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Katrina and Democracy

I'm not sure whether hurricane Katrina taught us that federal, state, and local officials are necessarily incompetent; or whether only the current elected-officials could have guest-starred in "F Troop."  There is certainly enough blame for every level of government to bear.  But putting aside the obvious incompetence of our current officials, Katrina has a broad lesson in democracy.  Your vote has consequences.  The wrong vote could kill you.

New Orleans mayor Ray Nagin is a boob.  He never should have been elected.  He failed to reform an incompetent and corrupt police department.  Under his leadership, hundreds of police officers quit their jobs when the going got tough: others stayed on the job to loot.  Because of Nagin's election, hundreds of thousands of people have suffered, and hundreds have died. Governor Kathleen Babineaux Blanco is similarly incompetent.  She hid from the screams of her people.  Finally, President Bush dispatched hundreds-of-thousands of troops to Iraq - making us less safe at home. 

Can anyone imagine former-New York mayor Guilliani behaving like Nagin the boob?  Can anyone imagine Governor Schwarzenegger cowering in the Governor's Mansion, as Blanco did?  Can anyone image former-President Reagan fighting the war in Iraq?

Yet when we vote for elected officials, we don't consider whether they will remain steadfast under pressure.  Rather, we rent seek.  We don't consider foreign policy credentials, or whether the official can lead during a crisis.  In California, the teachers union hates Schwarzenegger because he wants to fire incompetent teachers, and raise tenure standards.  Police unions hate him because he wants police officers to have, like a few lucky Americans, a 401(k).  The audacity!  By seeking to use the government as a piggy bank, by seeking to install cowards of the magnitude of Nagin and Blanco, the teachers and police unions are making Californians less safe.

Imagine if a major natural diaster had hit California during Gray Davis' tenure.  Does anyone think Californians would have fared better than those trapped in Louisiana?  If anything, Katrina has taught us that we should vote for government officials who will lead during time of crisis.  Government should do few things, and it should do them well.  Preparing for and responding to natural disasters and terrorist attacks is one such thing.

We need to stop voting for government officials based largely on whether they will give us some kickback.  As recent events have shown, that kickback might cost us our lives.


"The Theme's The Thing"

Norm's post reminded me of one of my favorite speakers - Charles L. Becton.  I saw Mr. Becton speak at ATLA's 2001 "Weekend for the Stars" CLE.  (I had finished my last final exam of my first semester of law school, hoppped on the red-eye three hours later, and made it to New York to watch him and other stars of the trial bar.)  Becton spoke of themes.  His practical application of themes and metaphors is years ahead of "Don't Think of an Elephant."  If you're interested in themes, do read his article: "From Mediocrity to Virtuosity: The Theme's the Thing."


Fairy Tale Project

There are many ways to try a case. I've heard some lawyers referred to as "fact triers;" other lawyers have been referred to as "law triers." Both facts and the law have their place in trial, but I am persuaded the most important thing for a trial lawyer to master is energy.

I've seen odd things happen at trial. Sometimes great facts and good law yield humdrum results; less compelling facts and less supportive law does, from time to time, produce near miracles as results. What distinguished the two cases? Energy. The side with a hero, or, lacking a hero, able to identify the other side as the den of villains, stands a greater chance of winning.

Most trial lawyers spend too much time on the law and too much time developing facts of no particular significance, or they worry the facts that cut agains their client to the point of paralysis. My advice? Try themes, not facts. I can't say it works every time; sometimes, as Freud once famously observed, "a cigar is just a cigar," and there is nothing that can be done with the facts at your disposal.

But more often than not a good theme, a good story, a good archetype, can carry a case.

Where do good themes come from? I suspect the same sources as yield the stories and fables that all of us intuitively grasp -- fairy tales, legends, and the stuff of popular culture.

I've not yet begun any systematic "research" on this topic. I've just noticed how much energy matters at trial. We've create a separate category called Fairy Tales here at C & F to advance this discussion. I hope you will read and contribute.


Pro Bono Anyone?

Anyone licensed in the Sixth Circuit want to take this case pro bono?  The guy was pro se, so I'm sure he'd appreciate the help.  I'll do all the grunt work (re: draft the briefs and motions seeking en banc review, and if necessary, draft the cert. petition).  You'll do the oral argument and soak up the glory.  I've already begun drafting an internal memorandum explaining why the panel's opinion was not just incorrect, but embarassingly so.  E-mail me.