Wednesday, April 26, 2006

On (salty) language

Cussing is big news these days. There have been a rash of articles lately about how coarse language is creeping into everyday conversation. There was a column in the Wall Street Journal a couple of days ago that specifically addressed profanity in the blogosphere, offering a bleak prediction for the continued decline of linguistic standards.

This morning, the comic strip Prickly City got into the act. In today's episode, Carmen is complaining to the coyote pup, Winslow, that people are cussing more than ever. "Used to be," she says, with a disgusted look on her face, "you'd get your mouth washed out soap.... But not anymore." She sighs and walks away. In the last panel, now standing alone, Winslow delivers the punchline: "#☆@*&%! Lawyers!!!"

The punchline got me thinking about how lawyers use language, including profanity.

There was a time when a grasp of various Latin phrases was a sine quo non for a lawyer: res ipsa loquitur, quo warranto, de minimus non curat lex, et cetera....

(How's that for a transition?)

The use of handy Latin phrases has declined over the years although (perhaps) some lawyers may trot them out on occasion in an effort to dazzle a client or impress a colleague. It may even have worked once or twice.

It also helps a lawyer to have a few Yiddish words or phrases at one's disposal -- the motion in gelt (when a lawyer seeks to withdraw from a case because the client has stopped paying for services rendered) or the writ of rachmones (when the lawyer who's messed up begs for the court's mercy for the client's sake). And then there are words we use that we forget are Yiddish -- mishegas, nosh, cockamammie, mensch, schtick, bupkis....

But we sometimes resort to profanity as well. Not in correspondence (not yet, anyway) but sometimes over the phone during an especially testy negotiation, or outside (young lawyers, remember: outside) the courtroom in order to let opposing counsel know how little you appreciated being "sandbagged" or "back-doored" et cetera.

(Back to Latin, where it's safe!)

Anyway, I've tried to use profanity sparingly over the years, not because I'm such a prude, but because overuse diminishes the power of those words.

Swear words are words that are supposed to shock. George Carlin's "Seven Dirty Words" routine was genuinely shocking when it first came out. Now it's transcribed on the Internet (no, I'm not providing that link). Lenny Bruce got arrested for using words that little children now spew indiscriminately on every playground in the land.

Cuss words that are overused lose their power. The example that I remember from high school is "fie." (And, no, the term was not in everyday use when I was in high school; I learned this in a Shakespeare class.) If all of George Carlin's Seven Dirty Words lose their power, how then will we express truly strong emotions?

Let me illustrate with a couple of stories. One day, a few years back, I was on the phone with a particularly obnoxious attorney. I don't remember who it was; I don't even remember the case in question. What I remember is that I laid down a carpet of f-bombs and soon thereafter terminated the connection.

Gene Sullivan ran into my office moments later. Gene was working with me then; he remains, technically, "of counsel" to me because I'm holding open a chair for him pending his return from a temporary Pentagon assignment. Of course, that's been a couple of years now -- and Gene recently told me he's been recalled to active duty as a Captain in the U.S. Navy so I don't know when he's coming back.

But that's not the point. The point is that, as a Navy veteran, as a Naval Flight Officer who's made hundreds, if not thousands of carrier landings in his day (one more takeoff than landing, he'd tell you), Gene is neither offended nor bruised by a string of undeleted expletives.

But he responded on the double to my tirade -- checking to see if I was OK -- because when I used those words, at the volume at which I used them, the words retained some 'shock and awe' value. This would be a much better story if I could remember that the attorney on the other side modified his behavior after this outburst, but that's life, I guess.

So we try another example: Some years ago, when I was at my old firm, I took a call from opposing counsel in the office manager's glass-walled office on the first floor of our building. There were secretarial stations facing either wall of the large room outside that office. I had just come back from court or something when the call came in, and I had no idea where the conversation would go.

Well, the conversation went south in a big hurry and in a big way: Within a very short time, I called him a bunch of vile names, he called me a bunch of vile names and we both slammed down the phone in about the same instant. I vividly recall seeing that every face on that first floor was goggle-eyed and open-mouthed and turned toward the office manager's desk, where I stood, embarrassed at my complete loss of temper. I do remember this case, and the identity of the attorney -- and we've always gotten on well since we cleared the air between us in this unlikely fashion.

So at least in the second illustration, the targeted use of profanity had an ultimately positive effect. Therefore, I conclude that strong language may be kept, with Latin and Yiddish phrases, in the attorney's tool box -- but only in a separate, insulated container.

Monday, April 24, 2006

This is a relief -- ALJ OK's web surfing at work

From a story published earlier this afternoon by the Chicago Tribune:
NEW YORK -- Surfing the Web at work is equivalent to reading a newspaper or talking on the phone, an administrative law judge said in recommending the lightest possible punishment for a city worker accused of disregarding warnings to stay off the Internet.

The case involved Toquir Choudhri, a 14-year veteran of the Department of Education, whose office computer had been used to visit news and travel Web sites.

"It should be observed that the Internet has become the modern equivalent of a telephone or a daily newspaper, providing a combination of communication and information that most employees use as frequently in their personal lives as for their work," Administrative Law Judge John Spooner said in recommending only a reprimand for Choudhri.

The judge noted that city agencies allow workers to make personal calls if it doesn't interfere with their work performance.

Choudhri's lawyer, Martin Druyan, called the ruling "very reasonable."

Don't you feel relieved? You don't mean to tell me you're looking at this on your own time, are you?

Friday, April 21, 2006

How not to take a deposition

This was a topic brought up on the ISBA listserv this week (with a link to this You Tube video offered by T.J. Thurston).

I can see where non-lawyers might find this clip very funny. At the risk of offending 10-year olds everywhere, the clip shows well-educated professional people acting like contentious 10-year olds on the playground. I found it all too familiar, if in an exaggerated way -- I've never actually been at a deposition that came as close to fisticuffs as this one apparently did. But, then, everything is bigger in Texas, isn't it?

The clip initially reinforced my long standing prejudice against video depositions. The video camera is light a harsh, bright light, leaving no shadows in which to hide. And that question that seemed so articulate and precise in memory, turns out, on tape, to be halting, forced, and stilted. At least court reporters will sometimes clean up my "um's" and "er's" leaving a transcript that is at least arguably consistent with optimistic recollection.

But then I thought of one deposition in which I -- admittedly -- failed to live up to the highest standards of civility. Opposing counsel had really gotten under my skin. I don't remember why. I don't remember the case. I do remember, quite clearly, the other attorney dictating in a flat monotone, enunciating very clearly so that the court reporter could not miss a single syllable. I don't remember the exact words, but the monologue went something like this: "Mr. Leyhane is raising his voice at me... I am in fear for my safety... now Mr. Leyhane is clenching and unclenching his fists, he is standing up out of his chair -- I am concerned that he is about to hit me and I am in fear for my safety...."

This only made me madder. Obviously, I did not hit the man -- anyone who knows me would confirm that I am a practicing coward and unlikely to take a swing at anyone. I don't know how the situation resolved -- but we must have got through it somehow.

In that one instance, a video record might have been helpful.

But "how not to take a deposition" involves more than just incivility. I recall a deposition a long time ago, in a construction subro case. It may have actually been my first solo effort. The witness was an architect and I asked a question that seemed alright to me, at the time. I have no idea today what my question actually was.

The witness responded, however, by asking to go off the record.

Well, I wasn't going to take that; no, sir, I was going to be aggressive and bore on ahead (bore probably being a particularly apt word choice here). So I refused to go off the record.

"Fine," the witness said, "we'll stay on the record. That was the singularly most stupid and asinine question I have ever heard in my entire life."

Of course, I'm sure I've asked lots of dumber questions in the 25 or so years since. There's always room for improvement....

Monday, April 03, 2006

"Global warming" may be real, but not artificially caused

A story in Sunday's Sun-Times reports these poll findings:
●53 percent think warming is caused more by human activity than by normal Earth cycles.

●70 percent think the effects of global warming can be reduced.

●59 percent think their efforts as individuals can make a difference in global warming.

●At least 90 percent are willing to take the following steps to reduce greenhouse gas emissions: recycle, turn thermostats down in winter by 2 degrees, caulk around windows, and combine driving trips when running errands.

●Between 80 percent and 90 percent are willing to take these energy-saving actions: wash clothes in cold water, turn down water heater temperature, buy energy-efficient light bulbs, buy energy-efficient appliances, and buy energy-efficient cars.

●70 percent are willing to drive less, and walk, bike, car pool or take mass transit.
I applaud the willingness of so many to take practical energy-saving actions. But none of this will necessarily stop "global warming."

The idea that the planet is warming because of human activity -- industrial and auto pollution, deforestation, etc. -- and that curtailing these activities or ceasing particular activities altogether (let's all go back to caves and live off the land!) will somehow stop this "global warming" strikes me as hubristic, and potentially dangerous, nonsense.

The History Channel has recently been running a program entitled Little Ice Age: Big Chill, about a 550 year global cold snap that changed European history -- and prompted the beginning of American history as we now know it.

The ad copy for the DVD of the program states:
Scientists call it the Little Ice Age--but its impact was anything but small. From 1300 to 1850, a period of cataclysmic cold caused havoc. It froze Viking colonists in Greenland, accelerated the Black Death in Europe, decimated the Spanish Armada, and helped trigger the French Revolution. The Little Ice Age reshaped the world in ways that now seem the stuff of fantasy--New York Harbor froze and people walked from Manhattan to Staten Island, Eskimos sailed kayaks as far south as Scotland, and "the year without a summer" saw two feet of snow fell on New England one June and July.
Those who fret about global warming presumably do not recall the fate of the Viking colonists of Greenland.

During the warm centuries that preceded the Little Ice Age, Vikings journeyed to Greenland, Iceland, and to the shores of North America. Calling the island "Greenland" was always a bit of hyperbole on the part of its Viking promoters, but the early colonists there did have grazing land for sheep and were able to maintain flocks.

The Little Ice Age changed this -- and the Vikings ultimately starved.

Now Greenland is apparently warming again -- but is it yet as warm as it was before the Little Ice Age? And why was it so warm then? If that episode of "global warming" was not caused by medieval knights, then why is mankind responsible for the current episode?

The world changes. It has changed before. It will change again. This is part of the natural order of things. Humankind must have some influence, particularly in localized areas -- urban heat islands, for example -- but what is it about the human ego that makes some people feel as if the human race is responsible for everything, good or bad, that happens in, or to, the world?

Climate change should certainly be studied. We should study how best to adapt to climate changes that may be coming. We should try and figure out how human activity retards or accelerates climate change (my working hypothesis is that, in different areas, human activity does both). But neither good science nor good public policy can be constructed on an assumption that "global warming" is caused by human activity.