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
That’s a nice video – Enfield also had some on the “she must be a lesbian [because she shot me down]” trope.
Dr. No JD, I’ve just read the 2.
**on 1, January 13, 2014 at 4:05 pm Elaine M.
Harry Enfield v **
Elaine,
Excellent of the right kind of humor about an awkward problem some men have. 🙂
And yes, my wife tells me my inner pigman/redneck is showing a bit much at times & to reel it back in. lol
There’s nothing as ugly as when what was meant as humor isn’t & when we are telling it we don’t know it isn’t.
anniofwi
” never go to the anywhere by herself after dark, always to go in twos”
– I heard that about a few prairie air force bases, seriously.
As for your daughter’s answer;
” I don’t know enough about it and I can’t make a call on it, and that’s what makes me a good lawyer”
Smart lady. Like so many situations, this is so much more messy and complex than it first appears, and not something that can be summarised in a few sentences.
**on 1, January 13, 2014 at 3:59 pm annieofwi
So only rednecks would defend children, women and the elderly?**
Of course not Annie, et al:
In the animal kingdom animals natural defend their group from predators.
Humans are naturally built to do the same, defend their group from predators.
But on the other side is joking around & many being over sensitive.
For example we can tell all the caveman/Redneck jokes we want, but don’t make a joke about blacks unless you’re black, etc…
Some tell jokes that are mean spirited & hateful & I think that’s wrong, then with some the don’t know the difference.
Then another over sensitized issue is of human sexuality. Humans have to reproduce or human pop dies out. So there are always going to be those awkward moments in life, at the office, school, in public when someone express interest in another person.
Some people get offend by the others approach, normally if the person isn’t tone deaf they soon realize the other person is not interested & moves on.
There’s a lot of messy business in life with humans, were not robots so we just have to muddle through the mess often, without being overly sensitive all the time
**So in other words, you don’t make fun of my Man Boobs & I won’t make fun of your boobs. 🙂 (Now that’s an attempt at humor for you tone deafs out there. lol) **
Elaine, that was excellent! Repulsive and frightening!
Also that should be Afghanistan, I blame my iPad.
One of the first things that my oldest daughter, the one in the Navy, was told when she landed in Afgahnistan by the male Marines and Corpsmen she worked with was, to never go to the anywhere by herself after dark, always to go in twos. The danger wasn’t from the Taliban, it was from fellow military members. That’s pretty shameful, but has nothing to do with the females being feminists or not.
annie,
I think you’ll enjoy the following Harry Enfield video even more than the Monty Python “she’s a witch” video:
@Elaine M.: The women I hang with, lawyers and not, are still laughing at this video as am I. Those who fail to miss the satire need their brain oil changed. The only mistake I saw was his dismissal of sexual relations at the end of the clip. Some of the redneck men I know will tolerate one hellava bunch more than her hilarious put-downs for sex. Come to think of it, so would I when I was young.
Oky1 @”So everyone can call me an old-fashioned masculine, muscular guy, Redneck all they wish, it doesn’t hurt my feelings one bit.”
OK, I get it that you are masculine and muscular. If the chips are ever down for me I hope I have you at my back.
But one of the questions is: has all this feminist stuff turned you into a bully? Would modern feminism lead you to use your strength for illegal or unethical acts? Some how I think not. But that is for you to consider and answer if you choose.
Oky,
“It feels to me that some believe since the very small percentage of males that are rapist that that makes all men rapists. That’s false & so I think I’m correct being resentful of their painting everyone with sure a broad brush.+
“The military & now it seems LE trains controlled violent killers/fighters, a small percentage of them go out of control.
“I wish those women could depend on receiving justices from the system, but I’d strongly prefer that those women had been able to defend themselves by every means available.
“OS recently wrote an article about a Nurse he knew that did successfully defend herself against an attack.
“What I’m saying is women are not asking to be attacked, they don’t deserve to be attacked, but maybe instead of being a feminist they should be a bit more of a Tomboy & beat the he’ll out of the attacker if they are able.”
*****
I believe you are wrong about women thinking that all men are rapists. What has being a feminist got to do with being raped? Do you think only feminists are the victims of rape? BTW, there have been many men who have been sexually assaulted while serving in the military. Do you suppose they are feminists?
So only rednecks would defend children, women and the elderly?
on 1, January 13, 2014 at 12:35 pm Elaine M.
Oky,
“And I’m so sick of the “Oh poor me, I’m so sensitive” crap I might soon start telling Pollock jokes I’ve had off limits for something like 40 years.
“What, you want to breed a world full of pansy azz wimps that cry upon a shift in wind direction?”
*****
**
“I have to say that in this sort of feminized atmosphere in which we exist today, guys who are masculine and muscular like that in their private conduct and are kind of old-fashioned tough guys run some risks,” Hume opined.
“Feminized!” Fox News contributor Lauren Ashburn gasped.
“Atmosphere,” Hume nodded. “By which I mean that men today have learned the lesson the hard way that if you act like kind of an old-fashioned guy’s guy, you’re in constant danger of slipping out and saying something that’s going to get you in trouble and make you look like a sexist or make you look like you seem thuggish or whatever. That’s the atmosphere in which we operate.”
“This guy is very much an old-fashioned masculine, muscular guy,” he added. “And there are political risks associated with that. Maybe it shouldn’t be, but that’s how it is.” **
Elaine,
I seen a show last week about the tragic cases of women getting raped in the military & the military leaders covering up the cases.
It feels to me that some believe since the very small percentage of males that are rapist that that makes all men rapists. That’s false & so I think I’m correct being resentful of their painting everyone with sure a broad brush.+
The military & now it seems LE trains controlled violent killers/fighters, a small percentage of them go out of control.
I wish those women could depend on receiving justices from the system, but I’d strongly prefer that those women had been able to defend themselves by every means available.
OS recently wrote an article about a Nurse he knew that did successfully defend herself against an attack.
What I’m saying is women are not asking to be attacked, they don’t deserve to be attacked, but maybe instead of being a feminist they should be a bit more of a Tomboy & beat the he’ll out of the attacker if they are able.
Yes, I understand not every case is where the victim is in a position to defend themselves, but I don’t think we should promote learned helplessness either.
Along the same lines I noticed that show didn’t even mention male on male rapes in the Military/LE yet we know that there are cases of such acts.
And yes, I am a Redneck because if I see someone beating up, robbing, attempting to rape/kill lil kids, women, the sick or the elderly I’ll be intervening to kick the attacker’s azz to stop the attack & hold them til the police show up.
So everyone can call me an old-fashioned masculine, muscular guy, Redneck all they wish, it doesn’t hurt my feelings one bit.
Elaine,
I saw that Christie article and to be honest, nothing surprises me with Brit Hume anymore. Also, I didn’t think obesity is a synonym for muscular.
rafflaw, I think that in order to throw THAT much weight around, he has to have some pretty good muscles.
Elaine, hahahaha!
“Why do you think she’s a witch?”
“Because she looks like one!”
“They dressed me up to look like this.”
Oky,
“And I’m so sick of the “Oh poor me, I’m so sensitive” crap I might soon start telling Pollock jokes I’ve had off limits for something like 40 years.
“What, you want to breed a world full of pansy azz wimps that cry upon a shift in wind direction?”
*****
Maybe you’d agree with Brit Hume’s reasoning for why chris Chistie is perceived as a bully?
Fox’s Brit Hume shocks female panelist: ‘Feminized atmosphere’ made Christie a ‘bully’
By David Edwards
Sunday, January 12, 2014
http://www.rawstory.com/rs/2014/01/12/foxs-brit-hume-shocks-female-panelist-feminized-atmosphere-made-christie-a-bully/
Excerpt:
Fox News analyst Brit Hume on Sunday said that New Jersey Gov. Chris Christie (R) had only gotten a reputation for being a bully because men could not be “masculine and muscular” in the “feminized atmosphere” created by the media.
During a panel discussion on the Fox News show Media Buzz, host Howard Kurtz asked if Christie’s “bully image” was hurting him after his administration was accused for closing part of the busiest bridge in the world to hurt his political opponents.
“I have to say that in this sort of feminized atmosphere in which we exist today, guys who are masculine and muscular like that in their private conduct and are kind of old-fashioned tough guys run some risks,” Hume opined.
“Feminized!” Fox News contributor Lauren Ashburn gasped.
“Atmosphere,” Hume nodded. “By which I mean that men today have learned the lesson the hard way that if you act like kind of an old-fashioned guy’s guy, you’re in constant danger of slipping out and saying something that’s going to get you in trouble and make you look like a sexist or make you look like you seem thuggish or whatever. That’s the atmosphere in which we operate.”
“This guy is very much an old-fashioned masculine, muscular guy,” he added. “And there are political risks associated with that. Maybe it shouldn’t be, but that’s how it is.”
annie,
Oky1:
“And I’m so sick of the “Oh poor me, I’m so sensitive” crap I might soon start telling Pollock jokes I’ve had off limits for something like 40 years.”
Why do want to tell jokes about a fish and an artist?
Oky1:
Your response was anticipated and consistent with the point of my comment.
They’ve no doubt read only the one in question and then I question even that. I’ve read both now and I think she is a serious scholar, worthy of any law school. I plan on reading yet more, perhaps her writings on the constitution might be next, Makng Rights.