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May 07, 2011
Huxley.
Many more people have died for their drink and their dope than have died for their religion or their country. The craving for ethyl alcohol and the opiates has been stronger, in these millions, than the love of God, of home, of children; even of life.... Why should such multitudes of men and women be so ready to sacrifice themselves for a cause so utterly hopeless and in ways so painful and so profoundly humiliating?
--Aldous Huxley, "Drugs That Shape Men's Minds", The Saturday Evening Post, October 18, 1958
Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (1)
May 06, 2011
The Economist: America, bin Laden & killing abroad.
Our take? We are at war; the killing of bin Laden Sunday was a legitimate, straightforward and better-than-usual U.S. military operation. But do see "Assassination: A Messy Business" in yesterday's The Economist. It begins:
Killing quickly in combat, when large numbers of soldiers are fighting according to the laws of war, is sad but legal. Change any of those parameters, and things get tricky. Some lawyers have denounced the killing of Mr bin Laden, unarmed and in his home, as an extra-judicial murder. Others see it as a wholly legitimate military operation.
Every country allows soldiers to use lethal force against a declared enemy in wartime, just as police may, in some circumstances, kill criminals. But America is at war with an organisation, not a country, and though al-Qaeda is not a state it is (by its own account) at war with the United States. Purists argue that the criminal law is the right weapon for defence against terrorists; pragmatists would differ.
Posted by JD Hull at 11:59 PM | Comments (4)
Sensitive Litigation Moment No. 7: The Holy Surprise of Rule 56(d), Fed. R. Civ. P.
Disruptive as Hell: The "early-in-case" Rule 56 motion (note well-dressed Brit GC after taking a bullet here).
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
Another Sensitive Litigation Moment. Trial lawyers know that Rule 56 of the Federal Rules of Civil Procedure, or summary judgment, gives a litigant an opportunity to win on its claims or dispose of the opponent's claims relatively quickly and without trial. Accompanied by sworn affidavits, and most often discovery responses, a Rule 56 motion tries to show that there is no real dispute about key facts and that the movant is entitled to judgment under the law.
If the trial court grants it, the movant wins on those claims.
But what if a summary judgment motion is brought against your client--suddenly and out of the blue--and the local rules (or local folkways and practices) of the district court don't give you much time to develop and prepare an opposition. After all, Rule 56 lets a party who has brought a claim file for summary judgment after 20 days, and defendants can file "at any time".
In contentious, high stakes litigation, a quick summary judgment motion right after the commencement of a lawsuit can be extraordinarily disruptive--no matter how it is resolved by the district court. It will fluster even the most battle-hardened-been-there-seen-that GC or in-house counsel.
And it's an expensive little sideshow, too.
Subdivision (d) of Rule 56, "When Facts Are Unavailable to the Nonmovant", provides a safeguard against premature grants of SJ. Lots of good lawyers seem either to not know about--or to not use--subdivision (d) of Rule 56.
In short, you file your own motion and affidavit--there are weighty sanctions if you misuse the rule, so be careful--stating affidavits by persons with knowledge needed to oppose the motion are "not available", and stating why.
The district court can then (1) deny the request and make you oppose the motion, (2) refuse to grant the motion for SJ OR do what you really want it to do: (3) grant a continuance so that you can develop facts and, better yet, take depositions or conduct other discovery.
Granted, it's a delay-oriented rule, but if used correctly, Rule 56(d) can give you the breathing room and time you need to develop the client's case, and avoid the granting of summary judgment against it.
Note: An ATL reader caught our mistake in failing to recognize the renumbering and rewording of Rule 56(f) to 56(d) by the Advisory Committee. We appreciate it--and the correctly numbered subdivisions should now appear above. The crux of subdivision (f) was carried forward into (d), effective December 1, 2010. Thanks, sir. You are correct if pseudo-anonymous. But we were wrong.
Posted by JD Hull at 11:59 PM | Comments (2)
May 05, 2011
50 Years of Spaced Out.
Alan Shepard went up on May 5, 1961.
Posted by JD Hull at 11:59 PM | Comments (0)
Pantheon: Chrissie Hynde.
Midwest-bred rocker Hynde is said to have no fear of anything or anyone. One of the earliest inductees into our Pantheon.
Way to go Ohio: Firestone High School, Akron, Ohio, 1969.
Posted by JD Hull at 11:59 PM | Comments (0)
May 04, 2011
Cafe de la Mairie, Amour Propre--and Badaude.
If like us you love, and are always missing, Paris, you must too love its waiters--and their "outsize helping of amour propre". Via The Paris Blog do see the short but classic "9 AM, Cafe de la Mairie". It is by Badaude, a writer and artist with a fine window to Paris. And can she draw.
(By Badaude)
Posted by JD Hull at 11:59 PM | Comments (0)
May 02, 2011
Can-Do Catharsis in America: Bin Laden Killed on Obama Order.
Lafayette Park Flash Mob May 2, 2011. Photo: AP/Manuel Balce Ceneta
Posted by JD Hull at 11:17 PM | Comments (0)
May 01, 2011
Redux - Scott Greenfield: Real Rebel. Real Lawyer. Rare Straight-Up Sane.
(From a May 23, 2009 post, "Slackoisie-Fest: Fighting Loserism")
Ben Franklin, Tom Edison and Clarence Darrow root for Greenfield in Doers' Heaven.
--Holden Oliver (2009)
Listen, you creeps, you screwheads. Here is a man who would not take it anymore. A man who stood up against the scum, the filth and the crap. Here is a man who stood up.
--Travis Bickle, Taxi Driver (1976)
Fighting Wankers at Work. Scott Greenfield at Simple Justice rails, too often alone, against The Slackoisie: our Cliff Notes kids, workplace weenies, and new Maynard G. Krebses with a straight-faced argument on the right to be barely adequate at work. This is Gen-Y. You were born after 1978. You demand--with no real bargaining power--that employers buy into "work-life balance". You want a family-life "lifestyle". You call yourself Super-Daddy. Or Concerned Humanist. Or Non-Selfish Sensitive New Age Person. You want The Life--but without The Responsibility.
Some trendy if wimpy U.S. employers are increasingly buying into this. But sometimes "different" is plain bad. Different-ness need not always be accommodated, coddled or worshiped.
Enemy of Looters: Scott Greenfield (photo taken pre-industrial accident)
The truth: you're lazier and more incompetent than WAC?'s old Southern Ohio whiskey-swilling doped-up hound dog "Craps".
Since 1997 at Hull McGuire--the firm for which I co-write this blog, and clerked for last summer--such workers have been referred to openly as the Slackoisie, the 'Slack and (on bad days) "Looters". The firm was alone in its dismay for many years. Then other firms in the U.S. experienced the same problem. No one, it seemed, wanted to talk about it--even as higher-end clients worried increasingly about getting real value from their planners and problem solvers.
But, in Scott Greenfield, last year we finally found a talented and spirited ally. Here is a man who would not take it anymore. He is hero to the quiet legions of builders, planners, inventors and yeoman lawyers who know what problem-solving takes, and what sacrifices are demanded to get things done for clients and customers.
Ben Franklin, Tom Edison and Clarence Darrow root for Greenfield in Doers' Heaven. The Immortals do watch us. They hope that America's shameful, and ill-timed, work-life balance charade will soon die the vampire's death it deserves. Enough is enough, they think; this is not what we Yanks are all about. Get "balance" on your own time, in your own way, or through a less demanding career.
Young lawyers need to learn the tough and hard-learned art of practicing law. Older lawyers need to work hard at teaching them, and serving valued clients.
We serve. Clients and customers are "always"--and they come first. See Scott's "First, You Have To Get The Job". About 30 comments so far.
Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (4)
Wankfest or Not, It's World History, Jack.
Photo: Clarence House.
Posted by JD Hull at 12:59 AM | Comments (0)