4.
If a Jet Crashes in a Forest . .
. Metaphysics has a brush with
the law.
5.
How Not to Hire a
Trial Lawyer. Don't take my advice --
please.
6. Hot Lunch.
Antitrust law as war metaphor.
7. Vice President in
Charge of Going to Jail.
Cartoon.
William Faulkner,
left, accepting 1949 Nobel Prize for
Literature
Did You Know?
My hero William
Faulkner wrote pretty good stuff. He
even won a Nobel for it.
The rewards of newsletter-editing don't compare of
course with getting a Swedish medal. Nor do I
imply any resemblance between Faulkner's writing
and my inviolable indestructible propagation
of dying words that mean more and less than I
intend but exactly what I should've expected if I'd only
known about it. No.
But I do get occasional fan email, including these
for last month's issue:
"Very entertaining and informative. Great
work." M.D., Atlanta, Georgia
"Educational and entertaining!" J.G.,
Adelaide, South Australia
"I look forward to reading your 'Notes.'"
M.M., San Jose, California
"I love it. . . . Law-Impaired Rambo Boy is a
delight." S.M., Summitt, New Jersey
"Down-right outstanding." S.F., Beaumont,
Texas
Thanks, guys!
Winner of Grand Prize Advocatus Diaboli law
newsletter contest.
Last month's
Law-Impaired Rambo Boy got such good reviews that I've
written more fake lyrics -- these to the tune of the
theme song from Rawhide
(1959-66), which featured Clint Eastwood as Rowdy
Yates:
I don't know much about ontology.
I can't distinguish it from epistemology or metaphysics
or even existentialism. I think that they all have
something to do with philosophy.
I know a lot more about antitrust
law. For instance:
Antitrust law offers a concept that may
work in warfare -- the kind that shoots real bullets,
drops actual bombs, and lobs non-figurative missiles. In
antitrust law, raising rivals' costs means doing things
that cost Business A little but a competitor, Business
B, a lot.
Mattel released Rock'Em
Sock'Em Robots in 1966. Red Rocker just knocked
Blue Bomber's block off.
William
of Ockham lived in extreme poverty near East
Horsley of 14th-century Surrey, England. A
Franciscan friar, he thought a lot. He tried so
hard to figure things out, in fact, that he decided not
to strain his brain so much. Simple explanations
usually trump complex ones, he concluded -- we may
assume after many hours of devout contemplation and
a lot of ale-and-porridge suppers.
William's view of the world has made his village
famous. "Ockham's razor" -- which some call ontological
parsimony -- refers to William's conclusion
that an explanation with few assumptions will, more
often than not, prevail over an account with
many.
What the heck does that mean, you say? A little
abstract for your liking? Don't feel like the Lone
Ranger.
But let's see if we can put some meat on old Ockham's
bones. And let's do try to tie his razor into
commercial litigation somehow.
Party A breaks a contract to supply widgets to
Party B. We want to know why. Most of
us would assume, without knowing anything more,
that a business reason motivated the breach
-- perhaps that Party A lost money on the
contract. We wouldn't jump to the conclusion
that Party A's widget factory burned down, that the
president of Party A wanted to avenge a slight that
he suffered in high school at the hands of Party
B's bully president, or that Martians unionized
Party A's workers and took them out on strike.
William of Ockham would say we did right by not making
more assumptions than necessary to explain Party A's
behavior.
That doesn't mean, of course, that the widget
factory, in fact, didn't go up in flames, that Party A's
president didn't want to get back
at his teenage tormentor, or that an alien Norma
Rae didn't agitate for higher wages. Those
things may have happened. But Friar William
reminds us not to assume, without cause, that they
did.
Trial lawyers intuitively use Ockham's
razor when they present a case to a judge or
jury. They prune unnecessary assumptions.
They slice out the non-essential, sharpen
the simplest explanation that favors their clients,
and slash away at gaps in the other side's
story. They may have never heard of William or
Ockham or ontological parsimony, but their instincts
tell them that Ockham's razor cuts deep
indeed.
Jet wing that lost an engine.
Happily, three remained.
A tree that falls in a forest makes a sound even if
nobody hears it. So I believe. But an expert
witness once disagreed with me on that point.
The case involved a breach of warranty claim against
the seller of two Boeing jets. The seller promised
to convert the jets from passenger configuration into
cargo-carrying mode. But the outfit that performed
the conversion cut corners. They failed, for
example, to bolt the floor to the bulkhead that
separated the cargo area from the cockpit. In a
rough landing, the cargo containers would have pushed
through the bulkhead and squished the flight crew,
who would then cease to exist.
The seller warranted that the conversion would make
the jets "airworthy". The Federal Aviation
Administration deems an aircraft unairworthy if it
doesn't comply with applicable FAA regulations.
Nobody disputed that the jets violated FAA rules on
cargo conversions. We claimed that the
failure made the jets unairworthy, in breach of the
seller's warranty.
The seller's expert disagreed. He testified
that violation of FAA requirements doesn't make an
aircraft unairworthy unless the operator knows
about the infraction. He said that
the defective condition of the jets didn't
matter so long as the operator didn't know about
it.
I asked if he considered a jet whose engines had
fallen off "airworthy" if the operator didn't
realize the impossibility of flight. He said
yes!
Sensing an ontological
crisis that might tear the fabric of the universe, I
tried the same question differently. If a jet
crashes in a forest with no one around to hear it,
I asked, does it make a sound?
Good thing he refused to
answer. By his logic, if the operator
doesn't know the jet can't fly, it really
can. I don't think I could've have
handled that.
Saddam Hussein
demonstrates the importance of selecting the right trial
lawyer.
The guy at left wishes Saddam wouldn't
point so much.
Now for some terrible
advice about selection of trial
counsel.
1. Hire the firm. Choosing a brand
name firm, instead of an individual lawyer, saves you
time and effort. It also covers your rear
if the case goes horribly wrong. Your
management and shareholders will thank you!
2. Don't talk about fees. As the saying
goes, if you have to ask what something costs, you can't
afford it. Plus you make you and your company look
cheap. How embarrassing!
3. Don't ask about win/loss record. That
gets a little personal, don't you think? Past
performance doesn't guarantee future results anyway.
4. Personality doesn't matter. Do you
care about your doctor's personality? Whether he
makes time to see you, listens to you, smiles at you,
treats his staff well? Does good rapport
between you and your doctor really affect his
competence? I didn't think so!
5. Insist on paying hourly. A trial
lawyer working on an hourly basis has an incentive to
maximize billings, but what will you do with your time
if you don't have to fly spec his statements every month
and fuss at him for sending that extra associate
to a deposition?
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