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Okay, we didn't win an Academy Award. Alan Arkin did though.

Did You Know?

Chambers USA: America's Leading Business Lawyers (2007) named eight Susman Godfrey partners as "Leaders in Their Field" (by category and in alphabetical order):

Antitrust

Lee Godfrey
Harry Susman
Steve Susman
Your Editor

Energy & Natural Resources: Dispute Resolution

Lee Godfrey

General Commercial Litigation

Lee Godfrey
Neal Manne
Kenny Marks
Steve Susman
Mark Wawro
Your Editor

Intellectual Property

Steve Susman

Securities Litigation

Terry Oxford
Kenny Marks

Way to go, guys!

* * * *

In other firm news, the American Law Institute elected Your Editor to its Restatement of the Law-publishing membership. He joins partners Steve Susman, Lee Godfrey, and Marc Seltzer as an Institute member.

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Cap'n Horatio Magellan Crunch. Your Editor has enjoyed the Guppy commander's cereal since before 1970.

Cappin' Crunch

Remember the fun we had in first-year Torts withBoomer v. Atlantic Cement Co. -- the 1970 New York Court of Appeals decision that shocked environmentalists when it refused to enjoin a cement plant from spewing dirt and smoke onto neighboring land? Recall that the Court instead ordered Atlantic Cement to pay "permanent damages" to Oscar Boomer and other property owners? And that the Court thus (according to the dissent) "licens[ed] a continuing wrong"?

Your Editor didn't either -- until a pro bono case (see Hot Lunch below) heightened debate over mandatory reductions of greenhouse gas emissions and a "cap-and-trade" regime. The controversy, Your Editor imagines, echoes the economic issues in Boomer . Pollution inflicts economic harm on people whom it sickens, whose property it devalues, and whose environment it degrades. The polluter usually doesn't bear these costs, and neither do the buyers of its products. The market thus fails to reflect the full cost of making the goods or services into their price.

A tax on greenhouse gases aims to correct the market failure. If a company pollutes a lot, it pays a lot. If it chooses cleaner production methods, it pays less.

Cap-and-trade describes one way to internalize pollution costs. The method caps the amount of greenhouse gases that a producer can generate but also allows it to buy credits that permit it to exceed the cap. The producer gets the credits from a producer whose emissions fall below the cap.

And it all started with Boomer. Sort of.

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Hot Lunch

Susman Godfrey recently concluded its pro bono representation of a coalition of Texas cities that opposed the efforts of utility giant TXU to build eight coal-burning plants using old technology. The coalition successfully intervened in administrative proceedings on TXU's permit applications and presented evidence supporting cleaner technology. TXU withdrew the applications after announcing a private equity buyout and a new environmental direction, including advocacy for a tax on greenhouse gases. See press releases here and here.

What the hey -- Blawgletter

Sisyphus, Catch-22, and The Walk of Life

Capt. Yossarian (Alan Arkin) has an arboreal discussion with 1st Lt. Milo Minderbinder (Jon Voight) in Catch-22 (1970).

Mythical Sisyphus rolls a boulder up an incline. An instant before the rock reaches the top, his strength fails him, and the boulder comes back down. So he pushes it again. And down it goes. Up and down, over and over.

In Catch-22, the novel by Joseph Heller, B-25 bombardier John Yossarian claims insanity as a way to get out of suicidal raids during World War II. The military refuses to discharge him, reasoning that anyone who claims craziness couldn't possibly suffer from it. Catch-22.

And rock band Dire Straits celebrates Johnny Mathis with The Walk of Life (1986). You remember: "He got the action, he got the motion/Yeah, the boy can play/Dedication, devotion/Turning all the night time into the day/And after all the violence and double talk/There's just a song in the trouble and the strife/You do the walk, you do the walk of life."

What do these three vignettes have in common aside from the fact that Your Editor likes them? More to the point, how do they concern business trial law? Truth to tell, they don't -- unless you agree with Socrates about the persuasive power of analogy.

An analogy draws a comparison -- a brief and imprecise one -- to connect with the listener's experiences. For example:

• Has your client worked long and hard with little to show (think Sisyphus)? Does he deserve a reward -- with just a little help over the hump?

• The crazier Yossarian acted, the saner the Army considered him. Your client may have wandered into a no-win situation, too. Catch-22, man.

• Talent and grace appeal to everyone. The Walk of Life tells about a man with both. Yeah, the boy can play.

Don't worry about seeming precious, silly, or twee. You will. But do make sure that you believe that the analogy fits. Conviction will carry you. As it did Socrates.

Barry Barnett, Editor

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Misunderestimating Opponents

Lucius Aemelius Paulus and Gaius Terentius Varro misunderestimated Hannibal at Cannae (216 B.C.). Having crossed the Alps with hephalumps, Hannibal's 50,000 encircled and routed 80,000 Romans.

Speaking of strange people, a high school football coach relished reassuring our team about the upcoming powerhouse opponent with quips like "they may be strong, but they're fast", "they may be quick, but they're smart", and "they may have won all their games, but we haven't". He also spelled "helmet" with an "n" before the "t". We called him "Blob" (after a character who tried to steal Super Sugar Crisp from Sugar Bear).

At least coach didn't minimize the worthiness of our opponents, and he discouraged us from doing so. For that, Blob, I sincerely thank you.

But does Blob really deserve credit for promoting caution and doubt? Did lowering expectations actually help? Should Blob have learned to spell better?

Your Editor will not hazard answers to these eternal questions. But he will remind gentle readers of a saying of the Buddha: "Existence is suffering, and the cause of suffering is desire." As trial lawyers, we desire to win. We suffer slings and arrows that our adversaries throw. And in the midst of fighting we may even come to disrespect the other side.

Huge mistake. Consider, from childhood, the story of the hare and the tortoise. Or David vs. Goliath. The Miracle on Ice. Braveheart. The invincible Spanish Armada. Hannibal at Cannae. Think about how people gravitate to the underdog. Visualize how arrogance alienates them.

Trial lawyers with abundant personal regard -- i.e., all of them -- tend to underestimate their opponents or overestimate themselves. But the best ones have two key traits: (1) the intellect to adapt to surprises and (2) the courage to follow what Carl von Clausewitz's On War (1832) calls the "faint light" that intellect produces. Smart savages.

"War is the province of chance", says Clausewitz . Don't worsen the odds by misunderestimating your opponents. And strap on that helment!

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Roundup

A clickable selection from the pages of Blawgletter:

• Fifth Circuit Requires Good Health Before Death

• Lie Detection

• Annals of Antitrust Enforcement: Where Have All the Price-Fixers Gone?

• Clothes, but No Infringement

• A Supreme Court Win for Jury Trial?

• @*$# Civility -- I Gotta Win!

• Five More Trial Tips

• Liberal Media Bias -- or Just Media Bias?

• Ha, Ha -- BANG!

• Owls of Protest May Save Hooters' Habitat

• Canola Oil Patents Go into the Grease

• Grumpy Grundfest and Crawfishing Cox -- Co-inky-dink?

• Bad News for Gilligan? Texas Supreme Court Denies Homestead Status to Boat

• Fifth Circuit Holds MDL Judge Omnipresent

• Frosty Bites Nips Dippin' Dots in Patent Case

• First Circuit Says "What Part of Nonrefundable Did You Nonunderstand"?

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