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
Zipser:
A stopped watch isnt right twice a day, it is broken or needs winding. It cannot be right. If you were on a deset island, the watch would do you no good.
Just a pet peave of mine, sorry. 🙂
Zipser:
I read about 10 pages and am laughing so I saved it to the desk top and will finish when I am in need of channeling Jack K and a good laugh.
Was this a serious article? Are you sure it wasnt a parody? Its brilliant if its parody but if this is a serious article, I wonder why she is even teaching.
That is just my opinion and I only read 10 pages so maybe I am jumping to conclusions. But I did think it was funny.
Zipser, I move the court mark Exhibits 1, 2 and 3. It’s always a pleasure when someone else makes your case for you.
Nick’s musings about thin beautiful people sounds suspiciously like a chip on the shoulder.
Nick blew into the blog and helped to create a “shit storm.” He has been cautioned about his behavior on this blog on more than one occasion.
annieofwi –
I don’t want to characterise David, but you know, a stopped clock is right twice a day.
Read Leong’s paper – sorry, struggle through Leong’s paper.
Consider another point – by current standards your daughter is utterly unqualified to be a law professor – just because she went to the wrong law schools – and every year she practices law, every success she has in legal practice, will make her less qualified. Ask her.
Leong’s primary qualification was a Yale JD. Anything she added beyond a court clerkship made it harder to be a professor, bar silly publications. Substantive publications would actually hurt, experience beyond 1-3 years would hurt. This is a crazy world.
There are any number of groups of people who have advantages in our culture in addition to those who are thin and attractive: rich people, those who are politically connected, those who attended the “right schools” and/or know the “right people.” I didn’t include all the groups that come to mind. Sometimes having an advantage over others depends on the circumstances.
BFM, Thanks. When I came here I ran into a shit storm. Idealist welcomed me and mentored me on the players and the program. I thanked him when he was alive on this blog and personally. I have invoked his name MANY times w/o anyone casting aspersions. I have said my efforts are an homage to him. I really appreciate your kind words about my “paisan” as I called him, and he loved. You have no idea how much effort it took to make a measured response to that lecture.
Good looking, thin people have distinct advantages in our culture. Both men and woman reap the benefits of those God given attributes. If you’re fat and ugly, you better be REAL good @ what you do. Good looking and slim, you can turn adequate skills into quick advancement, I repeat, this applies to BOTH SEXES. Hopefully this is not a revelation to anyone.
Lottakatz, Idealist and I became friends. I conversed w/ him via email. I will invoke my friend’s name whenever I care to w/o your approval. He could have used more love here while he was living. He mostly got condescension and derision. Carry on.
Dr. No JD, Rock is a TRUE comedian. He says the things that folks think. He calls out black folks, white folk, Puerto Ricans, etc. The “How not to get your ass kicked by the Police” is easily found on YouTube.
Well Zipser, I admit I have a difficult time taking David’s hypotheses seriously. He has a hypothesis that Fox News is a reliable source and Rush Limbaugh is the cats meow. It may possibly be a weakness of mine not to take someone’s word for it. The fact that there are other law schools who seem to be looking at Leong seriously tells me she isn’t the cretin you want to make her out to be and makes me question your agenda.
No offense meant David, I simply don’t trust your judgment.
@Nick ” He could have used more love here while he was living.”
I am pretty sure he was one of the very first people to respond to me here. I appreciated it. He told some interesting stories.
I am not religious. But I like to think of him, somewhere, sharing more of his adventures.
annieofwi –
have you read the article and the citations. I would think both are pre-requisites to any intelligent objections to David’s thesis. I’d start with the article, but it is so embarrassingly bad as to be hard to explain its citation.
annio I think a reasonable person would at least read the articles in question before commenting in defense or attacking those who have.
Zipsse, I wonder what your take on a law professor such as Bernadine Dohrn not only having no experience practicing law, but being unable to get a law license at all because she is a criminal. The only way that came about is that she is well connected along with her husband Ayers who are the epitome of spoiled brats knowing they are above the law for the most part.
If a Governor would shut down a road for political reasons then what other abuses of govt authority would the polecats/bureaucracies use against the Gen Pop?
Chemical Warfare Against The American Public
I love how David throws out allegations of a Judge giving special favors, with absolutely no supporting evidence.
Wow.
Welcome to the Twilight zone everyone.
Here you are the lab rats:
CRISIS ACTORS WANTED
lottakatz,
Nice article & concept presented by Mark.
It reminds me of the old adage that if we look around the table & we don’t recognize who the fool is it probable is us.
Regardless of why Mark posted this, I see all the signs elsewhere this issue of Americans being unable in many cases deal with sexual issues being rolled out again in public for political & other reasons.
I like the band Rammstein using dark humor & satire poking fun at issues like this.
Playing mind games is with us it seems.
I’m still interested if OS gets back on the topic of how the FBI/LE use brainwashing tech to get innocent people to confess to crimes they didn’t commit.
And with 80 Billion plus a year what has the govt here bought. This doesn’t count what other nations are spending.
** http://www.nytimes.com/2013/06/18/opinion/put-the-spies-back-under-one-r…
Seventy percent of America’s intelligence budget now flows to private contractors. Going by this year’s estimated budget of about $80 billion, that makes private intelligence a $56 billion-a-year industry. **
Nick, Nick, Nick, Your penchant for welcoming new posters (that share your views) and warning them about some element of the blawgs posters that have their own motives and agendas that the new poster needs to watch out for is so predictable. Passive aggressive. Welcome but watch out for the gang of azzz-holes that will gang up on you. You’re just a bit more subtle these days, having been called out on it so often, you’re not saying ‘I’ve got you’re back’ but the immediate wedge-driving is still there in all of its predictable glory. Please don’t whore out the memory of a deceased ex-blawger to explain yourself again, he would put a period behind the ‘welcome aboard’. Using him as cover is an insult to the dead, please have some decency.
I’ll have to track down the Chris Rock video. I do think his overall body of work is a bit more complicated than calling for more personal responsibility. He also talks a lot about racism and disadvantage. I’m reminded of his skit where he talks about the fact that no white person in the building, including the janitorial staff, would trade places with him as a successful black man.
But now we’ve really strayed.
Elaine M:
I read about that case and felt that the reporting was so-so. At the heart of the situation is a dreaded figure, a pro se vexatious litigant and serial abuser of the courts. The court is using its contempt power to try to stop Shuler from publishing serial defamatory and facially false statements against someone he is having a feud with – a neighbor.
So the problem becomes that the court is trying to stop speech that would be actionable before it happens – prior restraint as it is known in the US. That is unusual – normally vexatious litigants limit themselves to filing frivolous lawsuits (I have been on the wrong end of one, who also sued a few judges.) The usual solution is to require them to get a court’s permission before filing any law suits. This presents a stranger situation, a person who is devoted to defaming people by alleging that they have had sexual relations etc. and a court that is before the fact seeking to stop this conduct. It is a messy situation – but if you were his neighbor I think by now you would be “at your wits end.” I’m not sure we know all the facts here.
I will say that all the court has to enforce certain types of ruling is the contempt power – including restraining orders against violent husband and boyfriends – which are also “prior restraints,” just not against speech. However, what gives me pause is that this is a case in Alabama, where Don Siegelman was sent to jail on transparently trumped up charges. Civil liberties seem to mean little in Bama.