f/k/a . . . the archives

August 31, 2005

one storm too many

Filed under: pre-06-2006 — David Giacalone @ 11:22 pm


one hand

then the other

eating alone

 

 

 

 

   









one wing
folded against the other–
colors of a dead butterfly

 

 

 

 

 

 

one mirror for everyone

the rest stop

restroom

 

 



“one hand” – Global Haiku (G. Swede & R. Brooks, eds., 2000) 

one wing” – The Heron’s Nest (Dec. 2001)

“one mirror” – from breathmarks: haiku to read in the dark 






 




  • by dagosan                                               












two days

after the hurricane –

tears for strangers

 



                          [Aug. 31, 2005]

 

plungeGraphG  potluck


tiny check  My head is swimming (drowning) with thoughts of Kristina‘s

devastation and chaos.   Safe in a comfortable home with working

plumbing, and having ready access to transportation, food, and

communications, I can’t possibly know what it feels like to be a

Kristina refugee.  This writer can’t find the words to express my

sadness and my hopes for so many strangers who seem so

vulnerable and face so many tribulations.

 

tiny check  RiskProf Martin Grace explains why Katrina will mean higher    graphClimb 

insurance rates for Florida and elsewhere — think: reinsurance, rebuilding

(lumber), and risk.    He also graciously points to our post today on Lawyer

Litigators Day, and usefully informs us that there is a new weblog from

Brookings-AEI regulatory group, called the Daily Reg-Report.



Browsing the new weblog, I quickly found a

study that confirms what I’ve said for years —

phoning while driving is more dangerous than

driving drunk.  See A Comparison of the Cell


F. Drews, D. Crouch. Working Paper 04-13. Jul 2004.

 


tiny check As busy as Martin Grace was at RiskProf, he nonetheless

contributed an interesting piece to Point of Law today, asking

whether The Catholic Church Gets Good Legal Advice? 

(While he’s surely right to suggest that the Church’s lawyers

have added to its woes, I’m not totally sure I agree with Martin

that “the Church’s lawyers did not cause the Church’s liability

problems.”   If counsel played any role in constructing and

prolonging the decades of cover-up and the sheltering of sexual

offenders, they indeed bear a lot of blame.)

 

                                                                                                                                                     monkey cellphone small 

 

 

it’s “Love Litigating Lawyers Day”

Filed under: pre-06-2006 — David Giacalone @ 1:15 pm

Thank goodness for my StatCounter Keyword Analysis page — it reminded me that August 31st is “Love Litigating Lawyers Day.” It seems that Evan Schaeffer and Beldar are too humble to bring up the topic. Even Overlawyered.com has overlooked it, as has How Appealling.

hugSmallN Last March, I wrote a post describing my unsuccessful search for Hug a Lawyer  Day or a Lawyer Appreciation Day. The closest I could find was today’s designation of Love Litigating Lawyers Day, which is mentioned on a couple of Celebrations Lists. Although our post is the #1 Google results for queries like lawyer appreciatin day>, I’m sorry to say that I have no additional details about how the day is celebrated or who sponsors it (of course, I have my suspicions).

update: See “we all missed Be Kind to Lawyers Day on April 8” (April 15, 2008)

The best I can do — in true Prof. Yabut and skepticalEsq fashion — is to collect a few of my favorite quotations about litigation and trials, for you edification

Let’s start with some observations from Abraham Lincoln‘s notes to law students:

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

“Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”

If that’s too serious, here’s a bunch from Poetic Justice, edited by Jonathan and Andrew Roth (Nolo Press, 1994):

As a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death.

— Judge Learned Hand

The houses of lawyers are roofed with the skins of litigants.

– -Welsh proverb

A lawsuit is a fruit-tree planted in a lawyer’s garden. scales rich poor neg

— Italian proverb

The lawyer’s prayer: God grant that disputes may arise that I may live.

— Spanish proverb

May you have a lawsuit in which you know you are right.

— Spanish Gypsy curse

Lawyer: A fellow who is willing to go out and spend your last cent to prove he’s right.

– Anonymous

hugSmall Finally, the always-insightful Gore Vidal has noted:

For certain people after fifty, litigation takes the place of sex.

tiny check If you prefer cartoons, here’s a goodie from Wiley and one with Lawyer Snoopy.

For those who want something meatier to chew on, go to the ABA webpage on
Choosing Mediation Over Litigation. If you’re one of those lost souls who fears
there just isn’t enough litigation in America, we suggest checking out our Dec.
2003 post Are There Really Too Few Trials

When you’re finished celebrating litigators today, don’t
forget that Aug. 31st is also National Box Car Day,
Trail Mix Day, Eat Outside Day and Mutt’s Day

clear and cold
the snap
of her attorney’s briefcase

… by Ed Markowski

tagging along
with an ice cream cone
the senior partner

long deposition–
the lawyer’s
“at the risk of repeating myself”

… by Barry George

litigation bags –
the associate’s
half-closed eyes

.. by dagosan


mouse artiste gray afterthought (3 PM): To no one’s surprise, the f/k/a gang thinks we need a Love a Lawyer-Poet Day. Until one is launched, the closest thing might be owning your very own copy of Off the Record: an anthology of poetry by lawyers, 28 Legal Studies Forum (No. 1 & 2, 2004), which is described here, or its sequel, Legal Studies Forum XXIX:1 (2005), described here. They look like law journals, but they contain food for the soul – and reason to celebrate every day, whether you’re litigating or not.


postscript (4 PM): You may recall that I did some unseemly begging at this website last week and convinced Evan Schaeffer to send me a Legal Underground coffee mug. It arrived this afternoon (lovingly packaged) and I’m just finishing my first cup of coffee from the mug. Thanks again, Evan. Do you think this will turn a retired mediator into a swashbuckling litigator?

August 30, 2005

lee gurga: this dentist makes you say “aha”

Filed under: pre-06-2006 — David Giacalone @ 8:18 pm

last bale of hay–
we sit down on it
and watch the moon

. . . by lee gurga

 

It may be the last week of August, but we’re here working hard to bring the very best in haiku poets to f/k/a‘s readers. Frankly, they don’t get any better than our newest Honored Guest poet, Lee Gurga.

 

GurgaMug Born in Chicago, Lee lives and works as a general dentist in the farming community of Lincoln, Illinois. A past president of the Haiku Society of America, he is currently editor of Modern Haiku, the longest-running journal of haiku and haiku studies in English.

His haiku collections have twice been chosen as best of the year by HSA, and his Haiku: A Poet’s Guide was recognized by HSA as the “Best Book of Criticism” for 2004.

Of course, as with our other Honored Guests, we care far more about the poet’s haiku and senryu than about his credentials. In the haiku of Lee Gurga, I believe you will see not only a mastery of the genre, but also the personal warmth and empathy that is mentioned by all who know him and his work. This is one dentist that everyone likes to visit — and to bring home. With clear words and direct images, and a zen-like egolessness, he allows the reader to feel the subtle “aha”

moment that was experienced by the poet.

 

GurgaScent  Reviewing Fresh Scent: Selected Haiku of Lee Gurga (1998), Cor van den Heuvel, Editor of The Haiku Anthology, declared that “Lee Gurga seems destined to forge a fresh poetic heritage for the midwest.” He continued:

“Not only does Gurga give us the beauty of the land, he presents us with the activities of its people in such a way that their loves and strengths, their sense of God and family, and their good humor and friendliness all reach out of the poems like a warm handshake. In giving us the heart of the heartland, his haiku give us the heart of America.”

At times, this weblog very much needs Lee Gurga’s warmth and humanity. Like his Fresh Scent editor, Randy Brooks, I’m “grateful to Lee for his gifts to us, these haiku from rural America.” Thank you, Lee Gurga, for the honor of sharing your poetry — beginning right now:


barnG

summer sunset—
baby finds his shadow
on the kitchen wall



street magician—
tourists appear
disappear

a bike in the grass
one wheel slowly turning—
summer afternoon


girl's bike



fluttering madly—
butterfly in the slipstream
of a passing freight


against the rumbling
of the thunderhead:
his toy gun



GurgaScentS Lee Gurga from Fresh Scent: Selected Haiku of Lee Gurga

(edited by Randy Brooks, Brooks Books, 1998)

“summer sunset” – 1st place, 1990 Manichi Dail News Haiku Contest

“street magician” – hon. mention 1989 World Haiku Contest

  • Click here for a few dozen Lee Gurga haiku,
    collected at Terebess Asia Online (TAO)

upsetting the ballast of nature

Filed under: pre-06-2006 — David Giacalone @ 3:09 pm

!!!  Please don’t fear that yesterday’s posts agreeing with Prof. Bainbridge will

unduly upset the balance of nature.  This morning, I quickly found something

disagreeable at his website – a bit of self-promotion bragging that L.A. Times

columnist Tim Rutten called Steve’s analysis of Catholic teachings relevant to

judges “precise” and “convincing”.  I couldn’t resist leaving a Comment reminding

Prof. B, with some quick examples from our prior post, that his analysis actually

was incomplete and muddied waters that had been quite clear. 


boxerSignN   Stay tuned!  An email from Steve suggests that

he is quite upset that I would imply he’s left things

purposefully muddy concerning Church teachings.

update (Midnite): Prof. B. and I continue the discussion

in earnest in the comments to his Self-Promotion post.

tiny check  Wish I could be there:  There will be an AEI panel discussion on Sept. 7th

in D.C. on the meaning of the $253 Million Vioxx Verdict.  Prospective (and 

contingent) Vioxx billionaire plaintiff’s lawyer Evan Schaeffer will be on

the panel, along with Overlawyered’s Ted Frank.  Evan will speak on the

effects of Ernst v. Merck on the jury system.

 

tiny check  Today’s NYT op-ed by John Tierney is right on target: special hybrid-car lanes

on  highways are likely to have the net effect of “dirtier air and more gasoline

consumption.” (“The Road to Hell Is Clogged With Righteous Hybrids,” Aug. 30,

2005)  High-ocupancy toll (HOT) lanes make much more sense.  See this CATO



Which reminds me:  besides Hawaii’s risky attempt  gas pump g 

to control petroleum prices (perhaps meant to be an

object lesson in economics and civics for its populace),

there seems to be a lot more talk of consumers holding

gas boycotts.  Please see our prior post on silly one-day


 




  • by dagosan                                               









sticky sunrise –

waking to an empty

ice cream carton

 

                     [Aug. 30, 2005]

 

 

selective memory: slaps vs. strokes

Filed under: pre-06-2006 — David Giacalone @ 12:12 am

A few years ago, I saw a magazine article that said it takes seven positive statements or

actions to compensate emotionally for each negative one you aim at your spouse.  I thought

about that insight into human nature this evening, when I got an email from Professor Bainbridge 

with the Subject “First for everything.”   Steve was amiably referring to my post earlier today,

in which I agreed with his conclusion that NRO’s Jonathan Goldberg had used an immature

and inappropriate brand of humor concerning the New Orleans residents taking shelter in the

Superdome. 

 

“BainbridgePix”  prof. b.

 

I immediately wrote back to exclaim “Hey, Steve, I’ve agreed with you many times!!”  Just in

case Steve has truly forgotten all the nice things I’ve said about him, and wants some verification,

I searched my site for Bainbridge +agree> and came up with the following examples:

 

 

tiny check from crow with a mouthful (Dec. 11, 2004)


This time, we agree with Prof. Bainbridge: “it is grossly unethical for a

professor to take money to speak on behalf of some interest group without

disclosing the conflict of interest thereby created. “







tiny check from no losers here (Oct. 14, 2004)


I’m with Bainbridge — that was a boring debate; followed by aggravating

post-debate commentary.

 



But, Professor Bainbridge raises another important issue today: bar   hugSmall 

associations acting like any other special interest group when it comes

to rating judicial candidates.   Although I usually favor intelligently-liberal

judges, I agree with Prof. B. that the ABA’s rating process appears titled

against conservative judges.  



By the way, Prof. Bainbridge is the only weblogger I’ve  discovered

who agrees with me, as he said, that there will  likely be cases where

serious Catholic judges like John Roberts “would be religiously obligated

to put one’s faith-based beliefs ahead of, say, one’s views of precedent or

socially accepted moral norms.”

tiny check from vote for a kid-centered halloween  (Oct. 31, 2004)


It must be post-sugar-trauma syndrome (yes, I delved into the candy

early), but I agree withProf. Bainbridge today about, cats and dogs,

crooked business, and needing to close his eyes after the election.

 

tiny check from jobs & weblogs  (Nov. 12, 2004)


A job for webloggers:  Let’s join Prof. Bainbridge in urging the

President and serious politicians to remove the scourge of gerrymandering

and then following up and staying on the case to get the job done.

 hugSmallN

and



The Law Professor’s JobProf B. also has a tribute to his professor

Stan Henderson and quotes fromHenderson on the job of a law professor

(and that of a lawyer, too): [lengthy quote inserted]

 

tiny check from dandelion ghosts  (Feb. 17, 2005)


All kidding aside, for a moment, Steve Bainbridge has some very good  

questions for his fellow conservatives on private Social Security accounts

Check his TrackBacks and decide whether their answers are persuasive.

 

Of course, I could probably find more, by using some fancy search terms, but you

get my point — before today, I had voiced agreement with Steve at least eight times

in less than ten months (always leaving Trackbacks, and often being downright

cordial).  Why didn’t he remember?   Let’s chalk it up to human nature — we always

seem to recall slaps more than strokes.   (Hey, do you suppose he was trying to be

humorous? Nah, he’s a Conservative.)


puppySam  Do I get extra credit for posting a picture of 

puppy Sam Bainbridge last year, with a link to the original?

I’m just hoping Prof. B  doesn’t hold me to that spousal “seven to one” calculus.  I’d 

have a lot of homework to do for a passing grade.   

 

 

 


flea market-
seeing my old shirt
on her new husband

 

 

                                                        another argument unfolds the futon

 

 

 

 


“flea market”: Frogpond XXIII:3 (2000);

“another argument”: bottle rocket 4

 

 






through the open door . . .

her smile doesn’t forgive

all my sins

 

 


 





 

 


sunrise

I forget my side

of the argument

 

 


    George Swede from  Almost Unseen 


 







                                                              boxer smf

 

August 29, 2005

whistle me home

Filed under: pre-06-2006 — David Giacalone @ 6:03 pm

 



It suddently feels like deep summer again in Schenectady. 

Pamela Miller Ness can, apparently, relate:

 



 

 










midday sun
my shadow
to the ocean floor

               

 

 




summer breeze
the criss-cross of gull tracks
in damp sand

         

 

 

 

 

 

such heat
the weight
of the cat’s breath

                       









“Girl’s bike” 

 

 

 

midsummer evening

mother’s two-syllable whistle

                         ends our play

 

 



“midday sun” – The Heron’s Nest (Oct. 2001)

“summer breeeze” – The Heron’s Nest (Oct. 2000)

“such heat” – The Heron’s Nest (Aug. 2004)

“midsummer evening” – driveway from childhood   (Small Poetry Press, 1997)  

 




  • by dagosan                                               








sudden scent

of moth balls –

the widow’s open window

 

                     [Aug. 29, 2005]

potluck


tiny check Note to Self:   Every Monday visit the new Blawg Review and click checked box 

through to one hitherto unknown/unvisited weblog.   Today, I went to Carolyn

Elefant’s Blawg Review #21 and followed her pointer to the legal writer.  That

post led me to a column from SFGate.com that was well worth my time — on

a topic that has long interested me: “Why Do You Work So Hard? Is it maybe

time to quit your safe job and follow your path and infuriate the establishment?”

It’s by Mark Morford.  (One quibble with Mark:  there’s no need to think you have

to or will infuriate the establishment.  It’s more likely you’ll dismay your family and

friends.)




  • Thank you, Anita Campbell, at Small Business Trends, for

    pointing to Blawg Review #21 and highlighting our piece on

    the Canadian Bar Association and the image of lawyers.

tiny check  This time, I’m on Prof. Bainbridge’s side.  He puts Jonathan Goldberg in his place

for some silly-insensitive (meant-to-be-funny) remarks about folks in New Orleans

who are seeking refuge in the leaking Superdome.   Given Goldberg’s reply, I’m not

holding my breath that he’ll grow up any time soon.

 

tiny check Mike Cernovich is taking on Daniel Solove at Prawfsblog over “censoring” internet

“vigilantism”  and “shaming.” The debate (carried on in the Comments and at C&F)

shows the power of being able to “frame” an issue.   It also shows that 1) complicated

topics can be difficult to deal with in the weblog format; and 2) as mediators know, a

respectful discussion often shows that opponents have a lot that they can agree on.

 

                                                                                                                                                            girl's bike flip

August 28, 2005

watch us tip

Filed under: pre-06-2006 — David Giacalone @ 9:23 pm

While he’s been gone on vacation, I’ve missed the many haiku gifts

(and kind critiques) so often left here by ed markowski.  Ed and Laurice

are back home from the Upper Peninsula of Michigan, and apparently

had a great time.   Ed says he found this pearl “on the pier at Marquette

Harbor:”

 






lake mist

a woman drops rose petals

over the seawall

 

He should hang out on more piers.  I don’t know

where he “found” this trio, but I hope he goes

back for more:

 


 

only the waterfall

just as it was…

second honeymoon

 

 






                       river house flip

 








northwoods curio shop

         every crystal trinket

                    made in taiwan

 

 

 

 

on the riverbank

a goose and her goslings

watch us tip

 

 


“only the waterfall” – haikuworld’s shiki kukai winner (Aug. 2005)

 

 


 






  • by dagosan                                               




 

aging veggies

in the fridge –

I break a few eggs

 

 

[Aug. 28, 2005]

 

 

 

 canoeing pair small neg  potluck


tiny check The unknown but omnipotent Editor of Blawg Review has responded to my

recent musings about that project with a very helpful Comment, which gives a good

explanation of how postings are chosen for inclusion in each weekly edition. 

 

tiny check    That hurts so good:  Walter Olson’s not greedy.  He’d even let Russell Crowe    CroweOscar   

throw a telephone at him for a lot less than a million dollars.  Of course, broadcasting his offer 

at Overlawyered.com raises a few issues relating to permissive touching and assumption of

risk.  On the other hand, I’m pretty sure there are plenty of good tort lawyers who’d work pro

bono for Walter. 

 

tiny check  Prof. B. may have to start rattling his tip jar big time on behalf of the Seattle Catholic Diocese. 

“Seattle Churches can be sold to pay debt, judge rules” (Seattle Times, Aug. 27, 2005, via Point of Law). 

How much is a church worth on the open real estate market?   I do feel bad for the parishioners who

will now face much uncertainty.   However, the conspiracy of silence between bishops and priests,

along with the “see no evil” attitude of the too-faithful, created this fiscal mess for the Church.

 

coin plate

 

 

 

                                                                                          

no welcome mat for Katrina

Filed under: pre-06-2006 — David Giacalone @ 7:23 pm

With Hurricane Katrina heading straight at New Orleans, the f/k/a gang send

our best wishes and hopes to all the affected people – especially to our haiku

friend Prof. David G. Lanoue, at Xavier University, and to Ernie.  Neither David’s

Issa website nor XU’s homepage have been accessible this afternoon.   I was

hoping to find a few poems on rain storms and floods, but couldn’t get to the

Issa search engine.   You can, however, click here for a page of typhoon/hurricane

haiku from a 1999 Shiki Kukai contest.

 


HKatrina  Luckily, I had a handful of almost-relevant haiku by

Kobayashi Issa stashed on my computer:

 



speaking truth
the rainy season’s crack
of thunder

 

 

 

 







lightning flash–
the astonished face
of the dog

 

 

 

 

 

 

 

lightning flash–
not giving a damn
the toad’s face

 

 

 

 







HKatrinaN

 

 

 







big rain
big moon
cicada in the pine

 

 

 

 

 

 

the day is devilishly
long!
long!

 

 



translated by David G. Lanoue

 

 

 

 


 

 


      gridlock
         on the freeway–
the skywriting drifts

 

              


http://www.brooksbookshaiku.com/welch/26…;click for original haiku and photo

 

 

 

                                                                                                                     stormclouds neg

August 27, 2005

walking in someone else’s sneakers

Filed under: pre-06-2006 — David Giacalone @ 6:59 pm


Last night, I stumbled across a cache of  selected poems by w.f. owen.

Since I never seem to have enough haiku and senryu to use here at

f/k/a by Dr. Bill, I was very pleased.  Naturally, I had to share a few right

away:

 

 

 


family reunion   

new shoelaces   

in old sneakers    

 

 

 

 

 

 






shaking out  

the picnic blanket    

first stars  

 

 

 

cometG

 

 

 

long day  

his finger slows   

the spinning globe    

 

 


“family reunion” Acorn #5 (2000)

“shaking out” & “long day” – Two Autumns Reading (HPNC, S.F., 2003)

 

 












clearing out 

the spider webs –

again, I spare the cricket


              [Aug. 27, 2005]

 

 

potluck


tiny check  Bravo to Jeremy Richey, who explains here (“Some People,” Aug.  devil g

21,  2005) why he wants to be a public defender.   JR was inspired by a

post at ambivalent imbroglio that asks why public defenders often

see all prosecutors as evil.  I’m always taken aback when any group

of people tries to paint all of their opponents as bad or somehow

subhuman.  I guess the fear and hatred of “the other” is deeply

entrenched in human nature.  Still, we all need to aspire to a better

nature. 

 

 

August 26, 2005

scarecrow: yes, strawman: no

Filed under: pre-06-2006 — David Giacalone @ 11:27 pm

After spending too much time today shooting at strawmen,

I thought I’d enjoy a bit of scarecrow gazing.  Here are another

pair from The Scare Crow: A Collection of Haiku & Senryu (Leroy

Kanterman, Ed., Hiroake Sato, translator, Red Moon Press,

1999).  Click here for three more by some of f/k/a‘s Honored Guests.

Below, you’ll also find a few from Issa and one from dagosan.

 

 

scare crow cover 

 








ginko–

our hostess leads us

toward a scarecrow

 

            John Stevenson

 

 

 

 

 

 

 

crows leaving

as quickly as they land

    — I am the scarecrow

 

             Tom Clausen

 



 

 

 

 

crow sm

 

 

like people
an upright scarecrow
can’t be found

 

 

 

 

 

 

 






burning rubbish–
a scarecrow too
goes up in smoke

 

 

 

 

 

wind-bent in moonlight
the scarecrow leans
on a cane

 

 

 


by Kobayashi Issa - click for 50 more scarecrow haiku

translated by David G. Lanoue

 

 







 

 

crow smf

 










scratching my back –

one more job

for the scarecrow

 

 

         dagosan   [Aug. 26, 2005]  

potluck



tiny check  Have you noticed how often the Editor of Blawg Review  graphClimbN

kisses the InstaButt?    I wonder what Prof. Reynolds thinks of all 

this fawning.   Meanwhile, no matter how many times my buddies

at Blawg Review tell me about other Weblog Carnivals that boost

visits, I have never had a Blawg Review listing that registered more

than a dozen total hits over a week.  [in contrast, a jd2b link can bring

hundreds of visitors, and Overlawyered many scores of them].   Hmm. 

Maybe somebody better start kissing the InstaButt a lot more.


“tinyredcheck” One more thought: Blawg Review says that it is

a peer-reviewed carnival for law weblogs, and its

tagline suggests editorial input.  Also,  the BR 

Submission Guidelines point out that “The host

shall be at liberty to present the submission, or not.”

Nonetheless, the Hosting Guidelines say “It is the

concept of Blawg Review, within reason, to be inclusive

of all posts submitted for review in the week prior to

each issue.”  Would you be more likely to click through

a Blawg Review listing if you felt there were some

quality control being exercised by the Host?  Can any

collection of links be considered the best recent posts

if there is no filter between the ego of the submitting

weblogger and placement on the list?   There I go again,

being an elitist — and sticking my nose uninvited under

someone else’s carnival tent.  Sue me. What do you think?

 

update:  The Editor of Blawg Review has responded with

a very helpful Comment, which gives a good explanation

of how postings are chosen for inclusion in each weekly

edition. 

sumoS  While I was fretting over contingency fees all afternoon, Mr.

Google was (inadvertently) sending me traffic.  Here are two queries

that seem noteworthy:



lawyer appreciation“>  Just don’t know why, but there were only

119 results for this Google search.  We’re pleased to say that the

first result was our post describing an unsuccessful search for

holidays and events that honor lawyers, and the second result

was this post, wherein skepticalEsq was a bit credulous about a

“grassroots” rally in support of plaintiffs’ lawyers in Madison County,

Illinois.

 

typical diet of a sumo wrestler>  We inadvertently garnered the #2

slot in this Google search — out of nearly 6000 results — thanks to a post

about the “typical diet” of billable hours for young associates and an

Issa poem mentioning a sumo wrestler.   Our link was sandwiched in

between a USAToday article about the health woes of retired, less-active 

sumo wrestlers (e.g., Haiwaiian-born sumo legend Konishiki used to wrestle

at 665 pounds, but now wants to get down to 400 pounds), and a more

scholarly piece that mentions retired sumo wrestlers and the fight to control

diabetes — as “an example of fit and fat becomes fat and sick”.












scarecrowHaikuN

 

 

fees of the assumption

Filed under: pre-06-2006 — David Giacalone @ 8:38 pm

It is only fitting that AEI’s Liability Project has released Two Cheers for Contingent Fees to

coincide with the Catholic Feast of the Assumption of the Blessed Virgin Mary (which celebrates

Mary’s having been “taken up body and soul into heaven upon her death”).  Two Cheers is a

42-page monograph by Alex Tabarrok and Eric Helland (available here in pdf format), which

concludes that limiting the contractual rights of plaintiffs and their lawyers, by restricting the

size of contingency fees, “is an unattractive and likely ineffective method of achieving” the goal

of tort reform. (via Ted Frank)

 

Like the Catholic who believes in Mary’s “corporeal assumption” based on faith and dogma (with

no empirical evidence), Tabarrok and Helland base their conclusions on assumptions that appear grounded on little more than faith, orthodoxy and wishful thinking.  For example, as Walter Olson argues at Point of Law:


I also very much doubt that further empirical investigation will bear out their claim  trashman small flip

that contingency fees “do not cause higher awards” or that “contingent-fee limits

are unlikely to reduce lawyers’ income very much, since they will simply switch

to hourly fees”. In fact, I feel confident that most contingency-fee lawyers themselves,

seeing their practice from the inside, would part company from Tabarrok and Helland

on key points in this analysis.  

T&H’s primary assumption is the shakiest:  They say [at 5]:


“Contingent-fee arrangements are contracts, and along with the vast majority

of economists, we start with the presumption that self-interest pushes private

bargains toward efficiency.”  . . .

 

“In short, our skepticism with respect to the tort system and our defense of

contingent fees rest on the same general presumption in favor of contract.

Restrictions on contingent fees are restrictions on the freedom to contract

and, as such, must clear a high hurdle to be justified. The presumption for c

ontracts can be rebutted. But in examining well-accepted contractual practices,

one ought to start with the premise of efficiency even when neither the theorists

nor, for that matter, market participants themselves can conclusively explain

why the arrangements are efficient.”

This assumption of efficiency has no basis in fact when applied to the contingency fee

arrangement between lawyer and client.  In the vast majority of cases, the lawyer presents

the client with a contract that reflects the standard or “prevailing” fee in their locality; the

client has no idea that he or she has the right to negotiate the percentage level, and has

no information that would allow for intelligent bargaining — e.g., the likelihood of success,

how much work is involved, or how much the award is likely to be. (see our post “it’s not

unusual (to charge one-third”)

 

TwoCheersFees  I don’t know why the cover of Two Cheers depicts the U.S. Supreme Court

building (lack of an art budget? of imagination?).  However, I’m glad they reminded me of the

Supreme Court and its opinion in Gisbrecht v. Barnhart, 535 U.S. 789 (2002). Gisbrecht dealt 

with the use of contingency fees in Social Security disability cases, where the fees are capped 

at 25% of past-due benefits.  Justice Ginsberg wrote the majority opinion, joined by seven other

justices, and Justice Scalia dissented.   The Court noted:


Characteristically in cases of the kind we confront, attorneys and clients enter into

contingent-fee agreements “specifying that the fee will be 25 percent of any past-due

benefits to which the claimant becomes entitled.” . . (“There is no serious dispute among

the parties that virtually every attorney representing Title II disability claimants includes

in his/her retainer agreement a provision calling for a fee equal to 25% of the past-due

benefits awarded by the courts.”).

Although Justice Scalia dissented, he had this to say about the mode of contracting (emphasis

added):


“The fee agreements in these Social-Security cases are hardly negotiated; they

are akin to adherence contracts. It is uncontested that the specialized Social-Security

bar charges uniform contingent fees (the statutory maximum of 25%), which are

presumably presented to the typically unsophisticated client on a take-it-or-leave-it basis.”

If T&H had bothered to look, they would have found that, in the individual injury cases    one third gray 

that are the focus of their monograph, virtually every p/i contract has a contingency fee that is set at

the maximum allowed in the jurisdiction.  The fee is presented to the client as the “standard” fee,

with no opportunity to negotiate for an “efficient” contract.    Rejecting fee caps in the holy name

of “contract efficiencies” demands a faith-based brand of deduction and reasoning that should be

anathema to objective economists — and policy-makers.



tiny check T&H also use the empirical work of Prof. Herbert M. Kritzer to support

their claim that contingency arrangements do not generate inappropriately high fees

as compared to work done on an hourly basis.  Kritzer’s work has been debunked by

us here, and by Prof. Lester Brickman, as described here. Also, their hypotheticals

assume a 50% chance of a lawyer winning a case and being paid, whereas it seems

quite clear that p/i lawyers seek much more certainty when accepting a case — and

are in fact victorious in perhaps as much as 90% of cases. (see this post, as well as




tiny check Their repeated use of hypotheticals and analogies involving tips given to restaurant

waiters also leaves this reader scratching his head.  The mere fact that tips are paid

after service is rendered, with the amount being at the discretion of the customer,

should be enough to make the authors look for better examples.

There are many other leaps of faith and much faulty reasoning in Two Cheers, but there is one more

major error that seems to demonstrate that T&H do not grasp the basic ethical problem raised by

client advocates like Prof. Brickman and myself against the “standard contingency fee.”  T&H say:


“In support of a collusion theory, Brickman and others have observed and inveighed

against the fact that the same contingent fee applies to a big case as to a small one.

The suggestion here is that time and effort do not rise in direct proportion to the “size” of

a case.” [emphasis added]

It is the size of the risk undertaken by the lawyer — the likelihood of winning and the likely amount

of work and expense required for the case – not the size of the case, that is at the core of Prof.

Brickman’s argument (and mine).  T&H never address the risk issue — and never explain how or

why the same percentage fee is charged across the board in very dissimilar risk situations.

 

scales rich poor neg  No matter what happens with tort reform, action should be taken to enforce ethical restrictions on

the use of the standard contingency fee.  The Association of Trial Lawyers of America (ATLA) has often

stated that attorneys should “exercise sound judgment in using a percentage in the contingent fee

contract that is commensurate with the risk, cost and effort required.” [Georgia's Trial Lawyers have repeated this standard here.] That is what is demanded by our ethical rules. But, America’s p/i lawyers have never put this pronouncement into practice.  (see Some UnCommonly Good Advice on Contingency Fees)

 

As I have often said before, each lawyer owes loyalty to one client at a time. Each case taken on

contingency must be evaluated for its own merits and risk — and the fully-informed client allowed to

negotiate and ultimately be charged a fee reasonably related to that risk. When the lawyer charges

a standard fee to virtually every client — and it is the maximum percentage allowed in the jurisdiction — many clients are by definition overcharged.   Injured consumers should not be sacrificed on the altar

of the Holy Contract based on purely apocryphal efficiencies.

 

 

update (Sept. 23, 2005): See our post trivializing economics (Tabarrok and Helland), a

response to the ABA Journal eReport, Fee Caps Won’t Solve Liability Crisis, Study Says.”

 


at my gate

they pay their respects. . .

fireflies

 

 

 





taking up

the holy man’s chant. . .

croaking frogs

 

 




fireworksSmN

 




riverboat. . .

on a night of fireworks

still selling fireworks

 


translated by David G. Lanoue





 





                    

 

August 25, 2005

the mosquito’s feast

Filed under: pre-06-2006 — David Giacalone @ 6:56 pm

 

 

sheets

on the clothesline

the wind curves

 

 

 







 

breadwine neg

 

 






porch dinner

a mosquito feasts

on my date

 

 

 

 

 

 

 


 

summer twilight

the red barn’s roof line

sags with age

 

 

 

 

 









Milky Way -

carefully she spreads

the quilt

 

 

 

 

barnG  Yu Chang 

“Milky Way” & “porch dinner” – Upstate Dim Sum (2001/II)

“sheets” -   A New Resonance (1999); South by Southeast 3:4

“summer twilight” – A New ResonanceModern Haiku XXVII:3

 

 







 

backyard bocce -


tonight we’re

the noisy neighbors

 

 

 

 

 

 

 

grandpa’s smile

vanishes –

one flattened tomato plant

 

 

 

dog black

 

 

 

 


 

 

the red ball is closest –

sunset distracts

the green team

 

 

 

 

 

 

 

 





twilight 

not even the dog

can find the pallina

 

 

 





 

 





girls against guys —

who knew

white wine improves your aim?

 

 

[Aug. 25, 2005]

                                                                                    

 

potluck


wrong way smN Not In My Vista! Most of my friends are thoughtful liberals.  They take for

granted that wind energy is a very good thing.  Although they would scream like hell

if someone wanted to put a Wal-Mart (or another Starbucks) in their neighborhoods,

they seem to have no problem with windfarms being located next door to their country

cousins.  Because my brother, Arthur J. Giacalone, represents a number of clients who

would prefer to keep noisy and unsightly masses of windmills and wind-turbines away

from their rural homes and out of their vistas, I’ve thought about this more than my urban

friends.   This article from today’s Buffalo News – “Sheldon residents sue town over

turbines” (Aug. 25, 2005) — tells of one suit brought by lawyer Giacalone, and suggests

some reasonable provisions that would allow the wind energy industry to grow, while

protecting the rural character and the scenic vistas and viewscapes in the countryside.




  • Aren’t there a lot of mountain tops and ridges that have

    already been ruined by strip-mining?  Why couldn’t we

    focus major wind-energy projects in those areas?

tiny check I was amused this evening to find my post on Kinky & Callahan at the top

of the Topix.netKinky Friedman News” page.  I also found a number of interesting

articles about Kinky, including this one from CBSNews (with details of a Lee Cowan

interview dealing mostly with Kinky’s politics and his former band), and this one from This

Week News, which describes Kinky’s 17th mystery novel, Ten Little New Yorkers, (which

looks like the end of the line for his Kinky Friedman doppelganger character) and explains

that Richard “Kinky” Friedman is really serious about being the governor of Texas, even if

humor is his main weapon.  As Kinky explains:


“kinkyMug”  getty photo    “Make no mistake, just because humor is the weapon

that I  use to joust at the windmill, that doesn’t mean I’m not going to knock it down.

Will Rogers and Mark Twain were very important cultural leaders in this country,

even though they weren’t in politics. So humor is just a device for sailing as close

to the truth as you can without sinking the ship.”

 

                                                                                                                          bocciN

the mosquito’s feast (and bocce feats)

Filed under: pre-06-2006 — David Giacalone @ 6:56 pm

sheets

on the clothesline

the wind curves

 

 

 

 

breadwine neg

 

 

porch dinner

a mosquito feasts

on my date

 

 

 

 

 

 

 

 

summer twilight

the red barn’s roof line

sags with age

 

 

 

 

 

Milky Way -

carefully she spreads

the quilt

 

 

barnG Yu Chang

“Milky Way” & “porch dinner” – Upstate Dim Sum (2001/II)

“sheets” – A New Resonance (1999); South by Southeast 3:4

“summer twilight” – A New Resonance; Modern Haiku XXVII:3

 










backyard bocce -



tonight we’re


the noisy neighbors









grandpa’s smile


vanishes –


one flattened tomato plant





dog black









the red ball is closest –


sunset distracts


the green team














twilight


not even the dog


can find the pallina















girls against guys —


who knew


white wine improves your aim?




[Aug. 25, 2005]




potluck



wrong way smN Not In My Vista! Most of my friends are thoughtful liberals. They take for


granted that wind energy is a very good thing. Although they would scream like hell


if someone wanted to put a Wal-Mart (or another Starbucks) in their neighborhoods,


they seem to have no problem with windfarms being located next door to their country


cousins. Because my brother, Arthur J. Giacalone, represents a number of clients who


would prefer to keep noisy and unsightly masses of windmills and wind-turbines away


from their rural homes and out of their vistas, I’ve thought about this more than my urban


friends. This article from today’s Buffalo News — “Sheldon residents sue town over


turbines” (Aug. 25, 2005) — tells of one suit brought by lawyer Giacalone, and suggests


some reasonable provisions that would allow the wind energy industry to grow, while


protecting the rural character and the scenic vistas and viewscapes in the countryside.


  • Aren’t there a lot of mountain tops and ridges that have

    already been ruined by strip-mining? Why couldn’t we

    focus major wind-energy projects in those areas?


tiny check I was amused this evening to find my post on Kinky & Callahan at the top


of the Topix.netKinky Friedman News” page. I also found a number of interesting


articles about Kinky, including this one from CBSNews (with details of a Lee Cowan


interview dealing mostly with Kinky’s politics and his former band), and this one from This


Week News, which describes Kinky’s 17th mystery novel, Ten Little New Yorkers, (which


looks like the end of the line for his Kinky Friedman doppelganger character) and explains


that Richard “Kinky” Friedman is really serious about being the governor of Texas, even if


humor is his main weapon. As Kinky explains:



“kinkyMug” getty photo “Make no mistake, just because humor is the weapon


that I use to joust at the windmill, that doesn’t mean I’m not going to knock it down.


Will Rogers and Mark Twain were very important cultural leaders in this country,


even though they weren’t in politics. So humor is just a device for sailing as close


to the truth as you can without sinking the ship.”



bocciN

August 24, 2005

are Canadian haijin different?

Filed under: pre-06-2006 — David Giacalone @ 4:08 pm

Continuing our focus today on things Canadian, I thought I’d share

a few haiku from DeVar Dahl, who lives in Alberta.  I’m in no position

to answer the question in the headline to this post, but I’d be happy to

hear from DeVar on the subject (or maybe even from haijin-psychologist

and Torontonian George Swede).

 

 

 








a steady breeze

the last child

leaves home

 

 

 

 

 

summer heat

the crickets wait

for me to pass

 

 








fan box gray

 








empty cabin

the beached canoe

fills with leaves

 

 


“a steady breeze” – these silent rooms

“summer heat” – Haiku Canada Newsletter XIV:3

“empty cabin” – Snapshots Calendar 2002

 

 


Speaking of consumers wanting added value, here are a

bonus pair from George Swede:

 

 


among the yellow roses

the yellow butterfly

grows still

 

 

 

 

 

 





my stomach growls

the old tomcat opens

one yellow eye

 


(Brooks Books, 2000) 

 

 











late August —

she switches 

my fan to low speed

 

[Aug. 24, 2005]  

potluck



tiny check Not owning an MP3 recorder, nor digital camera, I’m yawning even more than  iPodIssa

Evan Schaeffer at his latest Gadget update.  However, this is a good time to remind my

visitors that they can get 300 Issa haiku for iPod, thanks to David Lanoue (the translator)

and website host Eric Antonow.  Speaking of Evan: I’m still waiting for my Legal Underground

coffee mug, as I was afterall the very first Guest Writer at his weblog.


coffee cup neg update: It only took Evan a few minutes to leave a Comment

offering to send me a mug.  I wonder what I can wrangle out of him next week.

Thanks, Evan!!

 

 

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