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
I want to make it clear that in my comment above about some clients being paranoid, I was responding to the anecdote about the potential client who refused to provide the attorneys anything they could use as evidence. That is a phenomenon I have seen before, and has nothing to with Professor Leong’s complaint. When a client comes in wanting to go to court, becoming offended when asked to provide evidence other than their word, that is a red flag.
Well that, and the accusation that the lawyers were all in cahoots.
Ipse dixit does not cut it in a court of law.
BTW, Professor Apel, since Prof. Leong is in your blog circle I would welcome her input on this topic or my article. I understand that she may not want to participate for several very valid reasons but I always find original sources the most illuminating and I am anxious to hear all points of view. I believe in new information and,in fact, I welcome it gleefully. I’m likewise happy to confirm or discard any assertions/assumptions that I may have made about the issue and to change conclusions based on any new information. She would be the best source for that as well.
Susan Apel:
“Why is Leong’s indignation something you find inappropriate? What would be an appropriate response ? The Amanda Hess article is illuminating. Are women just supposed to laugh this off, be charming, not take it seriously?”
*******************
No, my dear professor, not women. People are supposed to laugh this off, be charming, and not take it seriously. Just people. Subsets not required.
And I think I articulated in the article why I thought Prof. Leong’s indignation at the presumed racial prejudice was inappropriate. But even if that were not so, I would say that indignation is not a desirable quality in a claimant and I would counsel my clients against that type of emotional and ultimately counter-productive response.
As to Amanda Hess’ article, she’s talking about threats to her safety and those concerns are quite valid. However, Prof. Leong herself says her poster was not a threat to her safety nor taken as such. So conflating the two might make for good emotional appeal. It just fails the logic test.
Did ya know that dogs eat their own poop?
I feel that the topic about which way dogs point when they poop or pee is more important than this mush here about whether blog bashers are igPays.
Lawyer Chuck:
See my reply to Dredd about the picture at 3:41 p.m. above. I just love Gene Wilder and the bad grammar wouldn’t stop me from using it.
Elaine M.
You asked: “Would that mean that the victim of the harassment had a paranoid personality disorder?” It’s a good question. But the answer is “no.” Although I agree that a person who is harassed can suffer psychologically, particularly if they are not believed by others, that is not the same as having a Paranoid Personality Disorder. The criteria for diagnosis, according to the DSM-IV-TR, is as follows — I have highlighted the operative words by putting them in CAPITAL LETTERS:
The DSM-IV-TR[14] describes the paranoid personality disorder as a PATTERN OF PERVASIVE DISTRUST AND SUSPICIOUSNESS of others such that their motives are interpreted as malevolent. To qualify for a diagnoses, the patient must meet at least 4 out of the following criteria: (1) suspects, WITHOUT SUFFICIENT BASIS, that others are exploiting, harming, or deceiving him or her (2) is preoccupied with UNJUSTIFIED doubts about the loyalty or trustworthiness of friends or associates (3) is reluctant to confide in others because of UNWARRANTED fear that the information will be used maliciously against him or her (4) reads hidden demeaning or threatening meanings into BENIGN remarks or events (5) persistently bears grudges, i.e., is unforgiving of insults, injuries, or slights (6) perceives attacks on his or her character or reputation that are NOT APPARENT TO OTHERS and is quick to react angrily or to counterattack (7) has recurrent suspicions, WITHOUT JUSTIFICATION, regarding fidelity of spouse or sexual partner.
Hope this helps clarify things.
Susan,
I think you’re getting the message.
Check out some of the comments on this other post about Leong:
Law Professor Seeks Bar Discipline For Attorney Who Posted Anonymous Criticism Of Her Work And Other Female Professors
http://jonathanturley.org/2014/01/08/law-professor-seeks-bar-discipline-for-attorney-who-post-anonymous-criticism-of-her-work-and-other-female-professors/
Why is Leong’s indignation something you find inappropriate? What would be an appropriate response ? The Amanda Hess article is illuminating. Are women just supposed to laugh this off, be charming, not take it seriously?
Have fun Mespo!
annie,
as Elaine suggested earlier, great link.
annie,
I really appreciated being able to read that information as well. Thank you for the link.
On the pic: “Tell me again . . . “your….” The grammar police cannot let that one go. Sure hope your highschool English teacher doesn’t see it.
annie,
Thanks for that link.
Sorry to blog and run but Suzanne and I are meeting some friends for a little real imbibing and she says I ‘m late in getting ready since we have to make a significant drive in the rain. I ignore that to my detriment — and I don’t like detriment.
Really, you think it was acceptable for her to go to his wife and seek her help in reigning in the cyber staker husband? Yes I agree.
Dr No JD:
“Thanks for clarifying your perspective on the First Amendment values. I suppose I just see the First Amendment as very definitely about government restrictions on speech. The right to speak anonymously is a right against the government, not against other people.”
********************
Well that’s the issue. I have no problem with Prof. Leong going directly to the poster or his wife or even his momma, but when she seeks redress through the Illinois State Bar — an arm of the Illinois government — I have a problem. Prof. Leong knows full well that this is invoking government sanction against free speech she (and I) finds offensive, and while she doesn’t control the Bar she controls her own actions. As a constitutional scholar devoted to defending the Constitution as we all swear to do, I find this “schizophrenic.”
As to your second point about the volume of angst we can agree to disagree. I find making your struggle public in any way is a way of seeking sympathy or to make you appear reasonable — whether you are in your heart of hearts or not.
Shakespeare got the point across about the torn Prince of Denmark in 5 lines:
To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them?
She’s no Shakespeare, but I got the message.
In my opinion and it can be rejected, is that there comes a time when there is no more time for ignoring, when there is no alternative but to fight back.
Mespo: Thanks for clarifying your perspective on the First Amendment values. I suppose I just see the First Amendment as very definitely about government restrictions on speech. The right to speak anonymously is a right against the government, not against other people. To me this is very important and I don’t view my personal decision to speak (or not speak) as having First Amendment implications. But I can see the counter perspective.
On the second point, you’re quoting the blog post I was thinking about (so I’m very glad not to have missed something). I suppose it’s a matter of perspective, but I don’t see a two paragraph discussion as amounting to “horn tooting or the Hamlet-ian angst over whether to ‘out’ or ‘not to out’.” Instead, it seems like a thoughtful description of her thinking.
Of course, the two issues may be interrelated. Because Professor Leong and I seem to have a somewhat similar view of the First Amendment (in the sense that it doesn’t really bear on the moral calculus of the decision she is discussing), I may read her recounting of her thinking process as more relevant to her overall themes than you. It sounds like you view the moral equation to be very straightforward. And if that’s true I can see how you’d think any discussion of this issue at all would be somewhat self-indulgent.
Consequenses and Conclusions by Ms. Leong.
I think sometimes we don’t know how we’d react to certain situations unless we are faced with the same types of circumstances ourselves. When I hear stories like Leong’s, I try to put myself in her position and think about how I would feel if someone were continually harassing and making derogatory comments about me in a public forum. How long should she be expected to put up with it? What could/should she have done?