By Mark Esposito, Guest Blogger
When I was a young lawyer twenty-five years ago or so, I remember a particularly enlightening client meeting. A 30ish woman had scheduled an appointment to discuss a sexual harassment case against a prominent lawyer in town. Being the new guy at the firm but with some considerable jury trial experience even then, I was asked to sit in while our senior partner met with the client. The client arrived and began a convincing narrative about a sexually charged work place replete with provocative innuendo, being subjected to daily dirty jokes, some pass-by groping in the hallway and even arriving at the office in the morning with an open Penthouse magazine on her desk. Despite complaints to the other partners with nothing of substance being done, she claimed, the client had taken all she could and resigned citing this treatment as the reason. Since the claimed harassment involved a superior and a text-book hostile work environment seemed evident, we were seriously considering taking the case despite what we knew would be a no-holds barred defense.
When we came to the part of the meeting where we asked about corroborating evidence in the form of witnesses or documents confirming her version of events, the client’s demeanor changed from cool professionalism to anger. “Don’t you believe me?”, she shot back like a dagger. “No, it wasn’t that,” our senior guy said. “We just need to know what kind of case we can present.” Wrong answer! ” I don’t want a lawyer who doesn’t believe me. I know what happened and all you have to do is subpoena every staff person there and they’ll tell the truth.” I recall thinking at this moment about all the clients I represented and their look of absolute betrayal as witness after witness “couldn’t remember” this event or that one in deference to preserving their job status. I didn’t say anything, but the senior lawyer did. “Look,” he said quite understandingly I thought, “This is a bad situation for you but he’s a prominent person in the community. His firm is on tv doing all kinds of charitable work around the holidays. He has represented thousands of people in the area, is well-connected politically, and has tons of financial resources to throw at you. We need to know how strong your evidence is going to be.” That broke the camel’s back. “You’re in cahoots with him aren’t you?,” spat the client. “I was told you would take the case because I was in the right, but now all you want to do is talk me out of it by telling me how good his case is going to be.”
“No, not at all,” came the reply as the client was gathering up her papers to make a fast exit. “I not interested in you representing me ,” came the terse rejoinder and “I’m thinking about reporting you to the bar for being in league [with her tormentor].” With that she turned on her heel and strode out the door. A little sheepish, I asked “Should I go and try to get her to come back? It looks like a winnable case to me, if we can get some confirmation of her story,” I asked. “No,” came the seasoned reply. “She’s a chip person, and juries can smell that a mile away.” I went back to my desk thinking here was an intelligent person with a potential case who can’t step away from the emotion of the moment to aid even those who want to help her. It’s an emotional blindness we all suffer from.
I thought about that while reading about the dust-up between Professor Leong and her Moriarty, dybbuk, as well as the unseemly sandbox dispute between Professors Campos and Leiter. Let me know how these statements strikes you, the blog jury. First from Professor Leong’s website, Feminist Law Professors:
Some argue that racial and gender harassment are part and parcel of participation in online discourse. As one white man commented on my prior post: “Welcome to the jungle . . . . If you want to have a voice . . . just do what we have been doing for over a decade and laugh it off.” (In context, “we” meant “white men.”) Of course, it’s easy to talk about “laughing it off” when, because of your status as a white man, you’re virtually never the target of identity-based harassment that deploys historically subordinate or marginalized status as a silencing tool.
My obvious question is how does Leong know that her poster is a “white man”? Does he say so? Did she ask? Did she track him down and call his workplace to find out? Or is she just assuming and making the same stereotypical argument of which she complains herself? Are her assumptions about white men any more venomous than the assumptions about a “white man’s” reaction to her identity? My reaction, which I think some will share, is that Professor Leong is a “chip person.” That is she views every criticism through the lens of her own personal battle and doesn’t understand how the same statement would be viewed by an independent person freed from the emotional involvement of her circumstances.
And for Exhibit A consider this screen shot of the exchange between Leong and dybbuk which she entitles “Luau Train”:
Leong’s take on the first comment: “Rather than explaining why (for example) he thinks that the racial capitalism framework is analytically flawed, the first commenter disparages my Native Hawaiian background with a reference to the “luau train.” He then attempts to undermine my intellectual contribution to an academic conference by claiming that the reason for my presence is to serve as an object of sexualized attention for a presumed heterosexual male audience.”
Professor Leong in word and deed (naming the image) obviously considers this comment by dybbuk to be a slur aimed at her heritage, but there is also a more benign interpretation that dybbuk is merely commenting about the location of her speech and not her heritage. Why does an educated person fail to consider the view of things than a simpleton like myself would have to concede could also be true? For his part, dybbuk claims he has no knowledge of Leong’s Hawaiian roots and was referring to the sumptuous spreads some speakers get at these seminars that never seem to be scheduled in Dubuque in the winter time.
Now consider the case of the dueling professors. Prof. Campos sends the following email to his apparent long-time intellectual adversary:
From: Paul F Campos [mailto:paul.campos@Colorado.EDU]
Sent: Tuesday, December 31, 2013 11:03 AM
To: Leiter, Brian
Subject: Dybbuk
Brian,
I have been asked by somebody who has passed on (unsolicited) some potentially very embarrassing personal information about you to me, regarding your activities in cyberspace and some related goings-on in the real world, to make this information public, should you choose to “out” Dybbuk.
Paul
Professor Leiter upon receipt of the email launches a broadside attack lambasting Campos for, what he says, is “resorting to blackmail.” He then adds the following dittie that struck my logistician’s eye:
I am told by a colleague who teaches criminal law that this threat is blackmail (criminal “intimidation” as we call it in Illinois, or “extortion” or “criminal coercion” as it is in many other jurisdictions). I have no idea what fabrications Campos would produce this time, but there is nothing truthful he could post, and he knows it. (Remarkably, this is also not the first time Campos has tried to coerce another law professor with threats.)
You guessed it the classic logical fallacies of an ad hominem attack (Campos is bad because he’s done bad before and he lies ergo he is not to be believed) and a borderline appeal to authority (My colleague teaches criminal law hence he must be knowledgeable in charging decisions by local prosecutors. Maybe he does, but Leiter never tells us.) by an unknown source.
For his part, Professor Campos says his email was mere warning and the twisted grammar aside, it’s a reasonable interpretation especially if Lieter has already “outed” dybbuk thus making any such disclosure of “embarrassing personal information” an empty threat since the trigger on the disclosure has already been pulled.
Leiter comes off as prickly and seeking to find the worst possible interpretation of Campos’ actions. I don’t think a fair-minded person would make the same mistake in the courtroom or that other bastion of democracy, the court of public opinion. So why lose your case in both courts simply because you need to “strike back” by questioning anyone and anything that contradicts, in the slightest way, your interpretation of other people’s motives.
Ultimately these two episodes prove to me why litigants need to arrive at court with everything except that chip. It’s unattractive and lends an air of holy crusade to a civil dispute that the resolver of fact will assuredly sniff out. Juries have their limitations but divining motivation isn’t one of them. Oh, they can be mislead and fooled but they never miss a chip the size of a 2×4.
As the pre-eminent blue ribbon jury on the blog-o-sphere what say you about these two alleged wrongs? Chip people or victims — or both?
~Mark Esposito, Guest Blogger
Dr. No JD,
Could it be because sexism is still easier to cloak umder the guise of free speech than is racism in today’s world?
I’m a bit curious about part of the claim that Leong is a “chip person.” (No question on the Leiter point). To my mind, the August 12 comment you highlight is unquestionably sexist and ambiguously racist. As you quote her response, she addresses both of these issues. If the comment included only the ambiguously racist statement, I’d be inclined to agree with you that her response may primarily tell us something about her own “personal battle.” But it didn’t. At the point that the commentor plainly deploys Leong’s womanhood as a basis for criticizing her intellect and right to participate in scholarly endeavors, I don’t see why she–or frankly anyone–should give him the benefit of the doubt. To me, it doesn’t matter whether the comment is also racist, the sexism it exhibits is itself worthy of condemnation. Why do you view the sexism as an afterthought that doesn’t justify a response?
Dybbuk’s snark re the Luau train seemed to rather obviously flow from his comment about the conference location.
He didn’t need to follow with his observation about her physical appearance, but it was honest, and like the most honest comedy, rooted in reality. Men do this. So do Women.
No amount of preaching about “pragmatic approach[es] of reactive commodification” will change this. And I’d hate to live in the humorless world that would result if it did.
nice biography …….
It’s clear that Campos was employing a ruse. He wanted to let Leiter know he has potentially damaging info and if he needed to he would use it if Leiter took certain steps. He was the agent of the threat maker and possibly the threatener himself. What game playing! I suggest that most juries would see through this in a heartbeat.
The Compost guy has mis-spulled his last name.
nick:
Interesting what you alluded to in coaching kids. I had a kid a few years ago who absolutely hated playing. He was doing it for his parents who adored the game. They were originally from Pa. where it’s a right of passage. The kid did everything he could to make me angry so I’d yank him out of drills or not play him. Finally, I went to him alone and asked what was going on. He told me and I told him I’d think about what to do. The kid was smart so while he did everything the rest of the kids did I gave him some coaching responsibilities like keeping the play sheets, organizing the wrist bands (we did no huddle/number system) and helping me signal plays. He only played the minimum plays by choice but he really enjoyed the games. We let him wear a coaches cap instead of his helmet. The kid and parents thanked me after the season. I got a card from him a few months ago. He is studying to be a coach albeit of basketball but that’s fine with me. I think that’s a good example of a situation chip.
bfm:
I don’t necessarily disagree but I think its open to interpretation and Leiter doesn’t allow for that. And, as you say, Campos could have expressed a clearer meaning and explained with better syntax. However, I learned in the courtroom along time ago if something is said that could be interpreted innocently or aggressively, take the first choice. the jury will fix it if you’re wrong and you come off looking all the better as the gentlemen.
@randyjet
I agree it is poorly worded and (perhaps intentionally) ambiguous.
But my point is actually straight forward – but maybe just a questionable.
Compos, in his email, admits he has been asked to attack. He is the agent of attack. If he is communicating a warning, the only reasonable interpretation is that Compos will attack. That makes the warning also a threat.
Well that is one interpretation. Actually I think one could argue pretty much anything you darn well please about that email and have a chance of being right. But that is what makes it fun.
bfm I completely agree with your last post. It is good to see that great minds think alike.
bfm I think that you are right, but it is a very poorly worded post, and if an attack is intended, it is a very oblique one. So I think that there is a valid defense to saying it is a threat, and it is not a slam dunk for being clearly a threat. Your argument is that by failing to say he would NOT use the information or attack, he is guilty of making a threat. That is seeing a crime by omission, something which is far less clear for me.
@ Mark Esposito “I have been asked by somebody who has passed on (unsolicited) some potentially very embarrassing personal information about you to me, regarding your activities in cyberspace and some related goings-on in the real world, to make this information public, should you choose to “out” Dybbuk.”
I think there is at least one interpretation you have not considered. As I read the passage, it is Campos who has been asked to make the attack. If Compos has no intention to attack then there is no need to warn – the attack will not take place. But if Compos is communicating the possibility of an attack he is acknowledging that he may indeed attack. That would be a threat, not a warning.
I think Compos might have avoided much of this discussion if he had made his intention not to attack explicit and stated clearly he would not be a party to any harmful or harassing actions.
Compos did not do that. On the contrary he stated he had been asked to attack, he had the damaging information, and Leiter should be aware of those facts. Broken down to those simple facts, the communication is pretty clearly a threat.
Mespo:
that was a great post. Well done.
Quite refreshing actually.
I am intrigued by the level of incivility in the postings of the parties, slurry far beyond any notes I would expect to see in my white-collar profession (at least in the last 25 years or so). But it is a bit like watching an old TV show where mild mannered entymologist Professor Turley, chasing an interesting butterfly, falls into the quicksand. Be careful and make sure Lassie / Fury / Rin tin tin is in a position to go for help.
Moore’s chip law:
Dredd’s Blogging Law:
Well mespo, one of thee things that I like about you is you have a vast amount of real world experience, and not just in law, but coaching. You have the chops to be able to call out someone w/ a chip on their shoulder, that while obvious to objective observers, is a blind spot for some. I’ve dealt w/ “chippy” clients, witnesses, cops, students, athletes. parents, etc. You can get through that defense mechanism but it takes time and patience. But, the folks that are sometimes workable are those w/ a situational chip on their shoulder. Those who walk through life w/ that chip are best avoided if @ all possible.
Fifty years ago we needed a Feminism Blog. Of course fifty years ago we had not blogs. Now we need a Civility Blog.
What the Leong professor is doing, and has done, is create a niche for herself in her law school so as to get tenure and secure herself from criticism for not being a good teacher of law.
The law school can boast of having The Feminist Blog. Detractors of her ability to teach will be called out as sexist.
The other two characters do not seem to measure up to law professor qualification to me.
The bigger picture is that the law schools produce too many grads each year for the marketplace for new lawyers. There is no mechanism for paring down the law schools. There are ridiculous courses and seminars being taught. The third year should be clinical or “in court”. Law schools need to require more courses in con law. They need to take some of the cons out of the faculties.
It is composed of the same elements that the recent dust-up on this blog are composed of.
Reblogged this on Dead Citizen's Rights Society.
A whole bus load of chips!
This is one crazy situation that needs to stay in the sandbox….. No one will win… If they have such fair skin… Maybe they should stay out of this area….