Monday Morning Hearsay


I’ve been posting Monday Morning Hearsay for several years now, and finally I have the opportunity to write on the subject I previously only alluded to with my catchy title: football.

A recently reported decision of the Maryland Court of Special Appeals comes to us from the world of youth football and it describes a problem most league parents will confront at one time or another: the grown-up who takes the game just a little too seriously. In this case, a coach allegedly cursed at another volunteer in front of children and, probably to the coach’s eternal regret, a parent who also served on the league’s board of directors. The board suspended the coach, and the coach, determined to set an example of sportsmanship, then sued the league for defamation.

Here we leave behind the world of passes for the world of privileges. To win a defamation case, it’s not enough to prove that someone has made a false statement about you. A plaintiff also has to prove publication, meaning that a statement was not only made but was communicated to one or more people other than the plaintiff himself. But under the law there have always been certain privileges, or protected communications. There is a legislative privilege, for example, that protects statements made during the legislative process. There is the attorney-client privilege that protects communications between a lawyer and her client. There is the privilege against self-incrimination guaranteed by the Fifth Amendment.

A person sued for defamation may assert the common interest privilege. If you’re not a lawyer you won’t have heard of it, but if you’ve ever been one of several parties to litigation you’ve probably had the benefit of it whether you know it or not. The attorney-client privilege does not extend to communications between a lawyer and someone she doesn’t represent, even if that person is on the same side as the lawyer’s client. So if you and another poor soul have been sued and you retain different lawyers, and the four of you talk about best how to defend the case, your opponent could force you to reveal your secret strategies if the attorney-client privilege was the only available privilege. Luckily, it’s not. The common interest or joint defense privilege evolved to ensure that when people who share a common interest share information amongst themselves, we don’t consider the information published. In order to be published, the information must be shared with a third party outside of the shared interest group. And since publication is necessary to prove defamation, the common interest privilege also defeats claims based upon false statements.

This issue comes up more often than you might expect and pretty frequently in the employment context. In smaller companies, hiring and firing decisions are often made by the board of directors or at least shared with them. In larger companies, the board participates in hiring and firing only for very senior personnel, but in such cases the monetary stakes are concomitantly much higher. Municipalities and non-profits make all sorts of decisions through boards or councils. Hospitals conduct peer reviews of challenged professional conduct. Teachers, administrators and parents meet and share information during IEP or student disciplinary meetings. In all of these contexts the potential for provocative statements in an emotionally-charged environment is high. And for defamation purposes, so long as a false statement is innocently made within such a group, it will not support a defamation claim.

There is an exception in cases of malice. In a defamation case the common interest privilege can be defeated by proving that the statement was made with actual knowledge of its falsity. If the speaker has no reason to know that a fact alleged is not true, even if he could have discovered that it is false with a little investigation, he will be still be protected from a defamation suit.

Another exception applies if a statement is made for purposes other than the group’s common interest. So, for example, if a board member is participating in a meeting to decide whether to fire the company’s CEO and he suddenly starts telling the board about his neighbor who’s probably having an affair with a politician, the common interest privilege does not apply. To be protected, a statement has to be related to the purpose for which the group has convened.

That concludes today’s lesson on the common interest privilege, friends, but it wouldn’t be Monday Morning Hearsay without a quote. This comes from Shirley v. Heckman, our appellate decision on the common interest, and brings us back to football with a little international rivalry:

Bill Shankly said it most succinctly: ‘Some people think football is a matter of life and death . . . . I can assure them that it is much more serious than that.’

Followed by this footnote:

Mr. Shankly, the manager of the Liverpool Football Club in England, spoke of course of the brand of ‘football’ that Americans call soccer. But his sentiment originated here in America and with our brand of football: wittingly or not, Mr. Shankly paraphrased UCLA football coach Henry Russell “Red” Sanders, who declared on the eve of a showdown with USC for a Rose Bowl bid that ‘this game is not merely a matter of life or death . . . It’s more important than that.”

(Internal citations and alterations omitted)

P.S. Go Ravens!

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We have, I believe, the first opinion authored by Judge Douglas R. M. Nazarian, who was appointed to the Court of Special Appeals in January.  And it is worthy of mention not only because it is his first reported opinion, but also because it makes reference to “backsies,” and to one of Russell Hoban’s Frances books.

The opinion is Barson v. Maryland Board of Physicians, No. 2673 (Md. App. May 3, 2013).  The case has to do with a consent order entered in the Maryland Board of Physicians, the body charged with the licensing and discipline of physicians.  A consent order is akin to a plea agreement in criminal court, although it is important to note that the Board is an administrative agency and its determinations are not criminal in nature.  In any event, a physician sought to renegotiate the order when she had second thoughts about it and the Board denied her request.  The Court of Special Appeals agreed and held that the Board was under no obligation to revise the order.

Here’s where we get to “backsies:”

A deal is always a deal, but this appeal brings to mind the long-standing playground rule of “no backsies.” By calling “no backsies” before finalizing an agreement, the parties reiterate and reinforce their intention to be bound and stay bound.

And then, in a footnote:

See, e.g., Russell Hoban, A Bargain for Frances (1970). The Consent Order in this case is, as the discussion below reveals, distinguishable from the bargain in the story, which Frances entered in reliance on her friend Thelma’s misrepresentations about the value and virtues and availability of plastic versus china tea sets. Even still, and putting aside whether Frances might have been able to seek rescission from a higher authority, the “no backsies” rule held until Thelma’s seller’s remorse (fueled in part by a clever if borderline omission on Frances’s part) led her to seek, and Frances to agree to, backsies after all. Another variant applies in the game of tag: if a player who is “it” calls “no backsies” before tagging another, the taggee cannot tag him/her back immediately.

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Any friend of Frances is a friend of mine, for the record.

 



 



 

Before Gardens: The Golden Age
 
 
 
Then sprang up first the golden age, which of itself maintained
The truth and right of everything, unforced and unconstrained.
There was no fear of punishment, there was no threatening law
In brazen tables nailed up to keep the folk in awe.
There was no man would crouch or creep to Judge, with cap in hand:
They lived safe without a Judge in every realm and land.
The lofty pine tree was not hewn from mountains where it stood,
In seeking strange and foreign lands, to rove upon the flood.
Men knew no other countries yet where themselves did keep;
There was no town enclosed yet, with walls and ditches deep. 
No horn or trumpet was in use, no sword or helmet worn:
The world was such that soldiers’ help might easily be forborn.
The fertile earth as yet was free, untouched of spade or plough,
And yet it yielded of itself of every thing enough.
And men themselves, contented well with plain and simple food,
That on the earth of nature’s gift, without their travail stood,
Did live by raspis, hips and haws, by cornels, plums and cherries,
By sloes and apples, nuts and pears, and loathsome bramble berries,
And by the acorns dropped on ground from Jove’s broad tree in field.
The springtime lasted all the year, and Zephyr with his mild
And gentle blast did cherish things that grew of own accord,
The ground untilled, all kinds of fruit did plenteously afford.
No muck nor tillage was disposed on lean and barren land,
To make the crops of better head, and ranker for to stand.
Then streams ran milk, then streams ran wine, and yellow honey flowed
From each green tree whereon the rays of fiery Phoebus glowed.
 
 

Ovid (trans. Arthur Golding)

Ovid-006

Just a poem today, one I really love from the April 2013 issue of Poetry.

Order
 
 
For once, her was just my father.
We drove to the Computing Center
in a Monte Carlo Landau
not technically ours.  Lexington,
 
 
1977.  That fall.  The color
had settled, too, undone
orange-brown and dull yellow,
crimson.  And it was something,
 
 
yet not, the pile of leaves
just a pile of leaves.  Sorry to think
what thinking has done to landscape:
He loved punched cards,
 
 
program decks and subroutines,
assembly languages
and key punch machines.
Even my father looked small
 
 
next to a mainframe.
The sound of order;
the space between us.
We almost laughed, but not for years –
 
 
we almost laughed.  But not.  For years,
the space between us,
the sound of order
next to a mainframe.
 
 
 
Even my father looked small.
And keypunch machines,
assembly languages,
program decks and subroutines.
 
 
He loved punched cards,
what thinking has done to landscape –
just a pile of leaves.  Sorry to think,
yet not, the pile of leaves
 
 
crimson.  And it was.  Something
orange-brown and dull yellow
had settled, too, undone
1977, that fall, the color
 
 
not technically ours, Lexington
in a Monte Carlo Landau. 
We drove to the Computing Center,
For once he was just, my father.
 
 
Randall Mann, from Poetry (April, 2013)

Something about April always makes me think of sestinas, don’t ask me why.  I love that this poem, which is neither a formal sestina nor a pantoum, but a cross between them perhaps, moves from the large (the relationship between fathers and sons) to the small (father standing next to the mainframe, punch cards) and then back again.  Both sestinas and pantoums rely on words or phrases repeated in strict, orderly fashion; they process words, you might say, the way a computer processes the data fed in.  Our relationships might work much the same way.

I also love the way that the phrase “the sound of order” echoes Wallace Stevens’ “The Idea of Order at Key West.”

I’m about 10,000 words behind where I should be to reach my Camp NaNoWriMo goal for this month.  Wish me luck, fellow campers.

According to a recent report in Hollywood Weekly, a new lawyer-focused reality show is coming to television this fall. Like the cancelled shows “Legal Ease” and “The Law Firm,” “Dog and Pony” will be a legal reality show, but with an exciting twist.

“Dog and Pony,” the first season of which was filmed in Philadelphia, will feature eight mid-sized law firms in competition for valuable legal work from two large potential clients. The identities of the clients, which have been described in promotional materials only as “Fortune 500 companies” and “titans of industry,” will be revealed to much fanfare during the show’s finale. The law firms will compete in various scenarios to earn the trust and confidence of these unnamed companies, whose mask-wearing general counsel will determine the winners and losers of each competition. The winners of each round, along with the firms who are not eliminated from competition, will be awarded a much-coveted “check” in payment of the firm’s invoices for work performed. The firms who are not selected to continue in the next round will receive a humiliating “write-off.”

It is not clear what sort of legal advice or work will be performed by the competing firms, but a preview distributed to a few critics in advance of the premiere includes footage of suited men and women struggling to complete a gigantic, inflated and water-soaked obstacle course while dictating memos into their Blackberries. In another segment, elderly partners emeriti sit in overstuffed leather chairs in the library of a private club, competing to see who can drink the most single malts while coherently reciting war stories from fifty-year old cases. (Rumors indicate that one competitor was disqualified late in the season when his liver failed). Yet another segment featured young associates locked inside a prison cell, chained to walls and forced to decide whether to remain chained (which results in the accrual of a “bonus”) or to saw off their own arms in order to escape. (A copyright lawsuit by the producers of the Saw movie franchise was reportedly settled several months ago).

Considering how ridiculously unrealistic most law-based reality shows have been to date, “Dog and Pony” sounds like a breath of fresh air. I encourage young attorneys and law students, especially, to look out for it, as it may prove more useful to you in your tender youth than any of your law school training. I myself have submitted an application to compete on Season 2.

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Maryland Senate Bill 263 (which was cross-filed with House Bill 130) would have permitted courts to award attorney’s fees to individuals who filed suit to enforce constitutional rights in Maryland courts but was reported unfavorably in committee and withdrawn.  Attorney’s fees may be awarded under many federal civil rights statutes, but Maryland has no similar general scheme.  (Certain specific Maryland statutes do permit attorney’s fee awards, and fees may be awarded in certain civil actions such as suits to enforce rights under an insurance policy.)
The language that follows is from Senate Bill 263:
WHEREAS, There are now more than half a million Marylanders living at or
near the federal poverty level; and
WHEREAS, The legal problems faced by low–income Marylanders are more
likely to involve low monetary claims, which make it difficult or impossible for them to attract counsel because the means are not available to compensate
an attorney from the proceeds; and
WHEREAS, There is no provision in Maryland law that permits
an award of attorney’s fees to individuals asserting a State constitutional claim, which means that many Marylanders are unable to assert their rights under the State constitution for lack of counsel, because these claims are often for injunctive or nonmonetary relief and, without a monetary award, there are no funds with which to pay an attorney; and
WHEREAS, A law that provides for an award of attorney’s fees to a prevailing party would permit litigants in cases involving low or nonmonetary relief to find attorneys to represent them, provided their cases have merit; and
WHEREAS, Such provisions can be a powerful tool for promoting access to justice, and they do so in a way that does not require any additional expenditure of public funds, by creating incentives for private attorneys to accept clients with meritorious claims; and
WHEREAS, Such provisions permit aggrieved parties to be “made whole” by ensuring that they do not have to pay for their legal representation from the compensation they were awarded; and
WHEREAS, Such provisions permit individual citizens to enforce rights protected by law in a manner that has a larger social benefit, reducing the need for State action and expenditure to enforce the law; and
WHEREAS, The purpose of such provisions is not to benefit private attorneys, but to promote access to legal representation for individuals who are unable to retain counsel, despite having meritorious claims, in case types that legal aid organizations are not able to accept because of statutory or funding restrictions; and
WHEREAS, When large segments of Maryland’s population are denied effective access to the justice system and are unable to assert and defend effectively important civil legal rights and prerogatives, public trust and confidence in the justice system is placed in jeopardy[.]
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Lawyers do a lot of research.

It might surprise you to learn that poets also do a lot of research.

We tend to assume that poetry springs from the mind of the writer like Athena from the mind of Zeus: fully formed.  But not so much.  Image

From Jeffrey Skinner’s “The 6.5 Practices of Moderately Successful Poets: A Self-Help Memoir” (Sarabande Books 2012), two quotes from writers who are more than moderately successful:

I need to ground my work in particulars.  In my case this usually means a material object such as a book, or a manuscript, most recently lace.  Often a historical moment, or a specific person.  Not a made-up character – I could never be a novelist – but I try to understand all aspects of the person I am writing about the way a playwright or an actor might.

– Susan Howe

I’m usually more comfortable dealing with atmospheres and sensations than irritably reaching after facts.  “American Myth” began, really, when I was a kid, dipping into books I didn’t understand on my parents’ bookshelves.

– Kathleen Ossip

Lawyers tend to be pretty good at the first sort of research because it is the sort of research that develops answers to specific questions.  A client wants to know whether he has a cause of action based on a discrete set of facts.  We plug the facts into the Westlaw search bar and come up with an answer.  This is deep research: time spent accumulating information responsive to a specific problem.  Like Susan Howe, we “ground” ourselves in the facts presented in a client’s matter.  What we learn might be helpful to us again at some point in the future, or it might not.

Kathleen Ossip, on the other hand, relies on what we might call wide research.  She doesn’t start out with a topic to write about necessarily; instead, having read widely she draws upon what she has accumulated and comes up with something interesting, a connecting line between two points that no one else has spotted before.  And she writes about that.

Now I am going to suggest something that the lawyer marketing gurus would probably consider heresy.  Which kind of research is more important to a lawyer’s success?  I say the second, and here’s why.

The fact is that anyone of moderate intelligence with access to Westlaw or Lexis or Google can answer a distinct legal question.  It may not be the most polished answer, and you won’t want to bet the company on it, but realistically as information has become readily available online it has become less and less necessary to pay a lawyer for access to the information.   We are no longer gatekeepers because the fences are down.

The value a lawyer brings to a particular transaction is no longer information but knowledge.  Knowledge is to information as a shopping cart is to the items on the shelves at the grocery store.  A person with knowledge understands which items are relevant and necessary, which are too costly or of too poor quality, and which should be purchased and stored for future use.

This is why I pointed out in an earlier post that Justice Scalia is wrong to critique the “Law and . . .” seminars offered by law schools.  Yes, it is important to understand legal subjects in depth.  It is equally important to bring the contexts of history, culture, psychology, politics, and economics to bear on legal issues.  No legal problem exists in a vacuum.  It is nonsensical to expect that its solution should.

My background is in literature and I continue to read a great deal.  I probably average two or three novels a month, sometimes more, sometimes less.  I am certain that my reading informs my work and my thinking.  Personally I believe literature is the best source for understanding all of those contexts I mentioned in the preceding paragraph.  You might not, and would prefer to read pure history.  Or maybe you are a film buff.  Do whatever just so long as you are acquiring breadth as well as depth.

The better able we are to think and reason and exercise discretion, the better prepared we are to practice law.  These are skills not taught in law school or any CLE and not available for purchase online.  They are acquired over a lifetime of learning and they are exquisitely valuable.

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