Crime & Federalism

Maybe it's Seasonal Affective Disorder, but each winter I return to Charles Bukowski's work. Ham on Rye is considered his best, but it didn't do much for me. Women is much better, and while Love is a Dog From Hell is good, Factorum is my favorite.

He's a great writer for alcoholics. If you're a drinker, he's your guy. (I drink to get drink only a couple of times a year.) I enjoy his writing because he describes better than anyone the plight of the introverted misanthrope. Unlike Bukowski, I don't hate people. I get sick of them quite readily, though.

Why do people, every day, ask me how I'm doing? This makes no sense to me. You saw me yesterday. What do you suppose happened since? And if things were going well or terribly, why do you suppose I'd want to talk about to anyone - let alone you?

It's not a hate for people, but rather there is no need to connect. I don't need to tell people about my day, or share my feelings, hopes, and dreams. When someone asked me, "What are your goals?" I started laughing hysterically. 

It's not that people offend me. It's that I offend people. Tell someone that you don't care about their banal day, and see how they react. Tell someone that they are not special, and that their day is no different than the day of millions of others - and that their today is no different from their yesterday, or their tomorrow.

Tell people the truth, watch their reactions, and then accuse me misanthropism.

I empathize with Bukowski:

The further I am from the human race,the better I feel. Even though I write about the human race, the further away I am from them, the better I feel.

Two inches is great, two miles is great, two thousand miles is beautiful. As long as I'm able to eat. They feed me because I feed them. But I don't like to be near them. When somebody even brushes against me with an elbow, in a crowd I react.

I do not like the Human Race.

I don't like their heads, I don't like their faces. I don't like their feet.

I don't like conversations. I don't like their hairdo.

I don't like their automobiles. I don't like their Dogs. Or their Cats.

Or their Roses.

The law blogging world offers two posts today that helpfully show what is wrong about the criminal justice system. First, the posts show that civility has more to do with passive-aggressive rules than honor and integrity. Second, the posts show that lawyers are gagged.

In one post, a law blogger notes that a federal judge sentenced a man to one year in prison for saying, "Fuck, y'all." I ain't even fucking kidding. That shit really fucking happened.

In an opining affirming the trial court (but allowing the man to go to prison for only six months), the Court of Appeals talked about civility and whatnot. Basically, a bunch of fucking bullshit.

In another post, a law blogger notes that a federal judge helped prosecutors break the law. Well, the law blogger doesn't go that far - because it's unethical for lawyers to say such things about judges.

Unlike other Americas, lawyers are not protected by the First Amendment. There is a Speech Code. See, Should Lawyers be Free to Publicly Excoriate Judges (noting that lawyers are indeed not free to excoraite judges) (cited among other sources in Annotated Model Rules of Professional Conduct).

Isn't that interesting? Lawyers are the ones with the most knowledge about the justice system. Thus, lawyers are allowed to say the least about the justice system. Does that make sense?

Lawyer speech codes make much sence, once you check your premise. What is the judicial system really concerned with? Read the above two blog posts, and reason accordingly.

If you enjoy RooshV, you'll love this post at Jezebel.

Half Sigma has a great post about - gasp! - unions. Aren't unions evil? 

There was a blog post on a certain popular libertarian economics blog about how stagehands make a really good salary. “At Avery Fisher Hall and Alice Tully Hall in Lincoln Center, the average stagehand salary and benefits package is $290,000 a year.”

Instead of lauding the stagehands for using Harvard-MBA-level business strategy to increase their profit, the readers of the libertarian blog are outraged that they are making money.

You fucking idiots hate working stiffs who earn more money than you, but have nothing to say about Wall Street. Because hating people who steal trillions in taxpayer money is class envy. Why hate the rich for being successful?! How dare you tax success?!

The libertard/conservative brainwashing has been interesting to observe. The guy pounding nails at Avery Fisher Hall is like you - just a regular working stiff. You hate him. The guy watching a show at Avery Fisher Hall is nothing like you, and indeed, he steals from you. You love him, and hate those who would tax him.

By the way, the libertarian blog bashing unions is Tyler Cowen's Marginal Revolution. Tyler Cowen is CEO of the Mercatus Center - which is a non-profit [sic] funded by Wall Street bankers. He and other ministers of propoganda serve their masters well, as they turn you against your natural allies. Investments into "think tanks" like Mercatus pay dividends well beyond the 30 pieces of silver.

There is only point in any argument that you have total control over - yourself.

I read a quote like that in some book or website. It seems trite, and yet people contradict it often. And, no, I'm not talking Stoicism or control over emotions. I'm talking about character. 

In rhetoric, the Greeks spoke often of character - namely, the character of the person making the argument. Aristotle wrote, in Rhetoric:

We believe good men more fully and more readily than others: this is true generally whatever the question is, and absolutely true where exact certainty is impossible and opinions are divided. This kind of persuasion, like the others, should be achieved by what the speaker says, not by what people think of his character before he begins to speak. It is not true, as some writers assume in their treatises on rhetoric, that the personal goodness revealed by the speaker contributes nothing to his power of persuasion; on the contrary, his character may almost be called the most effective means of persuasion he possesses.

Even if you're not "good" in some moral sense: Are you likeable? Do you smile? Do you wear nice clothes, brush your teeth, properly groom and practice good hygeine? Or are you an asshole to people? How's that working out for you?

Oh, but that's all superficial. OK...So what? I linked to research a while back explaining that "charm" can be learned. Moreover, people can be charmed even if they suspect you're a narcissist:

Are narcissists really more popular at first sight? When perceivers were exposed to the full amount of information available from targets’ appearances and behaviors at zero acquaintance, a significant positive effect of narcissism on popularity was found. Narcissists indeed make a positive impression on strangers. This was found for uninvolved as well as for highly involved perceivers. Thus, despite the negative interpersonal consequences of narcissism in long-term relationships, narcissists are more popular at first sight.

Have you ever met Ken Starr? Bill Clinton? Gerry Spence? You might think you hate their guts...Until you meet them. You won't hate them any longer. That's ethos.

A lawyer cannot control the facts of the case. A lawyer can control himself. You can decide whether to be a likeable person. Indeed, in every context and in every argument, the only thing we can control is ourselves.

This post is not of interest to regular readers. If you're curious, here's the score.

I'm trying to do some "white hat SEO." That is, I want to steer desperate patients and parents away from scam websites and steer them towards helpful information.

My skin is a diaster. I've always had mild eczema, but about four months ago, I had a severe flare.

People who have had a patch of dry skin have no idea what real eczema is like.

Imagine putting your hand on a hot skillet. You take your hand away. You look down, seeing a red welt.

That red welt will be with you for perhaps a few hours, or perhaps several weeks.

That welt will appear all over your body. If you're lucky, you'll have some on your back, making it hard to sleep.

You may even have some of those welts on your neck. That seems like no big deal, except when you imagine driving a car. You need to change lanes. Look left. Ouch.

Also, the welt is also going to itch. Have you ever had a bad sun burn or an infection? Remember that feeling? That's how much of an eczema sufferer's body feels.

If you scratch it, it will become a huge red ball of messiness. It may get infected.

I had to quit training Brazilian Jiu Jitsu because of five (5) staph infections, including one bout of MRSA.

You won't scratch yourself, because of your iron will? The itchiness is not like that of a scab. The itchiness is so great that not itching will send your entire body into convulsions. Watch a video of someone freaking out over a drug overdose. Or The Exorcist. That'll be your body.

Even if you don't scratch yourself, you're in trouble. I had to cut going to the gym down to 2-3 times per week. I had to cease all cardio. The water from the sweat burned my skin, causing it to itch worse.

I can't take hot showers.

When I got sick, I slept in a sweatshirt to break the fever. The fever broke, but I must've sweat too much in my sleep, because congratulations to me, here is what my body looked like:

Does sleeping on an ice pack sound restful? Well, if your eczema is so inflammed that your body feels on fire, the ice pack actually works.

Eczema is also very expensive. Even with gold-plated health insurance, I paid $500 for my last dose of drugs. I'll have spent around $1,500 this year on eczema-related stuff (allergen detergents, air filters, extra trips to laundry mat, etc.).

That's just out-of-pocket, cash money. That doesn't include days where I slept less than two hours, and am in so much pain that even driving is difficult.

It also doesn't factor in the 30-45 minutes it takes me just to apply my creams. I have to apply creams, wait for the creams to absorb, then apply moisturizers.

The moisturizers are thick. Vanicream works the best for me. Vanicream is basically Vasoline. Imagine putting that all over your body.

Wait for it to absorb. Then get dressed.

Oh, make sure your clothes are loose fitting, or else they'll stick. Then you get ingrown hairs.

When the air is really dry, an eczema sufferer has to apply Vanicream during the afternoon. If you ever walk into the bathroom and see a guy putting lotion over his shirtless body, he's not doing anything creepy. (Or is he?) 

As you can see from the pics, I'm not a small guy. I lift weights regularly, following the "no pain, no gain" philosophy. I've had my nose broken, knuckles broken, a broken foot, two concussions, 2-3 degree separated shoulder (and recurrances of said shoulder separation) and when my eye was split open, requiring stitches...I skipped the stiches.

I've never taken pain medication of any kind. When my shoulder was separated, I dealt with the pain. When I get sick or get a head ache, I don't take pain relievers.

I think it's good to keep in touch with your pain, to talk to it.

The eczema is the second worst pain I've ever felt in my life. (Sun poisoning is the worst.) A set of heavy squats has nothing on eczema. Nothing I've felt has anything on eczema.

If there were a "pain killer" for eczema, I'd probably take it.

For kids, eczema must be the worst. When there are red sores on my body, it doesn't impact my self-image. I have a sense of self, and laugh when guys at the gym give me weird looks as I apply Vanicream to my inflammed body.

For a child developing his self image, it must be hell. Kids are also really mean, and I got in a few fights in grade school when other kids called me "herpes face."

I've spent over 100 hours on PubMed and other sites researching treatment options. (When you wake up itching yourself bloody, you may as well read something, too.)

I just found a presentation that summarized everything that I found. I found it after I did my research, so I know it's legit.

Anyhow, here's an excellent presentation on treatment options for moderate to severa eczema. 

I've worked through the classics of rhetoric. In college, pre-Google days, when I learned of an obscure book on critical thinking and argument (Port Royal Logic, if you're curious), I had the rare books track it down. I photocopied every page. In law school, I watched several hours of VHS on Logic for Lawyers in the law library's AV room. I hadn't read many good books on rhetoric in years, because the best books are classics. I stopped reading the genre.

When flying, I read about an excerpt from a modern book on rhetoric. The article was in one of those Sky magazines. How bizarre, as the article was good: It listed several obscure definitions for rhetorical devices. Two years later, I bought the book. Although it has a few flaws - mainly, the author's ethos - it's one to recommend. 

What makes the book so damned good? First, it's a useful refreshed on the purposes of argument. Purpose is easy to lose track of. Yet purpose is the only thing that matters in rhetoric. Take brief writing as an example.

When drafting the last appellate brief, I went Internet style. Without even realizing it, I produced pure hydrochloric acid. When blogging, I mainly air my liver and troll people. Those are legitime uses of my time. Yet blogging isn't productive. I don't persuade you. Either you like what I write and stick around, or you turn your nose up. I've met quite a few friends and acquaintances blogging, and thus am not hating on the genre. Yet one must keep things separated.

When representing clients, it's not about my liver. It's not about me. It's about a person who has a problem. A lawyer is basically a samurai, and while being a samurai seems glamorous because you're waving a sword, ultimately it means subordinating yourself to a shogun. The client comes first, and this usually means spleens must be vented elsewhere.

The author illustrates this through a useful dichotomy: "You succeed in an argument when you persuade your audience. You win a fight when you dominate the enemy." Seems banal, but aren't all truths banal?

The audiece is a judge or jury. The audience isn't your friends who showed up in court to support you, or the media, or even really the client. The audience is the person with the power to decide your client's case. When has being an asshole - ethos - persuaded a judge or jury?

Yet often when writing or arguing, we forget to whom we're arguing. We forget the goal. The goal is to persuade the judge or jury. The goal is not to fight opposing counsel.  Some will say that a fight is often needed to persuade, yet that only illustrates that - at the margins - all dichotomies are false. Mostly, a fight is bad. Argue, don't fight.  "The basic difference between an argument and a fight: an argument, done skillfully, gets people to want to do what you want. You fight to win; you argue to achieve agreement."

That reminder is worth the price of the book and the hours reading it. But wait, there's more. (Full of trivia, Thank You for Arguing explains that "But wait, there's more..." is a dirimens copulatio - a joining that interrupts.) 

I learned something totally new, and that makes total sense and is somewhat mind-blowing. "According to Aristotle, all issues boil down to just three: Blame, Values, Choices.... The blame questions deal with the past. The values questions are in the present tense. And the choice questions have to do with the future."

At first, that seemed awkward. Chapter 3 explains the concepts in detail, and already the framework has helped me resolve some arguments. It's rare to learn an entirely new set of rhetorical concepts, and yet not even 25% into the book, I did.

The book's weaknesses are in style, not substance. First, the author seems like a horny cheese ball. He keeps throwing in references about seduction, but he strikes me as the kind of guy who doesn't get laid often. Incongruence annoys.

Second, the book is stop-and-go. Throughout the book are "Persuasion Alerts." Mid-page, the author interrupts to make some point, and the point isn't always relevant. It can be jarring.

Even so, Thank You For Arguing gets my highest recommendation. It's what I call a "reputation bet" book. If you don't like it, never listen to my book recommendations again. We're on different wave lengths. 

It condenses centuries of logic into a helpful set of notes. Even if you've read the classics, this "Cliff Notes of Logic" will refresh and edify. Enjoy.

Of course it's a bad idea to hire someone based on one closing argument. That said, given the shit that passes for advocacy these days, and given the nonsense read on legal marketing blogs, one cannot help but notice Jacquelin Goodman. Read her closing argument in a murder case, and tell me you wouldn't consider hiring her. Here, incidentally, is her law firm website. (P.S. I don't know her, or anyone who knows her, and I'm not being asked to promote her. She just struck me as someone worth knowing more about.)

Vice is an online magazine for perverts and degenerates, and so seeing this interview with stuffed shirt Bryan A. Garner was surprising. I've read all of Garner's books, and just downloaded his Modern American Usage to my iPad. (This wasn't a great idea, as finding entries on the Kindle version of GMAU is cumbersome. It's still preferable to lugging the paper version around the dog park.) When a law student asked me for advice on writing, I told him to read everything Garner has written. In 2002, a famous trial lawyer told me, before he'd ever let me work for him, that I had to read The Winning Brief.  Circle of life and blah-blah-blah.

The interview is good, even if you're not a stuffed shirt. However, Garner gives one piece of medicore advice:

Vice: Any more concrete advice [on becoming a better writer]?

Garner: You have to write a lot. You ought to keep a journal and write a lot of letters, and I mean old-fashioned handwritten notes. 

Probably it should be must write a lot, although that's not my quibble. Despite C&F's slapdash style, I take writing seriously. I started the blog to force me to improve my writing. Since I have enough paid writing to keep me busy, I don't have the time for styling at Crime & Federalism. During law school I had the time, and my earlier blog posts are my most well written ones. 

The best thing a youngling can do is start a blog. Write every day. At first it will be, as Hemingway said of all first drafts, shit. Eventually you'll find your style.

I used to be a notorious letter writer. I once did the Tony Robbins thing by writing to everyone who inspired me. I even thanked my high school English teacher. That's how, in 2001, I was in California but became good friends with Norm Pattis, who was all the way in Connecticut. This was in the era of e-mail but years before legal blogs.

Writing old-fashioned letters might not be a mediocre idea after all.