Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Friday, February 29, 2008


I just wrote the following introduction in a brief submitted today. I repurpose it for your reading pleasure:

"This is a case of two very large corporations abusing a consumer. The insult-to-injury here is that Plaintiff [ ] paid a considerable amount of money—over $100,000--to be abused by Defendants [ ]. At the end of the day, these Defendants have Mr. [ ]’s money and he has a [product] that doesn’t work. Mr. [ ] did his job and tried mightily to get it fixed. Defendants either ignored him or gave him a run-around that would make a DMV staffer blush." (Emphasis supplied.)

This client is actually the CEO of a mid-size corporation I also represent. He needed me to put the plaintiff's attorney hat on and represent him individually. As a plaintiff, you can add a little drama into the mix.

This writing exercise reminded me of some advice I received from a friend who covers a very well-known professional sports team for a huge newspaper in New York City.

He said he didn't believe in using a thesaurus. He believed writing should come from the heart--it's more authentic that way. If the word didn't surface instinctively, then its manufactured and will appear so.

This style of instinctive writing brings to mind some of the lessons of Blink (see prior post) and exhibits itself in this snippet.

Saturday, February 23, 2008

Book Review: Blink: The Power of Thinking Without Thinking by Malcolm Gladwell.

Blink's important.

Reading this short sentence, you have formed certain conceptions about it. These instantaneous impressions may be shaped by your experience with my prior book reviews; your experience with books; your experience with Malcolm Gladwell works; your experience with rapid eye movements; your interpretation of "important;" and a variety of other factors.

The fact that you have already developed opinions about this review points to what Gladwell calls in Blink "the adaptive unconscious" (p. 11), although he did not invent the term.

"This new notion of the adaptive unconscious is thought a kind of giant computer that quickly and quietly processes a lot of the data we need in order to function as human beings. The only way that human beings could ever have survived as a species for as long as we have is that we've developed another kind of decision-making apparatus that's capable of making very quick judgments based on very little information." (pp. 11-12; emphasis supplied.)

Gladwell identifies its power but does not blindly endorse it. "Blink is not just a celebration of the power of the glance, however. I'm also interested in those moments when our instincts betray us." (p. 14.) Gladwell offers examples on both sides of this tension.

For example, Gladwell provides an amazing study helmed by John Gottman of the University of Washington. "Gottman has proven something remarkable. If he analyzes an hour of a husband and wife talking, he can predict with 95 percent accuracy whether that couple will still be married fifteen years later. If he watches a couple for fifteen minutes, his success rate is around 90 percent." (p. 22.) You'll have to read the book to discover the tell-tale sign.

What Gottman does "teach[es] us a great deal about a critical part of rapid cognition known as thin-slicing. 'Thin-slicing' refers to the ability of our unconscious to find patters in situations and behavior based on very narrow slices of experience.... Thin-slicing is part of what makes the unconscious so dazzling. But it's also what we find most problematic about rapid cognition." (p. 23.)

Gladwell also explores these problematic aspects in Blink. In a somewhat humorous example, he offers the case of President Warren G. Harding. Voters evidently believed he would be a good president because he looked presidential. "[H]is 'lusty black eyebrows contrasted with his steel-gray hair to give the effect of force, his massive shoulders and bronzed complexion gave the effect of health.'" (p. 74, quoting Harding biographer Francis Russell.) However, in this instance, Gladwell says they were fooled by their adaptive unconscious or thin-slicing. Looking presidential didn't equate to being a good president. "He was, most historians agree, one of the worst presidents in American history." (p. 75.) Gladwell calls this sort of judgment by appearances the "Warren Harding error." (p. 91).

On the flipside, Gladwell argues against the common belief that having more data and more time to analyze it necessarily results in better decision-making. (pp. 13-14.) "In good decision-making, frugality matters." (p. 141.)

Ultimately, Gladwell comes to a balance. "[T]ruly successful decision making relies on a balance between deliberate and instinctive thinking." (p. 141.)

Gladwell continues with this theme of balance: "[W]e are often careless with our powers of rapid cognition. We don't know where our first impressions come from our precisely what they mean, so we don't always appreciate their fragility. Taking our powers of rapid cognition seriously means we have to acknowledge the subtle influences that can alter or undermine or bias the products of our unconscious.... Too often we are resigned to what happens in the blink of an eye. It doesn't seem like we have much control over whatever bubbles to the surface from our unconscious. But we do, and if we can control the environment in which rapid cognition takes place, then we can control rapid cognition." (pp. 251-52.)

This book has significance across myriad professions and life experiences. I believe the implications for trial lawyers are vast, although decision-making in trials received scant if any attention in Blink. Trial attorneys must be mindful of the thin-slicing being performed by jurors (and trial judge) with each witness, for example. Moreover, first impressions matter so much that the initial contacts with the jury--the voir dire process [asking questions to elicit juror bias] and opening statement--must be deemed the most crucial aspects of a trial.

This omission leads to a mild criticism of the book. The book inordinately focuses on police (and military) procedures and reactions, which are too specific to have broad application. More people are likely to have contact with the judicial system, as a party, juror, judge, attorney, witness or court staff, than being involved in a police shoot-out. At least that is my "thin-sliced" conclusion borne from the personal bias of my profession.

Highly recommended.

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Sunday, February 17, 2008

Adventure Review: Travel and Adventure Show; Phil Keoghan Speech (February 10, 2008).

Listening to a speech about travel and adventure is somewhat like having someone exercise for you. It sorta misses the point. On the other hand, a speech exhorting one towards adventure can be as beneficial as a motivational speech inspiring personal bests in athletics. Who can legitimately doubt that Vince Lombardi or Bill Cowher delivered stem-winders leading their team towards greatness?

While not exactly Lombardi or Cowher, Phil Keoghan, host of The Amazing Race, can deliver a effective speech, and in so doing, debunk the existence of the cardboard character masquerading as him on the television show.

First, he is much more charismatic than the flat fellow they have hosting the show. Second, he is as much an adventurer as the contestants racing across the globe. His life of adventure predated the program by decades. He recounted a story at the age of 19 where he thought he was lost and going to die 120 feet under the sea inside a shipwreck.

Thinking he narrowly escaped a brush with death, he immediately crafted a list of adventures to complete. That list is reproduced at his website:

“No Opportunity Wasted” is also the title of his 2004 book and his life philosophy. Over the past 20 years, Keoghan has crossed off many of these initial goals and added some new ones. The new list is also on his website.

Keoghan didn’t just focus on adventures for adventure’s sake. In fact, he expanded this concept by explaining how relationships can be repaired under the rubric of not wasting opportunities and taking risk.

In this regard, he spoke about taking a 10 day cross-country car trip with his father while promoting his book. He then committed to spending every summer (or part of it) with his father. His father mentioned that at 65 he thought he had only 15 summers left. This low number--capable of counting on one's digits with many to spare--hammered home to Phil that time is short. Additionally, it made him creative. He mentioned that summer comes twice a year—one in each hemisphere—so he could double the time with his father.

This speech highlighted how short life on Earth is. There’s no time like now or "NOW" (his acronym for "No Opportunity Wasted") to maximize it.

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Wednesday, February 13, 2008

Book Review: Fiasco: A History of Hollywood's Iconic Flops.

James Robert Parish outlines his purposes at the outset of his 2006 book:

"[M]y hope is that readers will come away with a better understanding of (1) why moviemakers so often fail to recognize that their big-budgeted pictures are doomed to disaster from the start and (2) what some of the factors are that distract studio executives and filmmakers from heeding the egregious mistakes of their predecessors as they embark on what may ultimately become one more of Hollywood's fiascoes." (p. 13.)

Parish profiles 15 movies to build this two-fold understanding. These movies differ in many ways. They come from different eras--from the sixties to 2001. Some are musicals, some are(intentional) comedies, some are action flicks, and some are heavy dramas. They have almost no common personalities. Only Kevin Costner (Waterworld and The Postman), Warren Beatty (Ishtar and Town and Country) and Robert Evans (Popeye and The Cotton Club) received mentions in more than one filmic flop.

What intrigued me was what tied the disparate fiascoes together. A common thread through each of them was not avarice, however. It was pride and hubris. The filmmakers wanted to make a lasting, respected picture to burnish their reputations. In the process, however, they forgot certain fundamentals. They were so wedded to their vision that they were blinded by realities staring them in the face. They were so determined to change the landscape of Hollywood with their genius celluloid offspring that they left a different legacy. These leadership lessons transcend moviemaking, and accordingly, this book offers almost globally applicable insight wrapped in the colorful package of the entertainment world. These outsized personalities provide myriad hilarious and tragic examples of arrogance, instrasigence, perfectionism, politicking and procrastination.

Occupying space in some hall-of-fame has to be Ishtar director Elaine May's performance in an earlier film called Mikey and Nicky (profiled in the Ishtar chapter):

"When asked why she had not stopped the shooting when her leads disappeared, she replied that the actors might just meander back onto the set and it would be interesting to see what happened next. Finally, the studio called a halt to the endless shoot, which had gobbled up more than 1 million feet of film. (The average feature film edits down from 40,000 to 50,000 feet to about 10,000 feet.)

"Thereafter May embarked on an astonishingly lenghty editing process on Mikey and Nicky. It extended well over a year. Disgusted Paramount executives demanded her final cut so they could, at last, distribute the beleaguered picture. To prevent this 'premature' release, Elaine stashed two reels of her production in a friend's garage in Connecticut, hoping to hold the entire movie hostage while she pursued further edits. Undaunted, the studio released the incomplete picture in a few venues to satisfy contractual requirements. Mikey and Nicky received mixed reviews and disappeared from sight. It led to lawsuits between the studio and May. Eventually the rights to the trouble-plagued picture reverted to Elaine. In 1985, at a screening at Manhattan's Musuem of Modern Art, May's very belatedly complete version of Mickey and Nicky was shown. This was May's final edit--which she had just finished, ten years or more after completing her shooting of the picture." (pp. 170-71; bolding supplied.)

Quoted in Fiascoes, veteran filmmaker Samuel Z. Arkoff pulls the rug out from those looking to change posterity with their movies:

"There's a difference between today's motion pictures and the art of Rembrandt, da Vinci, and Michaelangelo, which have lived and flourished for centuries. Probably not a single picture produced by anyone will be anything but a historical memento in a few hundred years." (p. 99.)

Thus, whether a film is a masterpiece or a fiasco the result ultimately is the same.

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Monday, February 11, 2008

Movie Review: There Will Be Blood.

“Never for an instant does it whirl along on wings of epic élan; generally it just bumps along from scene to ponderous scene on the square wheels of exposition.”

--Time magazine on Cleopatra.

There Will Be Blood doesn’t quite deserve this indictment. However, parts apply.

First, it's ponderous. The first 14 minutes bump along without any dialogue. However, like Castaway, this speaking silence allows the lead actor to audition for the Academy Award(tm).

Mission accomplished. This role yielded yet another Oscar(tm) nod for Daniel Day-Lewis. On the strengh of Mr. Day-Lewis' reputation, I saw this film before the nominations were announced. He doesn't do many movies, and when he does, he seizes for the proverbial brass ring. Maybe a victim of high expectations, but count me a critic or contrarian: I think his best thespian work lies elsewhere. For examples: Last of the Mohicans, In the Name of the Father, or Gangs of New York.

This film is like a symphony with some excellent components, but yielding an overall cacophany. In a symphony, for example, you can find virtuosos in the strings, geniuses in the winds, but something doesn't quite sound right. Here, there is no doubting the estimable skills of Mr. Day-Lewis and director Paul Thomas Anderson. Moreover, the story--a star itself--intelligently examines in the context of an oil baron around the turn of the last century multiple metaphors of "blood," such as familial relationships, the "blood of the lamb" (as in religion), sanguinary violence, and the lust for "life-blood" otherwise known as money.

However, the ultimate test in Hollywood is, "Does it work?"

Regrettably, it doesn't. Consuming over two and one half hours, the movie indulges the geniuses before and behind the camera without ultimate benefit. There's no getting around the fact that breaking down the movie into its constituent parts will allow, like Mr. Day-Lewis' character Daniel Plainview, the mining of gems. However, after putting those parts together, it just didn't work for me.

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Wednesday, February 06, 2008

Bad Day At Court.

Some attorneys get insulted.

Some attorneys get ungrateful clients.

Some attorneys get embarrassed.

Some attorneys get slugged.

This guy had all four happen to him on the same day.

Check out the video in the attached article:

(punch is at 7:06 followed by some disturbing moans).


Tuesday, February 05, 2008

State Court Solomonic Sagacity, Part III.

A tentative ruling in someone else's case:


Saturday, February 02, 2008


I recently tried a case where my worthy opponent objected in the form of a question. The "hear--" of "hearsay" would start out at one octave and the "--say" would end up a couple of octaves higher indicating a question rather than a declaration and also imperiling any glass in the vicinity.

I felt like lodging my own objection to her objections with something like, "Objection, Your Honor, counsel is guessing." I refrained. But I thought the advocacy would be more effective if the advocate presented confidence rather than reticence.

Taylor Mali has an ingenius sub-three-minute video on the phenomenon here:

Like you know what I'm saying?