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March 30, 2024
Charlotte Rampling: Still smoldering in three languages.
Great gifts, persistence and drive are hard to beat. If you don't know who Charlotte Rampling is, do find out.
Ah, Charlotte. You made up for many of the rest of us.
Posted by Holden Oliver (Kitzbühel Desk) at 11:59 PM | Comments (0)
We need Chuck Norris.
Just checked my news curator-aggregator (Flipboard) and every article says everything everywhere is all fucked up. We need Chuck Norris right now.
Posted by JD Hull at 11:41 AM | Comments (0)
March 29, 2024
Jack London on Writing
You can’t wait for inspiration; you have to go after it with a club.
— Jack London
Posted by JD Hull at 05:57 PM | Comments (0)
March 28, 2024
A Federal Discovery Rule Sleeper You Can Use: Rule 27, Fed. R. Civ. P.
You hosin' us, Mr. Hull?
Rule 27 of the U.S. Federal Rules of Civil Procedure is "Depositions to Perpetuate Testimony". It's not invoked that often. Subdivision (a) covers "Before an Action Is Filed":
(1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:
(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;
(B) the subject matter of the expected action and the petitioner's interest;
(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;
(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and
(E) the name, address, and expected substance of the testimony of each deponent.
(2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies.
(3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.
(4) Using the Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.
And subdivision (c), equally as vague in some respects (but see the Committee Notes), states:
(c) Perpetuation by an Action. This rule does not limit a court's power to entertain an action to perpetuate testimony.
Again, Rule 27--and its many state counterparts--is not used that much. In non-federal cases, most states have some versions of Rule 27, with different case law on how you can take discovery before an action has been commenced. Valid reasons might be to preserve testimony which might "get away", e.g., a dying or homeless witness or a witness about to skip town with the money. Or (less commonly) to do a limited pre-suit evaluation of the merits. The state versions are worded very similarly to the federal rule; however, the case law on what you can actually do with the state counterparts of the rule vary widely from state to state. It's a bit vague, but good lawyers can use that to their advantage for clients when they see it in statutes, regulations and procedural rules.
One common concern with the rule: It will be used to harass and intimidate (read: "mess with people") rather than to perpetuate or preserve. Unfortunately, it is used that way. And some judges just don't at first like what they don't see that much. In 2010, one very good if elected North Carolina state judge in beautiful Durham, N.C., initially was increasingly aggravated that some godless bow-tied out-of-state city lawyer who tried to pick up his sultry 27-year-old law clerk named Zoey right in front of him was introducing him for the first time to the state's Rule 27. Judge Quaalude didn't know much about it. But no one seems to.
So you teach and sell His Honor or Her Honor. You're an officer of the court, right?
But go easy, check the cases on it--for obvious reasons, there are not many--and think it through. Local lawyers may not be much help; understandably, they often have rote, unthinking habits about their own procedural rules. Hey, we all do that--and we are missing a lot. (See Rule 56(d) for example.) Rule 27, done right, saves time and money. Downside: you might have to sell it to, or be creative with, the local state or federal judiciary. Or refresh the collective memory. Boomers do forget stuff.
(Image: D.E.K. Enterprises/Henry Gibson as Judge Brown, Boston Legal.)
Posted by JD Hull at 12:22 AM | Comments (0)
March 27, 2024
Holy Surprises & Saving Graces: Fed. R. Civ. P. Rule 56(d).
Early-in-the-case Rule 56 motion. Note well-dressed Brit General Counsel taking a bullet.
Rule 56
(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.
Trial lawyers, in-house counsel and law students 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 early in the case and the local rules 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".
It happens pretty frequently. Both plaintiffs and defendants make the motion early on. Defendants do it the most. No matter who moves early, or how it is eventually resolved by the district court, it's very disruptive. It will fluster even the most battle-hardened-been-there-seen-that GC or in-house counsel. It's an expensive little sideshow, too. Everyone in the responding camp hates life for a while.
Subdivision (d) of Rule 56, "When Facts Are Unavailable to the Nonmovant", provides a safeguard against premature grants of summary judgment. Some 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. (More senior lawyers may know this provision as Rule 56(f); it was re-lettered in the 2010 amendments to the federal rules.)
The federal district court can then (1) deny the request and make you oppose the motion, (2) refuse to grant the motion 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 rule that delays, but if used correctly, Rule 56(d) can give you the breathing room and time you need to develop the client's case--not to mention avoiding the granting of summary judgment.
Posted by JD Hull at 11:59 PM | Comments (0)
Mary Harris Jones, "Grandmother of All Agitators"
Big ones. School teacher, seamstress, businesswoman, community organizer, Chicago girl and Ireland-born, Mary Harris "Mother Jones" (1837-1930) had big ones. What a resume, most of it built after she turned 50.
Denounced on the U.S. Senate floor as the "grandmother of all agitators."
Posted by JD Hull at 11:02 PM | Comments (0)
St. Genevieve saves us all.
“I know it, I see it. The Huns will not come.”
Sainte Genevieve (422-512) saved Parisians from the Huns, the legend goes, in 451. People had started to flee Paris in anticipation of the invasion led by Attila--but stopped when she told them she had a vision that the Huns would not enter Paris. “Get down on your knees and pray! I know it, I see it. The Huns will not come.“ She became the city's patron saint. In 1928, a grateful Paris erected a statue to her on the Pont de la Tournelle (now about 400 years old). Genevieve is facing east, the direction from which the Huns approached. She is also said to have converted Clovis, king of the pagan Franks, to Christianity. If you walk from the Right Bank to the Left Bank near the Ile Saint Louis, you walk right under her, with Notre Dame on your right.
Posted by JD Hull at 12:55 PM | Comments (0)
March 25, 2024
Storytelling
Don't tell me the moon is shining; show me the glint of light on broken glass.
--Anton Chekhov (1860-1904)
Posted by JD Hull at 11:59 PM | Comments (0)
Dylan Thomas reading Fern Hill
Dylan Thomas (d. 1953) reads Fern Hill: "Now as I was young and easy under the apple boughs...." His voice--those Welsh pipes--was also one of his many gifts. A sad early death in Manhattan/So far away from his heart.
Posted by JD Hull at 12:59 AM | Comments (0)
March 24, 2024
I'm OK - You're a Narcissist: “Narcissism” is the Newest Cooties
We all like to feel special, unique and, at times, superior. It doesn't mean we are insular, evil or bonkers. It doesn't mean you need to meet with your shrink Dr. Quaalude four rather two times a week. It means we are flawed, insecure, competitive and desperate for the Universe to acknowledge, and somehow validate, each one of us.
Narcissist. Narcissism. Narcissistic. These have been hot labels in the past few years. Lots of articles and pop psychology pieces in which writers bandy these terms around. There's been some name-calling, too. Boomers and Millennials are called narcissistic. So are certain bosses, public figures, artists, entertainers.
To name a few famous people who've been so accused: Pablo Picasso, Eva Peron, Warren Beatty, Sharon Stone, Charlie Chaplin, Margaret Thatcher, Christian Barnard, Donald Trump and William Shatner. Even Elvis. Then there are legions of more obscure folks who we see as uber-selfish, unfeeling, too full of confidence, grandiose. And a few who just make us feel uncomfortable or we just don't like.
What going on here? Is Narcissism the new Cooties, the dreaded but fictional disease you got from opposite sex classmates on the playground? If it is, let's find some other way to trash people. Let's trade in the entire narcissism lexicon for something that's fairer and we can all understand.
Because we are in over our heads, folks.
In conversation and writing, lots of non-experts--I am not an expert on this, are you?--employ the narcissism lexicon glibly and confidently to describe all kinds of bad behavior as if everyone knows exactly what they mean. One problem with this is that nearly everyone who does it (like Tony Blair's talented friend in the article linked to below) seems to have no idea what they're talking about. Even worse, people who use the terminology often lump everyone with narcissistic traits together without making distinctions between "healthy" narcissists, garden variety egotists and deeply malfunctioning humans.
Not making those distinctions is not just silly, sad, ignorant and irresponsible. Given the powerful stigma narcissism carries with some people who are just as clueless, it's a dangerous assessment.
Retired Alpha male pol having fun. Narcissist? (Adrian Wyld/AP)
You may think, as I do, that the American Psychiatric Association (APA) and other mental health authorities--which at this point have made almost every activity, eccentricity and wondrous human foible a "disorder" or condition which requires, or will soon require, professional treatment--went slightly batshit itself years ago. My favorite is the relatively recent addition to the Diagnostic and Statistical Manual of Mental Disorders (DSM) of caffeinism. There are five (5) types of caffeinism. One is Caffeine Withdrawal, which for a few years now has been a mental disorder. I expect to see jetlag very soon.
However, the APA and these other bodies continue to have the power to flag and define sickness and disorders. The power to define mental illness in our society is the power to suggest what is moral, immoral, good, bad, acceptable, unacceptable. With respect to medical expertise especially, we are at heart compliant and conformist. We remain happy to let others do the thinking for us.
And narcissists in the public mind are very bad. In addition to the usual suspects noted above, some of the worst villains and head cases in human history make the famous/infamous people list: Stalin, Hitler, Lee Harvey Oswald, Ted Bundy, Joseph Mengele, O.J. Simpson, Jim Jones, Ike Turner and, last but not least, Simon Cowell.
Although I will never be an expert on anything scientific, I did do some homework. Apparently, we should think of narcissists in three groups. The first group includes each human being who has ever lived. We all have a touch of narcissism--and we need it to survive. It's healthy.
The second group is actual narcissists. These are people who score high on tests based on traits (symptoms) listed in the DSM. Think politicians, many execs and entrepreneurs, 1980s-era bond traders, actors, writers, surgeons, go-getters, workaholics, a good chunk of the freshman class at Dartmouth College, all AUSAs and nearly every effective trial lawyer you will ever meet. You get the idea.*
The third group is comprised of those with a clinical diagnosis of Narcissistic Personality Disorder (NPD). These are the few, the miserable, the hardcore. See my listing in the paragraph above. It's the same kind of folks--but now, according to the psychiatric community, they're stuck in the wild blue yonder, and can't get out. Their selfishness and self-absorption prevent them from ever having a meaningful relationship with another human being.
The traits for this group: (1) expectation to be recognized as superior and special, without superior accomplishments, (2) expectation of constant attention, admiration and positive reinforcement from others, (3) envy of others and believes others envy him/her, (4) preoccupation with thoughts and fantasies of great success, enormous attractiveness, power, intelligence, (4) lacks the ability to empathize with the feelings or desires of others, (5) arrogant in attitudes and behavior and (6) expectation of special treatment that are unrealistic.
The problem? On any given day, the above traits/symptoms for NPD describe most of your "enemies", and certainly every one of the insane, miserable and unreasonable opposing counsel you are putting up with. It's the candidate you are running against. It's the woman who just dumped you.
In my reading, lack of empathy stands out as a key trait shared by at least those in the second and third groups. To be honest, in my life I've met no one with zero or little empathy. However, lots of people I know seem to have trouble, at least initially, of "feeling the pain" of others. Most of them are men. I doubt that anyone who has read this far considers empathy to be a male trait. It's clearly not. So are most men narcissists?
The Narcissus, Karl Bryullov, Russian, 1819
Other traits listed in the literature were success-orientation, a sense of superiority, and seeing oneself as unique and/or special. However, we regularly see these three in people we know and love, and we still think of them as flawed but healthy. To be fair, such traits are shared by a good chunk of the student body at lots of highly selective colleges, laws schools and medical schools.
Above I used Dartmouth as an example--and to tease a couple of good friends who went there--but there are thirty or so colleges and universities in America alone which seem to hatch grads which regard themselves as "special" if not genuinely unique or elite. These people are not narcissists.
For example, have you ever talked to a Boomer-era Oberlin graduate about being an Obie? She's very glad you asked. Her eyes will light up as she thoughtfully lights up a Camel non-filter, and she may speak in hushed tones about taking off a semester to work in California with Cesar Chavez, Delores Huerta and the National Farm Worker Association, or with a SNCC voter registration project in Mississippi. Even if she is grateful or feels lucky to have taken part in these parts of the civil rights movement, often with other Oberlin people, the Obie indeed does see herself as special and unique and even somehow superior for her participation. It's a point of pride. But she is not a narcissist.
I count as friends four Rhodes scholars, two Marshall scholars and a few former SCOTUS clerks. While they are all very different from one another, I am very sure that not one of them thinks of himself or herself as just another face in the crowd. They've stretched, worked their asses off and quietly think of themselves as special indeed. A few of them might be considered overly-opinionated and difficult. But they are not narcissists.
We all like to feel special, unique and at times superior. It doesn't mean we are insular, evil or bonkers. It doesn't mean you to meet with Dr. Quaalude four rather two times a week. It means we are flawed, insecure, competitive and desperate for the Universe to acknowledge, and somehow validate, each one of us
The inability to gracefully accept criticism is another narcissism trait you read about. But how many of us are graceful and happy when we are taken down a notch or two?
Again, with each of these traits, it's a matter of degree. See the DSM-IV-TR (or the newer DSM-V) and traits from other sources to see what they are, and see how you and your friends rate.
True story: About ten years ago, I needed to cross-examine an ousted executive who sued our client and had put his mental health in issue in the case. This was new territory for us--so we bought a couple of DSM-IVs. That summer, three young litigators and a litigation law clerk in our Pittsburgh office got a hold of one of the DSMs. For fun, they went through each of the NPD symptoms. Three of the employees were amused--for lack of a better word--that they seemed to have all or most of the symptoms. One had almost none, even though she seemed to actually want to have them. Despite everyone's joking around about the self-diagnosis exercise, the non-narcissist, an ambitious young woman, was disappointed by her "low" score and reportedly envious of her co-workers who, oddly, "aspired" to some level of narcissism. No, I can't explain this. The hubris of uber-ambitious youth, maybe. Me? Yes, I took their test, too. To the amazement, or disappointment, of several people in and out of the office, I had a "low" score. Also, I got high marks for empathy. But some folks still think I cheated.
This week, certainly, narcissism in making the news again. Today The Independent, the British national morning paper, reports that a famous British novelist and longtime friend of former Prime Minister Tony Blair is now calling Blair a "narcissist" with a "messiah complex" who has abandoned Britain to make money and "hang out with a lot of rich people in America" (other narcissists?). On the quality of life side of things, those of you with serious narcissists in your life (or office) can read "How to Make the Narcissist in Your Life a Little Nicer", appearing yesterday in The Atlantic. It's about "compassion training" for the working narcissist.
One last question. Why are there so few articles over the years addressed to narcissists themselves? Can they not be saved? Or is it that we all just need a few blustery folks to look down on?
*I'm 100% serious about this list--as humorous as the list might be. Moreover, these are the kinds of people I tend to like, admire and hang out with. They challenge me, stretch me and make me feel alive.
Original post: June 6, 2014
Posted by JD Hull at 11:59 PM | Comments (1)