Law Religion Culture Review

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

Friday, October 31, 2008

The Bill Has Eyes.

Yesterday, I drove to downtown Los Angeles for a court appearance.

I gave the parking lot attendant some cash and received change. Shortly thereafter, I unfolded one of the dollar bills the attendant gave me.

I saw something I've never seen before.

Splashed across the face of George Washington was the unmistakable reddish brown hue of dried blood.

I wondered what those "eyes" must have seen. Was this the product of a botched drug deal? A contested robbery? Only "George" knows. And he wasn't talking.

Wednesday, October 29, 2008

Book Review: Scratch Beginnings by Adam Shepard (2008).

"Preach the gospel at all times -- If necessary, use words."
--Saint Francis of Assisi

Scratch Beginnings echoes this famous quote. It's best when describing what Adam Shepard did during his ambitious project. Not so much when it moves into preaching about it.

Shepard's project? "I'm going to start almost literally from scratch with one 8' x 10' tarp, a sleeping bag, an empty gym bag, $25, and the clothes on my back. Via train, I will be dropped at a random place somewhere in the southeastern United States outside of my home state of North Carolina. I have 365 days to become free of the realities of homelessness and become a 'regular' member of society. After one year for my project to be considered successful, I have to possess an operable automobile, live in a furnished apartment (alone or with a roommate) have $2,500 in cash, and, most importantly, I have to be in a position in which I can continue to improve my circumstances by either going to school or starting my own business."

More broadly, his investigative project serves as a "rebuttal" to Barbara Ehrenreich's Nickel and Dimed and Bait and Switch--books speaking of "the death of the American Dream." Shepard writes: "I resent that theory, and my story is a search to evaluate if hard work and discipline provide any payoff whatsoever or if they are, as Ehrenreich suggests, futile pursuits."

Shepard established some groundrules. He enjoined himself from using his college degree (he had just graduated from Merrimack College), credit history, or contacts. He further barred himself from begging or using services not available to others.

Shepard starts at a Charleston, South Carolina homeless shelter--his home for about 70 days. He describes life there ably and reveals some surprises about its inhabitants. According to Shepard, they are opinionated, hilarious folks who follow current events closely. They resourcefully use the library often for job searches and educational pursuits. They also cheer on the criminals on tv's Cops.

It's surprising how difficult Shepard toils to find work at first. Cold-calling a number of restaurants and hotels yields silence for even the lowest paying jobs--such as dish-washing and maid service. So much for the theory that "Americans won't do this type of work." Aside from work with agencies that skimmed a good portion of his earnings off the top and netted him about $30 a day, he had to essentially beg to get a job with a moving company that started at $9 per hour with no health insurance of course. Shepard admirably throws himself into this pursuit, learning from and modeling himself after his "hero", Derrick, who shows him how hard work and discipline can produce dividends, despite unfavorable odds.

The book's strength lies somewhere other than its prose. A sample: "[A]n older lady drenched in makeup and noticeably overweight...." Is there such a thing as unnoticeably overweight? The very nature of obesity is that it's not hidden. Another: "If they sent me out with Shaun [a fellow mover], they sent me out with Shaun...."

Moreover, when Shepard leaves the narrative and turns didactic, it abounds in cliche. An example: "Just me and a dream. In the end, though, isn't it really more about the journey, the process....?" It's more about the cliche evidently.

In the end, Shepard posits a formula for rising "from the pits of poverty": (1) hard work; (2) discipline; (3) a good attitude, and (4) smart decisions. Not terribly insightful or revelatory on their own, but Shepard's story illustrates them eloquently--mostly through his actions apart from the words, like Saint Francis of Assisi wisely counseled.

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Thursday, October 23, 2008

Book Review: Ahead of the Curve by Philip Delves Broughton (2008).

A job interviewer asked Philip Delves Broughton what he thought about Harvard Business School ("HBS"). "I said what I usually said, which was that I felt I had learned a lot, even though the place was a little loopy." (p. 214.)

This revealing quote encapsulates the basic structure of Ahead of the Curve, Broughton's memoir of his two years as an MBA student at HBS, graduating in 2006.

"I Had Learned A Lot"

On the one hand, Broughton credits the experience with causing him to learn much about business. "I had learned the language of business, the modes of thinking." (p. 275.) Perhaps more than he bargained for, he also learned a lot about himself. However, in this regard, the book assumed a "navel gazing" cant that revealed more about Broughton than the school. For example, Broughton writes: "HBS challenged me in ways I never imagined it would. I never thought I would be pushed so aggressively against the window of my soul." (p. 276.) Coming from about a decade in journalism, Broughton never quite seems sold on making the career transition. Indeed, he "had achieved a status as the only person in [his] section without a job offer, in "[t]he final weeks of HBS." (pp. 252-53.) Broughton repeatedly revisits the work-life balance problem of many/most/all? in his new chosen field. In discussing this apparent dichotomy, he lets some judgmentalism seep into his analysis, which leaked into other parts of the book, as discussed below.

"The Place Was A Little Loopy"

On the other hand, the book critiques just about everyone around him. His fellow students bear the brunt of his censure, although he changed their names to protect their privacy. (p. 3.) He seems to look down on these "overachievers" in many respects, including how they entertain, motivate and conduct themselves. Professors don't quite receive the same punishing comments as Broughton's classmates, but he does excoriate a professor of entrepreneurship who couldn't show more disinterest in Broughton's business idea and embarrasses another one who presented an idea Broughton found "self-evident" and not "meaningful." (p. 249.) Guest speakers are often pilloried especially in what he perceives as hypocrisy in their work-life balances, including Meg Whitman (formerly of eBay), Jack Welch (formerly of GE) and Henry Paulson (formerly of Goldman Sachs and now Treasury Secretary). Regarding Paulson, Broughton writes: "It was disingenuous of Hank Paulson to say that it was up to individuals to make time in their life for their family, having been chief executive of a company, Goldman Sachs, that famously drives its employees to work endless hours." (p. 281.)

He concludes the book with suggestions about how to improve HBS, including "get[ting] rid of grades altogether", "commissioning cases and courses on the proper scope of business practice", and changing HBS's mission statement whereby business "relearns its limits" as opposed to "'educat[ing] leaders who made a difference in the world'" as if business "has a right to impose its will on the world." (pp. 277-83.)

While this sort of insider book has been done before in law and business schools, Broughton's new book ably adds to the discussion largely due to his expertise as a writer, preceding (and now following) his foray into HBS.

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Wednesday, October 22, 2008

Pratfalls.; (about 2:45 into video); and

These physical pratfalls ably depict the legal pratfall I witnessed in court this week.

On Monday, the court heard a motion for summary judgment I brought on behalf of a corporate defendant. From the outset, the judge removed any doubt about who would win. He stated that I had successfully shifted the burden to the plaintiff to present evidence why my client should remain in the case. He then referenced my reply brief which observed that the plaintiff had presented no competent evidence to continue with the case against the defendant corporation. He then ordered summary judgment in favor of my client, saving a trial as to it. (Other defendants did not bring a similar dispositive motion and will be facing trial in December).

I jumped in to volunteer to prepare the order and judgment. Opposing counsel interrupted to say that he wanted to argue the court's ruling. That's when things got even worse for him.

He said that he objected to the declaration submitted by the corporation's president. The court asked why he didn't submit any written objections. No response.

The court then inquired what the objections were.

Opposing counsel replied: "Self-serving." The court rejected that offering, correctly noting it was not a legal objection. He then tried to state that it was "speculation." The court was similarly unimpressed, stating that it was hardly speculative for the corporate president to testify whether it had any dealings with the plaintiff.

The court asked if there was anything else. My opponent said, "I've got nothing."


Monday, October 13, 2008

Movie Review: Religulous (2008).

The most valuable currency in Hollywood isn't money.

It's final cut.

Directors know that the power to edit carries the power to shape or control the story, and so the most astute insist on it.

Bill Maher's Religulous ridicules religion principally through its power of editing. It selects its victims and excises anyone who might make sense. Not surprisingly, the movie trafficked in tongue-speakers and 6-day, young-earth creationists, as if those represent all of orthodox Christianity.

Moreover, I'm sure the more intelligent comments of its victims were also edited out to leave the absurd, the banal and laughable. Especially given the last adjective, it's undeniable the movie has funny parts. It also repeatedly splices in other movies and video footage (President Bush almost co-stars) to keep the audience on its toes and laughing.

Maher also mixes in his own homilies (oddly, he is often interviewed in a car in profile) as well as personal stories as he interviews his mother and sister about his religious background (he was raised Catholic). Maher exposes his ignorance at the outset when he refers to the book "Revelations." Sorry, Bill, it's "Revelation." He also engages in propagating canards about Christianity, and even suggests that all Christians believe in transubstantiation. Sorry again, Bill, that's Catholics.

Maher is an equal opportunity offender, however. He takes on the three major monotheistic religions (and others), but curiously doesn't skewer other religions such as Buddhism or Hinduism, among many others. Worse, he absurdly tries to tie Christianity with other religions in terms of terrorism risks. Bill, where's the evidence of that?

This accusation without evidentiary support undermines Maher's flimsy attempt to marry himself to evidence. He claims he merely preaches doubt and is slavish to hard evidence. Not so. Maher is quite certain with many of his certain pronouncements in the movie, such as there is no evidence of the historicity of Jesus. Sorry yet again, Bill, that's a nonstarter.

The movie has been compared to Borat and Michael Moore's documentaries. The Borat comparison has some appeal since its directed by the same director, Larry Charles. However, Maher unlike Borat refuses to bring the joke on himself. And unlike Moore, he often delivers zingers to his victims in their presence and then shows many of them appearing dumbfounded with nothing to say (with editing techniques fully on display). Who knows if that dumb look on their faces actually followed the comment shown in the film.

The movie is funny, but the viewer needs to understand that anything can be made to look ridiculous through the power of editing.

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Sunday, October 12, 2008


I tried a case this year where we sought to hold the trustee responsible for breaches of duties to a trust.

Among other things, the trustee caused a check of about $32,000 to make its way into her personal bank account. Our side uncovered this check during her deposition, and the trustee returned the money with interest days later.

At the trial, the trustee minimized this discovery by claiming (a) she wasn't sure how it got into her account and (b) it was repaid, so she questioned whether the trust or its beneficiaries were damaged.

In trial, the cross-examination was comical, watching her trying to maintain that she wasn't sure how it got into her account when we showed her and the court her signature on the check; the bank account signature card for this personal account; and other evidence showing her "fingerprints" on the transaction. However, the real comedy commenced with closing arguments.

She argued in closing: “this same sum, plus interest, made its way back into the trust account.”

I responded in my final argument: "Perhaps most remarkably, Respondent ['Trustee'] tries to avoid her unassailable fraud... by claiming she put it back. [ ] In taking euphemism to Himalayan heights, Trustee [ ] tries to dress up her theft with the following language: 'this same sum, plus interest, made its way back into the trust account.'

"What [Trustee] glosses over is that it 'made its way back' only after Petitioner [ ] had to bring this action, made numerous demands for information about trust assets, and received misleading information about the trust, including the glaring absence of this very sum from any of the information received from the Trustee. Indeed, this sum was only paid back after the deposition of [Trustee]—well into this costly case. Moreover, there was an unexplained and suspicious delay of 48 days before this sum was deposited into [Trustee's] personal account.

"But this attempted linguistic legerdemain reminds one of a bank robber’s offer to return the money—only after being caught and prosecuted. That it was belatedly returned—after [Trustee] was caught—does not unwind the underlying fraud in carrying out the misconduct that was only uncovered at the considerable effort and expense of Petitioner.

"Again, nowhere will one find the disclosure of the wrongfully purloined $32,000 in the initial accounting submitted to this Court and Petitioner. (Citation omitted.) It is conspicuously absent and evidencing [Trustee's] fraudulent intent and conduct.

* * *

"Moreover, even if the $32,000 was 'ultimately' returned (after filing of the Petition and taking of [Trustee's] deposition) this does not erase the underlying fraud and breaches of fiduciary duties in taking it in the first place, as discussed above. "

I further argued that the repayment was irrelevant because California Probate Code Section 859 authorizes the court to double the damages. So, I submitted the court could award $32,000 even though the $32,000 was repaid.

The statement of decision arrived last Friday, containing this summarizing excerpt:

"This court cannot think of a better example of a total breach of trust than the actions of [Trustee]. Her attitude toward her brothers and toward her testimony showed the court that she was not trustworthy in her descriptions of what occurred. She simply took from her mother's trust and she did it to help herself."

Here's how the trial judge dealt with the $32,000: "[Trustee] took $32,000 and then put it back (with interest). She claimed that wasn't a taking. If she gave it back, then what was it?" Good point.

Then the court repaid her actions with a sizable judgment (containing double damages) approximating a quarter of a million dollars, stripped her of any future distribution from the trust, ordered her to bear her own attorney's fees, and ordered her to pay our attorney's fees.