persuade them to give me a verdict after the judge instructed them on the law.  Don, whose comments sometimes now grace this blog, had just started with the firm and was in the courtroom. He later told me I was so befuddled I reminded him of the television character Columbo - NOT WHAT YOU WANT TO HEAR AFTER YOUR FIRST TRIAL!  But, I'm sure he was right. I couldn't find any of the documents admitted into evidence that were laid out behind me on the table to show to the jury without rifling through them like a Woody Allen character on a first date and for some reason I kept slapping my forehead, as in "Oh, I almost forgot." (I guess that may have brought on the Columbo reference.) I'm not exaggerating this.  I was really bad.

Roy, the juror who didn't like me, had frowned the whole trial and was sitting in the front row right in front of where I was standing to sum up. Almost every juror I have ever had stares blankly during the case to show their dedication to impartiality. But Roy was glaring at me like I had showed up to his wedding in lederhosen with a pinwheel hat on my head and carrying a hog under my arm.  I finally read to the jury what the defendant's own expert had said.  I could tell with a glance that Bob and the judge were surprised. They really hadn't been paying attention when it happened. I started to finish up, to tell the jury the the terrible ordeal my client had suffered (it was really nothing). Would any of it matter?  It really was a silly case.

And then something amazing happened that taught me forever that you really just never know with who you pick for the jury.  Roy stopped glaring at me for a second and a tear formed in his eye and trickled down his face. What?  I kept going, haphazardly I'm sure, and finished with a humiliating statement that must have been plenty obvious to the jury, and which Oscar had instructed me to say, because you can only get away with it once - I said it was my first jury trial.

After the judge did his thing the jury went out. My clients, who had done okay on the stand, and were also not oblivious to my lack of legal sophistication, came up to me and said to me in a very heartfelt way that whatever happened, they thought I did a fantastic job and given it my all. I really appreciated it. Bad as I was, I had done exactly that - given it whatever I could.  

The judge and Bob were talking, literally wondering out loud why it was taking the jury so long to come back with the defense verdict. Well, they had been nice, but I guess I couldn't ask them to make believe for my clients' sake. It was almost certainly going to be a defense verdict and we all knew it. Even if I had some facts and testimony on my side, what had happened was so de minimis, I was almost worried the jury would give the dentist money for wasting his time (not that was an option for them).

You sit there and you go over what you did and what went wrong and what could have been better. Did I come across sincere? I hoped so, but you don't really know what other people are thinking anymore than I knew what Roy was thinking.

Finally, the jury came back. It seems like it takes forever for the foreperson to give the judge the note, for the judge and the clerk to read it, and then to give it back to the foreperson so the clerk can ask him to answer the questions. In order to break the tension I always pre-mark on my verdict sheet the answers which mean I lost so if it happens, it's as if I already knew it. I'm not saying that is all that rational but it does seem to work a little.  Now, the clerk asked the foreman if the defendant had committed malpractice and the foreman said "Yes." He asked him if it was the proximate cause of my client's injuries (laughable) and he said again "Yes."  I was elated but dumbstruck at the same time. I had won. 

The clerk asked for the amount of damages and the foreman said "Five thousand dollars." I was green, but I wasn't an idiot. I knew that had to be one of the smallest verdicts the court had ever seen since I had been practicing anyway.  But, it was probably $4000 or so more than my client should have gotten in the real world. At least it paid our expenses and left a little over.

So, all's well that ends well, right. I went back to my office. We were all so sure I was going to lose that the head secretary, who was about 20 years older than me, had jokingly said that if I won I could fondle her heaving breasts.  I called her into my office when I came in and after doing the requisite sad face, told her the bad news for her. I didn't really touch her but made believe for a second or two that I intended to collect, just for the laugh. Then I told the office and they were appropriately gleeful.  

It wasn't much of a victory but a win is a win. I did lose my very next case I tried though I was much better that time and had even gotten a compliment from the judge after it was over.  I had been feeling sure I was going to win, so he also told me that I was the only one in the courtroom who didn't realize what a liar my client was. Okay, you do talk yourself into believing in your client because, within reason, it's your job and also human nature.  

But that would be a month or so later. As for now I was 26 and had just won my first jury trial. I have known some attorneys who lost their first case and have trouble trying another; sometimes they never do but have successful careers anyway. I didn't have to go through that challenge and I'm grateful.   

Oh, they'll be more of this autobiographical stuff next year when it is 30 years. 30 years. Yikes!

Sunday, September 22, 2013


Maybe I spend too much time commenting on articles I read in the media, but I enjoy it or I wouldn't do it. Sometimes I spend an hour or more early in the morning doing it when I am awake, but not quite conscious enough to do anything more responsible.  I normally don't save my comments anywhere but decided to do so for about a month. Not surprisingly, I read the articles that interest me, so they tend to fall into a few categories like politics, civil rights, history, science, sometimes sports, and, yeah, the occasional celebrity article. Even Einstein, if alive today, would be looking at articles that are captioned The Seven Sexiest TV Actresses. This post is merely reprinting some of my comments here. It even seems kind of self-indulgent to me. On the other hand, the main point of this blog is to get to talk about things that interest me and this is just one more excuse to do exactly that. Of course, though comments are often badly written and filled with redundancies, bad grammar and mistakes, at least I fixed my typos here so I look like less of an idiot than inspection of the originals might reveal. This post is a little long, but the topics, which at least I think interesting, keeps changing and the last one is my favorite. My narrative is in bold and the comments themselves in italics.

Last month a writer on a NY Times column dedicated to philosophy wrote an article about the scary dangers of seemingly benign neuro-technologies. I found his concern trivial, because we all know this. I wrote:

In another words, the road to hell is paved with good intentions. We know. Could you not make the same argument with anything? Fire? The wheel? Behavior modification techniques? Nuclear energy? Space exploration? Building a home on the edge of the water? We are not going to stop developing new technologies and have the capacity in society to make life better or worse with them. The fears never stop us. Sometimes they make us cautious. Sometimes too cautious. We know, we know.

Imagine the ability to actually decide what your dreams will be and to remember them when you wake up. Or not to remember them but be changed by the experience as if it happened in real life. It is science fiction now, but hardly seems out of the realm of possibility. It might be made into some wonderful applications, perhaps even allow people to have pseudo-cathartic experiences or learn how to deal with their fears and change their lives. It is also easy to imagine many people never wanting to wake up because life is so much better in their heads than in reality or politicians being blackmailed or pummeled by the media because a download of their dreams is obtained. Doctors might be part of either scenario and it is not hard to think of nightmarish results from evil-doers or do-gooders. We are going to do it anyway.

Incidentally, my comment above about our dreams changing us concerned an actual recent experiment on rats in which scientists electrically stimulated rat brains to mimic those of other rats who had gone through certain experiences. By doing this, they were trying to actually insert phony memories into new rats. And it worked! The new rats reacted as if they had the previous experiences themselves. Extrapolate and think about the possibilities for good and evil with that technology.

I comment a lot on technology matters but I'll skip to an article by a philosopher contemplating whether the Greek God Zeus existed. I commented:

He either is trying to be ironic or just feels this is safer than directly making these points about belief in God in our culture.

In any event I do not accept his equalizing of opposing positions in his no. "2."  Not "believing" in something of which we have no evidence is not equivalent to not "disbelieving" it. If someone cannot tell the difference between the two there is probably no reasoning with them. That's just common sense.

Of course, as pointed out in Miracle on 34th Street, faith is believing in things when common sense tells you not to. We should also remember that in that movie the faith Susan was asked to swallow was believing that a little old man was really Santa Claus. I have never suggested that anyone who believes in God as a matter of faith or claims revelation should not do so. That's their choice. But it is not credible proof and those who are reasoning about it should not surrender to it in order to seem open-minded or the like.

Though unnecessary there also happens to be some evidence against belief in Zeus, even if circumstantial. Comparing religions show us that myths are passed from one civilization to another over time and space and adopted as the new culture's own as if it was about their own god or gods. We know this is true of Zeus (Robin Lane Fox's Traveling Heroes is a good place to start). And there are many myths about him, sometimes contradictory. These at least lessen the likelihood that he is based on reality.  

One article included a shot of Jamie Lee Curtis in a bikini and started off with the author stating that she has never looked better at age 54. I wrote:

She's never looked better? Stop. The writer misses Jamie Lee's point entirely. She has looked better - a lot better. But so what. This happens to us all as we age (Raquel Welch aside). Fact of life. She wanted to stop pretending and keep acting at the same time. Good for her. We can't be sure her husband feels the same, as he may have wanted things to remain closer to the same. People won't like to hear that, as it can be painful for them to accept, but it is also a fact of life.

I'm very polite for a commenter, but I still often make other readers very angry. But, at least one person appreciated that comment and wrote:  Ah, a voice of reason. Thanks for your post, David. Being a mere human, I admit I was gratified. It may be silly, but it's hard not to be. But, I also enjoy it when someone battles or insults me, as you will see below. Insults are far more common than praise in my digital world. 

In response to a philosopher who has gotten a lot of reaction by stating in the NY Times his belief that scientists can now come up with a sort of mind/body theory of everything with regard to evolution, I was fairly skeptical. This is a topic I read and think about a lot. I am not sure how much sense the following comment will make to you who haven't read the article I'm commenting on, but it concerns some of my thoughts on the limits of science and knowledge:

When I first learned to count I thought no one had ever reached "infinity" because they had not tried hard enough. I thought I succeeded when I reached 1000 because I didn't know any higher numbers. Prof. Nagel may be falling into the same type of trap, if in a far more sophisticated way, by taking "the limits of his own field of vision for the limits of the world.” (Schopenhauer). Not much after my counting to infinity, my mother taught me that Socrates was the wisest man, because he knew that he knew nothing. That was better.

I admire thinkers who take a shot at more but who can surrender to some form of "I don't know." Erwin Schrödinger tries in his Mind and Matter, concluding that the mind could not cope with the gigantic task of objectifying the outside world "otherwise than by the simplifying device of excluding itself - withdrawing from its conceptual creation. Hence the latter does not contain its creator." He admiringly quotes Charles Sherrington: "Mind . . . is not a 'thing'. It remains without sensual confirmation and remains without it forever."  As they both knew, others arrived at this conclusion long before them. 

And I admire those who have shown that "we" progress by passing on what "works" well enough for now, by building up, often accidentally, bit by bit, and not by planning or understanding it all in some hopefully comprehensive, but ultimately wrong way, as if we could count to infinity or understand mind/matter if only we tried hard enough.  

Sometimes articles generate personal memories like the one above where I tried to count to infinity. In response to an article by an author (who I never heard of) about how he likes to put the names of people he knows in his books, I could add my own experience from the other end of that equation:

Some years back a friend of mine wrote, among other things, novels in very popular series. I knew him because he was the brother-in-law of a friend of mine and my client. I understood why he used his brother-in-law's name in a book, but for some reason he also used his brother-in-law's friends' names, including my own. Probably there was no particular reason he did it. I don't know about the others, but he asked my permission. One of them was even a recurring character, which given the popularity of the series, was pretty cool. My own character wasn't recurring or particularly appealing. I don't know why I was even glad he wasn't killed off, because other than the name, of course it wasn't me. I do remember teasing my own brother about it, because he was a huge fan of the series and read all of the books. Gave me fictional bragging rights. Not that it made any real difference in my life, but it was fun for me and I guess it must have been fun for the author too or he wouldn't have done it. I still have the book and once in a blue moon will show one of the two pages my name is on to someone. If that's my 15 minutes, so be it.

I am happy to see that there is a new contestant in the cable "news" department as I am really disappointed with that whole field. In response to Al Jazeera America Promises a More Sober Look at the News - I wrote:

One more choice. Good. I have long stopped watching Fox, MSNBC and CNN for various reasons, but mostly their bias. Here's what I would like AJ to think about:

1. There is no reason to have the same few commentators night after night. Nothing wrong with having well known hosts, but why can't there be several, a different one every few, or even every night? If I want to watch tv at 8 and it is always someone I don't like - that's it. Mix it up.

2. I hate it when commentators on a network won't talk about their internal issues which are at least as much news as celebrity scandals. The most interesting thing that ever happened on MSNBC was when Joe Scarborough was at war with Olbermann and for a little while, by extension, Maddow. But no one would say what was going on behind the scenes. I can't watch much MSNBC now but I would have watched a discussion about the behind the scenes wars. As it is, I will have to wait until Scarborough retires someday.

3. Don't worry about getting name people as guests. If they are interesting, fine, but some of them are just known for being known. Put on people who know their field. C-Span does and that is much more interesting to me.

4. Have not only a liberal and a conservative in discussions, but also a moderate. There are lots of them but no network seems to think they make good tv. I do. I would prefer it.

5. It should not be Good Morning America. Even on morning shows, stop with the banter.

The following was a comment to another celebrity article about the actor, Mandy Patinkin. which I thought gave insufficient praise to one of his characters:  

His Inigo Montoya is one of the officially unrecognized great performances in movies much like Val Kilmer's Doc Holliday in Tombstone. Average filmgoers know this, but the "experts" do not seem to. One reason I usually read filmgoer reviews and not film critic reviews before choosing a movie.

The following was my comment to an article about how mad people get when others forget innocently forget to give wedding gifts:

I don't buy that people forget to give wedding gifts. They may be financial, they may be personal, but there is generally a reason. Anything is possible, but realistically how could someone forget with everyone else talking about it and handing their cards to the couple? It's the same reason we may forget to turn off the stove but don't forget to close our driver's side door - the door is right in front of us (presuming in both cases sobriety). I am one of the most absent-minded people I know, but I would not forget to give a gift at a wedding. I've both forgotten to bring my checkbook and buy a card and had to go back for them or give the gift afterwards - but I was acutely aware and embarrassed. What the article is right about is that people do get angry if someone does not give a gift. These aren't so much "gifts" as social obligations and, right or wrong, people expect it.
I've written here in past months about People v. Zimmerman, which I probably could write about full time for a year. I read an article by an angry professor who seems to think that Mr. Martin was a heroic child. My response summarizes my puzzlement and distain for those who vilify Mr. Z, whose life seems to me to have been destroyed by the acts of a young thug, a reprehensible media and craven politicians:

I disagree with most of his article. I have been subject to prejudice based on ethnicity, skin color, age and beliefs in my life. I expect most people have. But I also recognize they were rare events and not typical of my life or Americans in general. It is not the 60s anymore. His perspective on Martin-Zimmerman persuades me that he does not think about justice or care what the witnesses say happened, but only the skin color of the two. That's racial prejudice. I thought as he did when it happened by foolishly listening to the media, though I should know better. But as the facts came out and I had the opportunity to watch the trial, I learned the truth was closer to the opposite of what was initially portrayed. Professor Yancy's article does not seem to follow the legacy of MLK, Jr. or Nelson Mandela, who I and most whites I know think of as a heroic. It sounds more like Jessie Jackson and Al Sharpton, who I think poor excuses for leaders because they encourage feelings of victimization and entitlement and teach that we should judge people by their skin color and not the quality of their character. We all know there is still and probably always be prejudice and bias in the world. I am not so foolish as to think I alone have escaped it either. We all have some. But racial prejudice has become rarer and rarer in my lifetime and sadly encouraged by those like the professor who seem to want to hold on to it.  

My comment drew an angry retort from someone who obviously disagreed and decided I was a racist:

"It sounds more like Jessie Jackson and Al Sharpton, who I think poor excuses for leaders..."

Blissfully unaware of your own latent prejudices. What makes them "leaders"? Because they are black with a pulpit from which to speak? Who are your leaders... or is that just reserved for the mythical black people among whom you live?

I am pretty sure I responded to him, but can't find it. Oh, well.  Below is my comment to an article where a writer dared say that the recently dead poet, Seamus Heaney, wasn't all that good.

I tried to read him once and could not find anything that interested me. Sometimes people become famous because they have little competition or other reasons unrelated to merit. Of course it is subjective, but people are influenced when they learn someone is famous and that may be the reason too. I can't think of a living poet who I consider great these days, but I do not read poetry in general and of course others may disagree. For me there have been very few great poets period.  

I see someone below was offended this article came out so close to his death, but, I doubt his family or friends is going to read it or be affected. I would presume they are used to criticism and don't really care.  It's not like it was said at his funeral.

Apparently my admission that I generally don't read poetry, that my opinion was subjective was insufficient to this gentleman who took me to task:

And this is what is wrong with the blogosphere - the idea that everyone has the right to an opinion. People have the right to an informed opinion.

By your own admission you don't like poetry and are not familiar with his work, but somehow you can arrive at the conclusion his work has little merit, that the foolish masses read Heaney because he is famous and  has no competition.


Why do I enjoy it when a commenter calls me an idiot? I don't know but I think it is because I can't believe how impolite the anonymity of the internet makes some people. I wrote back with a little fire and sarcasm than usual, but even still I always end up feeling sorry for "trolls" and try to make peace.

"And this is what is wrong with the blogosphere - the idea that everyone has the right to an opinion."

That's pretty funny. At least, my good doctor, I hope you were trying to be funny.  

What's great about the blogosphere - in my humble opinion - is that it allows everyone a forum for their opinion. I'm sure you recognize that you are writing on a forum for people's opinions. Sure, I suppose some people use it because protected by anonymity they can scold others who do not recognize their self-perceived genius and correctness in all things, but I don't want to jump to the conclusion that this would describe you just because you make a joke.

Maybe what's great about it, is that it allows even those people to comment who don't read carefully. Of course, I do not mean you, but, just in case you missed it - I did not write I do not like poetry. I wrote I did not read it in general. Whether that is still more than someone else, I cannot say, nor do I care. Even experts can be wrong - they are all the time.  By the way, the reason I don't read it in general is because I find it's sort of like karaoke. Many try, but few succeed. I admire and sometimes cherish those I think are good at it, whether it is Shakespeare or Ogden Nash. 

Here's a suggestion, doctor. Admit your biases and perspective when you write - we all have them. Then you won't have to worry so much about others agreeing with you. You might find it  liberating and that you don't have to have the pressure of being "right."  But, I may have said too much. Perhaps your opinion is metaphysically correct and I am communicating with a deity or one of the six truly intelligent people in the world without the deference that deserves. If so, I apologize.

In case you don't get the hint, have a nice day and try not to let the fact that we all have opinions bother you so much. This can be a happy place.

That went back and forth and ended up with him pointed out what I admit could have fairly seemed like a contradiction in my statements. Unfortunately, these are comments and you can't put everything you think down or your whole autobiography.

Here's a comment I wrote to an article about the bloody Missouri-Kansas conflict before and during The Civil War that let me talk about one of my favorite subjects:

I'd like to say something about Clint Eastwood's The Outlaw Josey Wales, a fictional account of a guerilla fighter who rode with "Bloody Bill" Anderson and refused to surrender after the war. Don't look for too much historical accuracy - it's a movie meant to entertain. Nevertheless, it is remarkable, especially the writing and acting. Though not as well known or celebrated as many other Eastwood films, I have found that many men, at least in my age group (I graduated high school in '76, the year it came out) agree it is our favorite among many great ones. It does depict some of the horror of that time (which we see here in the comments still raises passions) and is meant, as his films often do, to make you question your loyalty to those you have been trained to see as the "good guys." But it is very inspirational. I was not surprised to learn that it is one of the very few films in the western genre selected by the Library of Congress National Film Registry for preservation. There were some great movies that year - Rocky (best film at the Oscars), Taxi Driver, Network and All the President's Men. But Josey Wales is the one I am still watching.

Here's me trying to be helpful when a prayerful woman was insulted for bringing God into a discussion on Syria. She wrote:

I guess this is all in God's hands. His will be done... Peace and Joy as we Franciscans say, but I guess the people in the middle east are not having much of either at this time.

To which someone replied: Trolling idiot

She was perplexed: what is "Trolling Idiot"?

At that point I stepped in as a veritable doctor of the internet, which is kind of funny, because I am so digitally challenged, it's not funny:
I'm not sure if that is a serious question or if you are making fun of his turning troll into an adjective (maybe some people would say a participle - I really don't want to argue about it). But, if you are serious, by "troll," Mr. Dowdy is referring to a type of commenter on a website who makes nasty comments and which is itself a reference to the Nordic troll, a mythological monster such as used in Tolkien books or comically featured in the movie Shrek. Unfortunately, very often it is just used by those who disagree with someone's else's own viewpoint and therefore read the nastiness into it. If you were just being facetious, and know what he meant, then please don't be a troll and make fun of my gullibility.

Apparently, she was serious and thanked me for helping her. My mitzvah for the day. I can't help but mention Tolkien a lot in comments, even where it is a stretch, you know, like the way some people can't help but bring up their love interest in a conversation no matter how remote. The following was to an article on Syria prior to the recent Russian intervention.

This from a famous Catholic writer:

‘I wish it need not have happened in my time,' said Frodo.

‘So do I,’ said Gandalf, ‘and so do all who live to see such times. But that is not for them to
decide. All we have to decide is what to do with the time that is given us.’


'...Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. . . .'

And from this much earlier Christian (Luke):

". . . From everyone who has been given much, much will be demanded; and from the one who has been entrusted with much, much more will be asked."

I don't mean to imply there's any practical direction in the above quotes, just that sometimes we have to do what we (here, in reality, our leaders) think is right and hope that it is for the better. I personally do not believe we should intervene at this time despite Pres. Obama's red line although I would not mind financial and moral support to any participants we are reasonably sure are looking for a secular government based on western values - I just don't know that this exists there at all. But, it looks like we will intervene. Whatever we determine, there is no way to know whether it would turn out more to our liking if we take a different direction.

I was thinking someone would reply that I was being too flippant bringing a fictional writer into a discussion about war horrors, but that's not what made someone mad. It was apparently my liking western values which offended a reader who asked me "What evidence do you have that "western" values are superior to the values of another culture," suggested I was being chauvinistic and that "we should have been taking lessons from our Eastern brothers and sisters, who, incidentally, live where Jesus walked and where the Church took its first steps." Poor man gave me an excuse to pontificate on one of my favorite topics:


Thank you for your reply, . . . . I base it on the following political values and aspirations which are more present in the west and less present in the east at this time in history: freedom of conscience, freedom of expression, rule of law, democracy limited by individual rights, private property and the peaceful transfer of power, tolerance for ethnic and religious differences, among others.

I'm not suggesting these developed without input from the east, nor that we do it perfectly or they are completely devoid of worthy values. Many values are shared too. But, as imperfect as our laws and values are, where in the east to you think the people and government aspire to better - China? Iran? Mozambique? Are you not convinced by how many people have wanted to come here as opposed to Russia?

You can argue all you want that someone raised in Syria might be as decent or more decent than someone in America. You can argue all you want we are imperfect and that our people are frequently dishonest or selfish, and that life here is also filled with fraud or corruption. Or that our own history is strewn with unworthy acts and sentiments. I won't argue with you. We have no utopia. It took a long time to get where we are. Centuries. And I'm talking in generalities, it being virtually impossible when discussing politics, philosophy or comparative cultures to do otherwise.

But, who are you comparing us to? Take a look at Pew polls showing how many in Sharia countries think it is okay to stone a woman to death because she is an adulterer (presuming, laughably, a fair trial). Go to D.C. and say anything you like about the president (short of a threat) and you will be fine. Try it in Russia and China. Try it in Syria or Egypt or so many other countries where these values aren't treasured. I'll take ours. Thanks. If I couldn't live in America, then I'd want to live in western Europe, though they have their problems too. If I couldn't live there then Japan or Israel where they have adapted our values too.

I always accept that sometimes in replying commenters talk at cross-purposes. If you meant something different than I suggest in making my reply, please let me know.

He gave up or wandered off, but another commenter, offended apparently by my mentioning Israel and Iran shot back:

If you were Palestinian Arab how do you think you would fare in Israel? Do you have any concept of how many people Israel has in its jails, many held without charge or trial for tens of years.

I would much rather live in Iran than almost anywhere, including the United States. There is more to Iran than supposedly stoning people -- can you cite as many instances of this occurring as shootings occur in US cities with regularity? Have you ever researched street crime in Iran? Did the Pew poll also mention that it is very common in Iranian-style Islam for victims and perpetrators of a crime to negotiate the punishment? For example, if a man kills a father or brother, he will not be imprisoned -- that helps no one; he will be required to provide for the family of that man for the rest of his life. That is far more common than stoning.

Shari law struggles to apply an Islamic sense of fairness -- and avoidance of usury -- to economic and financial transactions. It results in a less robust flow of capital, but far less of a gap between rich and poor, primarily because of Iran's determination not to submit to the sort of central banking/ Federal Reserve system that has plunged so many nations, and the US, into debt from which it can only extract itself by waging war or cheating the creditor.
I live in the suburbs of DC. I was arrested in Washington DC for protesting against George W. Bush's call for war. Please don't try to tell me about freedom of expression.

Holocaustism is a state religion in the United States. In western Europe it is a crime to write or speak anything other than the declared narrative about the wars in Germany; in the US, it is not a crime per se, but an office in the US State Department monitors speech and communication for "antisemitism," including the communication of FACTS about Jewish activities in the wars in Europe, that are contrary to the enforced dogma. Americans do NOT have freedom of expression-speech regarding the state-enforced dogma of holocaustism.
See how I make friends? What do you say to someone who would prefer to live in Iran? Not sure why I bothered, but I decided to lecture him:

I am sorry for your experiences. You can go live in Iran. I am sure that they would make much of your perspective. I am sure you read my comment as suggesting we live in a utopia, based on your response. No such suggestion is made. There are no utopias. The U.S. and Israel and western European countries all have faults and have committed terrible acts. Feel free to recount them. It is a relative thing. Go live in Iran if you like. You can vote for whoever you want, provided of course, that it is a candidate already selected for you by the only real power. Go practice any religion you want there, provided you don't insult Islam (here, Christianity, the dominant religion, can be insulted freely), which you might do by any comment not in accord with doctrine and be prepared to be a secondary citizen if you dissent in any way. Being Jewish is fun in Iran. Sure. I know many Iranian Jews who fled here to be free, but you might know better. Say whatever you like there, as you have done here, but prepared to spend your life in jail -- and, if you are, it will not be a mistake and the government subject to a law suit as it was here when the police grossly overreacted for political protests. Really, there are so many differences and the countries you decry so superior politically, that I realize that I could not possibly persuade you if you believe what you write. By the way, you just wrote whatever you liked about what you term "the state-enforced dogma of holocaustism" and no one will bother you or suggest you can't believe it here. Try going to Iran and publicly stating that you don't believe Mohammad leaped to heaven. If you don't believe a holocaust happened, perhaps you don't know any survivors. I do. And while I agree with anyone who might believe that we have a social taboo about talking about the holocaust, we are at least free to say what we like. I could go on, but Iran awaits you. Or any country where you get to live under the "fairness" of sharia law, provided you are a male Muslim, of course. But, I'd rather you stay, study American history with all its faults and challenges and realize the gift you have. It could happen.

I guess some people would find that anything but fun, but I do. But, often I'm not serious at all when I comment and am just enjoying poking the bear. I will leave this over-long, self-absorbed post with something more light hearted. A sports writer, Gregg Doyal, wrote an article suggesting that schools should not be punished when a player acts against the rules without their knowledge, to which I commented (although I'm not sure it actually posted, such are my internet skills):

Oh, come on.  Sports is foremost about loyalty, competition and consequences, not logic or "feel good" sentiments.

If a lineman hits the quarterback after the play is over or a cornerback interferes with a receiver, don't we punish the whole team? We don't wring our hands and say "Waaah! Why should the other players and coaches and team and fans get penalized? We didn't do anything wrong."  Yes, we did. We picked the wrong team.  In the same way, when a player or middleman does something morally wrong off the field there must a biblical collective retribution on everyone conceivable, from the coaches to the other players who unfortunately, probably joyfully, picked the wrong college to go to when just dumb high school kids. The alumni and general fans get to suffer too because they made the wrong choice, just like when they pick a stock and the CEO of the company buys a vacation home in Bermuda instead of funding the pension. Too bad. It may not be their fault, but it is their cross to bear and the rest of us, spared only by our good fortune or perhaps just better secrecy among co-conspirators, reap the rewards. That's life and the way it has always been. It's why the teams whose players don't get caught blood doping or using steroids get to keep their championships and medals and the ones who do get caught get everyone punished.  If sports is going to be based on some metaphysical or legalistic "actual guilt or innocence," we might as well scrap the whole system and instead of instant replays have litigation after every play. That will be fun.

Also, when I read or hear that a sports columnist claims that his position has "evolved" I reach for my remote or mouse. The whole point of a position in sports is that it is immutable. It's the same reason a fan can root for the same team over seven decades even though the team is awful and the players, owners and management have changed dozens of times. We root for the local team whether it's the lion or the gladiator. This is sports, not science or philosophy. It's more like politics. If the guy I want to vote for is accused of wrongdoing, he's innocent. If he's the guy you like, he's guilty. Just so if a touchdown is reviewed. The question is not, did he get his foot in? The question is who are you rooting for?  If that isn't so, how come polls show it over and over with just about everything? Do you really not know the opinion ahead of time when you watch Rush Limbaugh or Chris

Matthews? Loyalty determines who is right and wrong, not thinking about it. When I want to know what a commentator thinks about something, I want to know what he thought about it in the 4th grade. And that's it. Whose side are you on, Mr. Doyel?

I'm just kidding about all of the above, but, some of it started to sound right as I wrote it. Scary. But life is weird like that. I generally agree with Mr. Doyel here.  

Abideh abidee, th-th-that's all folks!

About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .