2020:  As Bad As We All Say?

We are finally about to turn the calendar to place 2020 in our rear view mirror.  With a collective sigh, we all say “Good riddance!”

How shall we remember 2020?  Pandemic.  Lockdown.  Closed schools.  Shuttered businesses.  West Coast wildfires.  Social distancing.  Cancelled or postponed weddings, events and vacations.  Lost proms and graduation celebrations.  Hurricanes.  Illness and worse.  Tens of millions lost jobs.  Toilet paper shortage.  Everything soaked in hand sanitizer.  Did I mention pandemic?

Are there any reasons to celebrate 2020?  Has anything “good” come out of this mess?  I was recently asked to identify positives from 2020.  Normally, if challenged with such a request, I could rattle off numerous facts and circumstances to fit virtually any category.  Finding the “good” in 2020 presented more of a challenge.

With full and complete acknowledgement of the heartache and difficulties dominating every aspect of 2020; with sympathy and empathy for so many who suffered through challenges or losses in 2020; and with recognition that COVID-19 will not magically disappear on January 1, 2021, I humbly offer an attempt to find some positives from 2020.  Upon reflection, these few nuggets of good may assist us all in maintaining a better perspective in life and may even, in part, remind me how to remain an effective mediator.

Getting to Know Your Neighbors

Where I grew up, you knew your neighbors and they knew you.  It was normal and routine to spend time with your neighbors and in your neighbor’s house.  Some neighbors were even part of your extended family whether or not so labeled.

Neighborhoods and being a neighbor changed over the last many decades.  While many neighbors are cordial, we have generally grown distant in our relationships.  For whatever reasons, we no longer are dependent on our neighbors as we used to be a generation ago.

In our neighborhood, the COVID-19 lockdown last Spring resulted in neighbors better getting to know each other with new relationships blossoming.  Based on informal inquiries of others, this phenomenon was not limited to our neighborhood but appears broad based.  We did not suddenly become keenly interested in the well-being of our fellow humans.  Rather, we went for walks.

Gyms were closed.  Many parks and public areas were closed.  People were stuck inside and sometimes stuck together.  We wanted and needed an escape and we wanted exercise.  We took walks during the lockdown.  As creatures of habit, we often took these walks at about the same time each day.  We smiled and waived at our fellow walkers on their mutually timed journey.  We eventually started socially distant conversations with each other.

We lived in the same house for years on end, and yet discovered that we really did not know so many of our neighbors.  We shared interests with these neighbors.  We shared experiences regarding careers and children.  We got to know each other through these walks.  One couple set up chairs in their front yard on Friday evenings for socially distant Happy Hour gatherings.  That Happy Hour grew over the weeks and continued even after the lockdown mandates began to ease.

Since the lockdown, we stop and talk to each other instead of racing in and out of the subdivision.  We have become friends.  We are more of a community and less a collection of houses.  That is a good thing.

Not Taking Things for Granted

We talk about the “new normal” whatever that may prove to become after the pandemic.  Social distancing, face coverings, temperature checks, and no hand shaking may all become part of the fabric of our daily lives.  Postponing sporting events, working remotely and virtual visits by grandparents may become no big deal.  But for now, so much of what we must do to protect ourselves and our families from the virus still feels strange.  We yearn for the “old normal”.

Why do we think that the “old normal” was so good?  You will easily recall that many of us complained about so much before COVID-19 ever entered our vocabulary.  We had traffic jams.  We had annoying co-workers.  But we also had our favorite coffee shop and pizza place where they knew your order before you even spoke.  We could just run to the market for an item and not even think whether it would be in stock.  We could just do the simple things like go to a movie, drop by a friend’s place who was having some friends over, or actually dine in a restaurant without any forethought.

This “old normal”, in hindsight, is like your favorite pair of jeans.  They are broken in.  They fit.  You feel good in them.  Perhaps above all else, they are comfortable.  We were comfortable with the “old normal” and now spend all of our time beyond our comfort zone.  We want back our favorite jeans.

Perhaps COVID-19 has taught us to not take for granted all the basic things we did, and could do, under the “old normal”.  If and when we can get back to the movies in any normal sense, spend a minute to take in the theater itself; think how the smell of insanely overpriced popcorn brings you back to a previous time; and actually enjoy the 20 minutes of coming attractions.  When the nearby movie goers inevitably start chatting on their cell phones, remind yourself that the “old normal” was not always perfect, but you nonetheless missed it.

Whether it is the movies, going to a ball game, or just laughing with friends at a local watering hole, we should no longer take for granted the place, time, or especially people in our lives.  That is a good thing.

We Can Work from Home

Prior to the pandemic, many employers remained terribly fearful of work from home arrangements.  Some employers were concerned that employees would slack off.  Efficiency and productivity would suffer.  Employees also feared for their jobs and advancement with work at home.  Their contributions would not be clearly visible to others.  If a call were missed or email not responded to immediately, the employee would assume that the boss believed the employee to be focusing on anything other than work.

COVID-19 forced work at home on so many in a variety of fields.  By and large, we figured it out.  We navigated the bumps in the road and quickly mastered Zoom meetings.  Children or family pets interrupting virtual meetings did not become career ending matters, but humorous side notes with everyone chuckling and thinking “Been there.”

All those positions which previously had been deemed essential or critical to be on site have been properly and fully accomplished remotely.  Large corporate campuses and office buildings may soon be relics.

In the legal arena, many courts migrated to remote hearings.  Mediations and arbitrations fairly rapidly became on-line events.  I admit to having to overcome my own prejudices against Zoom type mediations and arbitrations.  I had been an advocate of in-person participation as I believed so much more could be accomplished face to face.  I was wrong.  Based on reported success rates by mediators, and my own experiences, virtual mediations remain as successful as in-person efforts.  I anticipate that Zoom mediations and arbitrations will be the norm after the pandemic.

For all those home-based workers, I appreciate that there may have been (and may still be) some rough edges in establishing the dedicated work from home area within the household and establishing work time boundaries among others staying at home.  Mostly, however, we have adapted.  Our commute is measured in a flight of stairs or the length of a hallway.  When we stop work, we are already home.  That is a good thing.

Dogs Are More Happy (Cats Not So Much)

My wife also works from home during this period.  She has a dedicated room for an office which she rarely vacates during business hours.  She is amazingly dedicated.  What has changed from her work office to home office is replacement of a candy jar for co-workers with a dog treat jar for our furry friends.  At 7:59 a.m., she begins her one minute commute to her home office with coffee and water in each hand.  Both our dogs dutifully follow to her office where they know they will receive treats.  The dogs take their pre-morning naps, stretch, get more treats and settle in for their morning naps in her office with Mom right there.  They are in Dog Nirvana.

If my spouse returns to the office setting, our dogs will be heartbroken.  My wife explained to her boss that if they ever do return to the office, she will request therapy – for the dogs – to assist with their adjustment and abandonment issues.  In talking to neighbors, they share similar stories how their dogs have developed attachment issues during 2020.  For our canine friends, 2020 has been something of a banner year.  That is a good thing (but may come to an end).

DIY and Household Projects Actually Have Gotten Done

Since the pandemic hit and our lives have become encapsulated in our bubble, we have taken on and finished projects around the house.  In the past, we talked about projects quite often and lamented how we never actually addressed the issues.  Now, our attic is cleaned out.  I mean clean as in you can see the floor, there exist dedicated walkways or paths to circumvent the remaining limited stuff, and items are put away in bins or boxes which are actually labelled.  Two bathrooms and one bedroom have been repainted.  The flowers and plants around our yard never received so much attention with no plant wilting from the lack of watering.

The Spring lockdown encouraged many to perform real Spring cleaning.  On trash day, you could tell when a neighbor has cleaned out the garage, attic or the room of a child who moved out long ago.  We have cleaned up and spruced up.  That is a good thing.

As a mediator, when testing the positions of parties and their resolve, it is quite easy to focus on the negative or risks for the parties.  Mediators, including myself, may suggest that a) there will be a low percentage of success for the claim being asserted; b) a jury in this particular jurisdiction would be unlikely to accept the argument being presented; c) the judge would never allow in the evidence so vital to a claim; and d) the litigation costs would well exceed claim worth.  The list of negative issues to be raised is almost as endless as the negative things we can bring forth about 2020.

At times, it is much more difficult to focus on the “good” for claims, but such positive factors always exist.  Finality to a litigation through settlement may hold intrinsic value by itself.  Resolution, even if not as expected, may allow parties to move on to other endeavors in life.  For businesses, settling a lawsuit may assist in cleaning up a balance sheet or reduce necessary reserves.  As with finding “good” in 2020, I may need to think through the issues a little harder, but I know it can be found.  It just takes work and effort to focus on the positive.

So, has 2020 been a dreadful year?  Absolutely!  Yet even in challenging times, we can find “good”.  In part, the Holidays and New Year’s include times of reflection.  As you look back, try to find your own “good” that resulted from 2020.  If you cannot find anything, go clean your attic or get a puppy and you will discover that “good”, indeed, still exists.

Our Dirty Game

We have a sitting President and a Vice President heading up opposing tickets.  These candidates possess experience on the world stage.  They understand the processes to advocate for and push through domestic policy considerations.  Yet, both candidates and their political parties can apparently agree on only one thing:  voting for the opposition would certainly ruin the country.

Instead of recognition that the opposing candidate is at least minimally qualified to hold the Office of President of the United States of America, we see personal attacks on candidates and their family members.  Instead of robust debates on issues confronting Americans, we suffer through juvenile name calling.  Instead of substance, we have countless surrogates making unfounded allegations about the other side.

If you try to cut through the vitriol, we see how one side quickly coalesced behind its candidate with no challengers.  We have a party well-organized at the state and local levels.  We have a party opposed to strong federal power with a candidate advocating that the federal government leads an attack on individual rights.  The candidate favors legislation making it more difficult for immigrants to become citizens of the U.S.  This candidate believes  that legislative efforts at the state level are desperately needed to replace potential adverse popular vote totals.

We also have a candidate that survived challenges from within his own party to secure the nomination.  In run up to the nomination, the candidate was charged as being too moderate of a voice and not sufficiently progressive to take the country in a bold, new direction.  The candidate and party argue that federal government plays a critical role in responding to issues of national importance.  This candidate encourages voting by all eligible citizens as that process then selects the electors, not partisan state legislatures.

But how do you peel away the hyperboly and outright lies to discover these positions when one candidate asserts that “we would see our wives and daughters the victims of legal prostitution” if the opponent were elected?  A candidate was deemed “repulsive” and “behaved neither like a man nor like a woman but instead possessed a hideous hermaphroditical character.”

Of course, I am describing the Presidential election of 1800 between President John Adams and Vice President Thomas Jefferson.  Two of our Founding Fathers make the current mudfest between Trump and Biden appear as child’s play.  Indeed, the Presidential election of 1800 is often referred to as the Revolution of 1800 for elections and the birthplace of the modern negative campaign.

Perhaps we can learn about modern campaigning with a brief review of highlights, or lowlights, from the Adams-Jefferson battle.  Reference to a few other campaign smears over the years may assist in placing the current mess better in perspective, although the current campaigns do appear different in one aspect.

A good starting point for analysis of the Revolution of 1800 is a few years earlier with George Washington’s Farewell Address.  Washington noted some pitfalls in a strong two party system.  He cautioned against partisan divides resulting from a two party system, especially the impacts on such a young republic still seeking to gain its footing.

Fast forward four years later and we experienced the dirtiest Presidential campaign in the history of U.S. politics.  So much for the sage advice of Washington.  The 1800 campaign pitted former close friends and allies in the rebellion against England.  Adams and Jefferson were instrumental in unifying the colonies.  They worked tirelessly together to nurture the new country.  They contributed to crafting the U.S. Constitution.  Each served in Washington’s administration.  BFFs for certain — until politics interfered.

Jefferson became the voice and symbol of strong states’ rights and limited federal involvement.  Jefferson opposed deficit spending to broaden federal activities.  He opposed taxes to support the expansion of the U.S. Navy and Army.  Adams remained the leader of the Federalists who wanted stronger centralized authority as the young country began to expand.  The Federalist posited that the federal government played a key role in unifying the nation.

The Federalists, however, remained disorganized in 1800.  Alexander Hamilton lead a faction of the Federalists who argued for even greater centralization of power at the federal level.  To Hamilton, the Federalists would be “settling” for Adams as a candidate who would not push the Federalist agenda far enough.  Can anyone say Bernie Sanders?

These fundamental disagreements concerning the role of government remained a wedge between Adams and Jefferson until July 4, 1826.  Adams, age 90, and Jefferson, age 83, each passed away on that date within hours of each other.  The last words of John Adams:  “Thomas Jefferson still survives.”

These well-educated, sophisticated, brothers in arms, and architects of the republic chose the path of extreme mud slinging when campaigning for the highest office in the land.  A Jefferson Presidency would create a nation where “murder, robbery, rape, adultery and incest will openly be taught and practiced,” according to Adams.  Really?  Jefferson advocated that school curricula would include “Rape, Adultery & Incest, 101”?  Perhaps robbery and murder could be taught at trade schools.  

Not to be outdone, Adams was often presented as a rageful, warmongering liar.  The fact that a perpetually angry champion of war may appear inconsistent with one who is supposedly a hermaphrodite did not slow the personal insults and attacks.

The election of 1800 witnessed the first public campaigning for President.  Candidates quickly turned to the most powerful media tool available — newspapers — to spread their messages.  Many newspaper editors and journalists were either already reliably partisan or became such in these processes.  It turns out that Jefferson personally secretly funded one such influential journalist, James Callander, to ensure that Callander’s incendiary, anti-Adams pamphlets would be published in great numbers.  Adams  offered assistance to the President of Yale University who then used all available resources to spread the rumor that wives and daughters would become prostitutes under Jefferson. Imagine if they had access to Facebook and Twitter.

Yet, somehow, the nation survived.  The young country was not ruined with a Jefferson Presidency and it surely would not have been ruined with a second term for Adams.  The tied voting of the Electoral College for the 1800 election remains a separate story in and of itself.  Depending on the results of the Biden-Trump election, we may need to dig deeper on that topic in a separate article.

Negative campaigning and personal attacks have been a staple in Presidential campaigns since 1800.  Most negative campaigning pales in comparison with the personal attacks lodged in the Revolution of 1800.  Nonetheless, a few gems stand out over the years.

Perhaps the art of negative campaigning rests firmly in the DNA of the Adams.  The second dirtiest Presidential campaign remains the 1828 contest between John Quincy Adams and Andrew Jackson.  The election headlines in newspapers included sex, adultery and pimping.  General Jackson’s wife, Rachel, had been previously married.  The Adams campaign openly questioned  whether Rachel had been properly divorced before tying the knot with Jackson.  The allegations proved sufficient for Adams to charge Jackson as an adulterer and Rachel as a bigamist.

Adams had served as Ambassador to Russia.  Jackson charged Adams with providing an American woman for the pleasure of the Russian Czar.  Jackson also used the partisan press to his advantage.  Jackson wrote to newspaper editors providing instructions how to counter attacks from Adams and provided canon fodder for additional, unfounded attacks on Adams.  Good thing our current candidates do not posses any close relationships with media outlets.

It should be noted that no evidence exists to support the claim that Adams pimped while divorce records for Rachel Jackson could never be located.  Of course, facts do not matter when there exists a salacious story.

Attack ads and negative campaigning obviously continued up to more current times.  In 1964, Lyndon Johnson used the “Daisy” ad to portray Barry Goldwater as a risk to bring about nuclear war.  In the ad, a little girl is seen picking petals from a daisy as a voiceover counts down to zero.  The camera zooms in to the girl’s eye as a nuclear explosion erupts at zero.  LBJ’s voice then asserts “all of God’s children can live, or go into darkness.”  Ouch.

In 1988, George W. Bush unveiled the infamous Willie Horton ad against his opponent Michael Dukakis.  Willie Horton was a prisoner in Dukakis’ home state of Massachusetts.  Horton was furloughed on weekends from prison as part of a program to reintroduce certain prisoners to society.  On one furlough, Horton kidnapped a young couple, stabbed the boy and raped the girl.  The ad walked through the events and ended with “Weekend prison passes.  Dukakis on crime.”

At least a campaign could argue that these modern ads attacked positions on issues and not the person.  We could substitute plenty of other examples of personal attacks.

Which brings us to to 2020.  By any objective analysis, the vast majority of personal attacks are launched by Trump himself.  Note:  I take no issue on the politics and present these points for consideration independent of political concerns.  The claims of “Sleepy Joe” and senility have been a staple in Trump’s arsenal for months.  Trump recently added claims that Biden is on drugs and committed treasonous acts while Vice President.  As with prior Presidential campaigns throughout our history, no evidence in support ever has been produced by Trump’s campaign beyond the assertion “People are saying. . .”.

What appears different about 2020, however, are the attacks by Trump on people and institutions well beyond his opponent.  Last evening, Trump held a rally in Erie, Pennsylvania.  He framed the election as his personal persecution.  Trump used the now routine attacks against Biden and his family members.  Notably, Trump also personally attacked the following:

—  Lesley Stahl of 60 Minutes;

—  Dr. Anthony Fauci;

—  Commission on Presidential Debates;

—  U.S Supreme Court;

—  Kristen Welker (upcoming debate moderator);

—  “Crooked Hillary” (an oldie, but a goodie); and even

—  U.S. Attorney General Bill Barr for failing to bring criminal charges against Trump’s opponent.

Both the Trump and Biden campaigns utilize negative ads on issues.  Nothing new there.  These third party personal attacks are different.  We should recognize that personal attacks remain part of the fabric of Trump’s approach in general in almost any circumstance (“Liddle Marco”, “Lying’ Ted”, “Low Energy Jeb”, “Shifty Schiff”, “Cryin’ Chuck”, “Little Rocket Man”, . . .).  Maybe those are just the stripes of that zebra.  It makes more sense to believe that some political motivation or calculation goes into decisions of whether to launch such attacks.

What do these third party personal attacks gain?  Cheers in response at rallies provides some level of immediate gratification.  These attacks may provide soundbites for analysis by the 24 hour cable news channels.  The attacks support Trump’s perpetual claim that he is the victim.  The attacks provide cover to blame others if the election does not prove successful for Trump.  Of all the things these attacks on third parties gain, they do not appear to gain votes for the candidate.  How these attacks are viewed with post-election hindsight will be an interesting study.

Returning to the personal attacks on each candidate, we can say that such attacks in 2020 have crossed lines of decorum and decency.  The personal attacks are clearly juvenile in nature.  The personal attacks do deflect from the candidates addressing issues of substance which is a disservice to all voters (and perhaps why they are used).  But to cast the 2020 election cycle as the dirtiest campaign?  We do not find ourselves (yet) met with entirely unfounded assertions of murder, rape, incest and pimping.  The republic survived before and should be able to weather this current shameful storm we call a Presidential election campaign.

One lesson the candidates can take from the history of U.S. Presidential campaigns is the following:  very personal attacks on an adversary rarely, if ever, move the political needle.  Most voters appear to shrug off these points.  Compare personal attacks to negative attack ads on important issues for a different result.  The Daisy ad and Willie Horton ad both crossed the line wherever the line was drawn.  Both were amazingly effective at sending a clear message about an opponent.  Both ads ultimately defined each Presidential election.  Stick to the issues if you want to gain traction among those who count — the voters.  Now, ignore the dirt and get out to vote.

Path to Redemption?  Perhaps Not.

After a year of denying and fighting the charges, actor Lori Loughlin and her husband, Massimo Giannulli, finally plead guilty to conspiracy charges in the college admissions scandal.  In accepting the plea deal offered by both the prosecution and defense, the judge noted: “There is no mystery about the outcome” of the case.  Indeed.

To anyone who followed the college admissions scandal from the very beginning, the evidence was stacked against the wealthy parents who so willingly paid Rick Singer and his organizations for assistance to get their children admitted to targeted, elite universities.  As soon as arrests were made and charges brought, prosecutors acknowledged that Singer had been cooperating with authorities for months.  Singer detailed the scam, turned over documents and even recorded conversations with complicit clients.

In accordance with the plea deal, the judge sentenced Loughlin to two months in prison, two years of supervised release, 100 hours of community service, and a fine of $150,000.  The judge sentenced Giannulli to five months in prison, two years of supervised release, 250 hours of community service, and a fine of $250,000.

Rick Singer’s scheme played on the fears, egos and greed of the famous and wealthy.  For a hefty fee, Singer promised assistance which he referred to as “coaching” to secure desired college admission for prospective students.  Singer had two paths: academic achievement and athletic achievement.  This scam succeeded with prospective students themselves demonstrating no academic or athletic prowess.  Like most everything else in their privileged lives, others did the work for these teens.

On the academic track, Singer would counsel parents in how to secure extra time for their children to take the SATs or ACTs by fabricating medical conditions.  Singer then arranged for his team members to serve as the moderators overseeing these smaller groups of test takers.  The moderator would then review and correct the exam answers on behalf of the subject student before submitting the test.  Alternatively, a professional test taker would simply take the SAT or ACT on behalf of the student to secure the desired score.

For athletics, Singer bribed a number of college coaches, sometimes with seven figure payments.  The coaches would then push through the applications of the necessary student-athlete for that particular sport.  However, these students had never participated in the underlying sports, including track and field, tennis, and rowing, among other sports.  Once admitted, the “student-athlete” never participated in any aspect of the sport.

For a more detailed account of Singer’s operations, the blind willingness of the wealthy to participate, and the unrestrained greed to have bribery payments flow through Singer’s “charity” so as to qualify as charitable tax deductions, see my prior blog article at: httpss://geigerattorney.com/no-limit-wealth-power-college-admissions-scandal/

Lori Loughlin and her husband opted for the athletic option to get their daughters into USC.  As the rowing coach was already on Singer’s payroll, Laughlin’s daughters needed to pose as rowing athletes.  In addition to doctored resumes, the daughters posed for photographs on rowing machines at a gym.  Singer took these photos and transferred the daughters’ images to competitive rowing events.  Admissions and even scholarships fell into place.  Singer’s fee to Loughlin:  $500,000.

Side Note 1:  Lori Laughlin’s daughters dropped out of USC even before the college admissions scandal broke.  One daughter famously bragged on social media prior to attending USC that she was looking forward to college for the tailgating party experience.  Maybe Singer could have offered different “coaching” in this instance.

You may recall that another high profile actor had also been charged in Operation Varsity Blues (FBI’s name for the scandal) — Felicity Huffman.  In contrast to Loughlin, Huffman immediately acknowledged her own wrongdoing, issued public apologies to her daughter, her family, educational institutions, and other parents and prospective college students she may have harmed by using her privilege to advance her daughter at their expense.  Huffman paid Singer $15,000 for a proctor to correct her daughter’s SAT responses before submission.  Huffman received a prison sentence of 14 days and was released after 10 days for good behavior.

Side Note 2:  Huffman’s daughter retook the SATs, absent assistance, and now attends Carnegie Mellon University drama school.

In the prior referenced blog article, I tried to address the question why Loughlin would choose to contest the charges in light of the mountain of evidence and witnesses lined up against her.  Even at the early stages, she had already lost her prestigious and lucrative contracts with the Hallmark channel.  Her reputation as the beloved Aunt Becky from Full House had already taken a major hit.  I predicted then that the legal woes would only get worse for Loughlin and she could permanently ruin her acting career.  Even at that time, Laughlin’s decisions and actions provided a lesson for my mediation practice: know when to settle and bring finality to your exposures.  If your case stinks, admit it and find a way to end it.  Continued pushing on a string will only get you more knotted up.

While final judgment remains to be cast in the court of public opinion for Loughlin, a comparison of Loughlin and Huffman remains a useful exercise.  Huffman promptly admitted her deception and wrongdoing.  She genuinely apologized.  Her apologies extended to to those denied admission to college because Huffman’s daughter wrongly remained in their stead.  In explaining her zeal to assist her child, Huffman did not use it as an excuse for her own conduct.

Where is Huffman now?  Huffman has three additional acting credits in movies and on television since the scandal broke in 2019.  Her daughter is on her own academic journey on her own merits.  As for the college admissions scandal?  It has become much more associated with Lori Loughlin than Felicity Huffman.

Lori Loughlin spent over a year denying any involvement in the scam.  In response to a motion filed by Laughlin’s defense team, the prosecutors filed the damming gym photographs illustrating Laughlin’s more direct involvement (and perhaps complicity of the daughters).  Each step by the legal defense team appeared another uncertain step in a minefield and met with further embarrassment for Loughlin and her husband, or worse, additional criminal charges.

In waving the white flag at her sentencing hearing, Loughlin apologized as follows:

“I want to express how sorry I am.  I made an awful decision.  I went along with a plan to give my daughters unfair advantage in the college admissions process.  Though acting out of love for my children, in reality I only diminished my daughters’ abilities and accomplishments and exacerbated inequities in education and in society in general.”

Laughlin’s statement is striking in the, at best, passing reference to harm caused to others beyond her children.  Loughlin noted merely that her actions “exacerbated inequities in education and in society in general.”  Huh?  Compare that statement to Huffman’s apology on the same point.  Huffman stated: “. . . especially, I want to apologize to the students who work hard every day to get into college, and to their parents who make tremendous sacrifices to support their children and do so honestly.”  Put bluntly, Loughlin remains self-unaware.

I offer another prediction:  absent dramatic change by Loughlin, her acting career is done and society will not forgive and forget.  Loughlin is at tremendous risk of being thrown on the pile with Bill Cosby, Pete Rose, Paula Deen and even OJ Simpson.

This cast of characters and Loughlin share commonalities.  They each have adamantly denied any wrongdoing.  When ultimately confronted with consequences for their own actions, each either refused to admit mistakes or offered qualified or tepid apologies.  

This group fails to grasp the capacity and even desire of American people to forgive and move on.  The key components, however, appear to be acknowledging one’s mistakes and shortcomings as well as promising to try to do better.  I fear that Loughlin does not understand.  She states that she “went along with a plan” by others resulting in advantages for her daughters.  Loughlin needs to admit to herself and others that she was an integral part of the plan and not suggest she was some by-stander merely caught up in an unfortunate situation.

In contrast, Huffman appears to have joined the ranks of Martha Stewart, Hugh Grant, Rob Lowe and Alex Karas.  Remember that Martha Stewart spent six months in jail for perjury?  She admitted to her transgressions, used her time in prison to teach other inmates how to read (and how to make doilies), and today remains in charge of the storied brand she created.  

Recall that actor Hugh Grant, less than a year removed from his breakthrough performance in Four Weddings and a Funeral, plead guilty to soliciting sex from a  prostitute.  Grant confronted the issues head on when interviewed by Jay Leno.  Leno asked Grant: “What the hell were you thinking?”  Grant responded: “I think you know in life what’s a good thing to do, and what’s a bad thing, and I did a bad thing.”  Contrite and humble, Grant’s acting career never faltered thereafter.

Self-deprecating humor can also work well to acknowledge fault.  Few recall that the star NFL linebacker, Alex Karas, was banned from the 1963 season after he admitted to betting on football games.  Upon his return, during a coin toss at the start of a game, Karas refused to call heads or tails.  When questioned by the referee, Karas responded: “I’m sorry, sir.  I am not permitted to gamble.”

Similarly, in the late 1980s, Rob Lowe’s star was already shining brightly in Hollywood having starred in a number of Bratpack films.  In 1988, a sex tape surfaced of Lowe having sex with a 16 year old girl at an event in Georgia.  While the age of consent in Georgia at that time was 14 (Yikes!), the damage to Lowe’s reputation was immediate.  Lowe acknowledged his mistakes and appeared on Saturday Night Live where he served as the punching bag of comedy skit after comedy skit.  Apparently with penance served, Rob Lowe has gone on to major acting successes over the next 30 years.  

While these famous people owned their mistakes and moved on, the infrequently employed Paula Deen insists she is not a racist; Pete Rose tries to sell unsanctioned baseball merchandise while refusing to admit he gambled on baseball games; and OJ Simpson apparently remains on his self-imposed mission to search for the killer of Nicole Brown Simpson and Ron Goldman.  Lori Loughlin take note.

Lori Laughlin’s failed strategy to tackle her criminal charges provides yet another lesson for mediation participants.  Trials are morality plays.  The jury will assign parties as the “good guy” or the “bad guy” and then view evidence and testimony through that prism.  Loughlin never had a hope of being the “good guy”.  Loughlin would begin the trial portrayed as a wealthy, famous actor with so much money she could easily spend $500,000 on Rick Singer’s magical college admissions fixes.  Her pre-trial statements that she only did what any parent would do for their children would serve as canon fodder for the prosecution to add “only if you are insanely rich and entirely devoid of morals!”  It took more than a year, but someone on the defense team finally got this message through to Loughlin and her husband.

Loughlin, just as with any party in mediation, must grasp how juries operate and candidly determine whether they may be portrayed as the “bad guy”.  As difficult as her current circumstances appear to her, Loughlin made the correct call to resolve these charges and avoid a trial where she could only play the Wicked Witch and never Dorothy.  Those in mediation must think hard about their presentations and appearances before juries in the event mediation fails to succeed.  Someone will be the “bad guy” and the adversary believes it is only you.

Why Lori Loughlin did not follow Felicity Huffman’’s lead with quick resolution and sincere acknowledgement of wrongful conduct, we will never know.  We nonetheless do know that given her strategic choices and less than complete apology, Loughlin my be destined to join the rogue’s gallery of Pete Rose, Paula Deen, Bill Coby and OJ.  Pride goeth before a fall.  Good luck Aunt Becky.

Bonaventure’s Hat

I am a proud graduate of St. Bonaventure University.  People who know me even casually soon learn this fact and also understand that this school influenced my life.  The campus ranks among the most beautiful places.  The dedicated professors, administrators, and staff who have opted for life in extremely remote (and extremely frozen) Allegany, New York make the students’ experiences exceptional.  Being part of the crowd cheering on the Bonnies basketball teams at the Reilly Center remain deeply embedded memories.

However, at least for me, a defining characteristic which makes St. Bonaventure University so special are the Franciscan Friars.  St. Bonaventure University is a Franciscan university.  You know the Franciscans.  They wear simple brown hooded robes with a white rope belt which has three knots.  Each knot represents their three vows: poverty, chastity, and obedience.  They look like Friar Tuck from all the Robin Hood books and movies.

While the Friars at St. Bonaventure University will cheer on the Bonnies almost as loud as the student section fans, they more often promote a calmness and peacefulness.  As a group, I found them as understated, sharp-witted, and determined.  As a student, you could comfortably approach the Friars and feel immediately welcomed.  You need not be Catholic or even religious to fairly promptly develop strong, lasting bonds with the Friars.  They genuinely wanted to get to know you and help you.

Part of the charm for the Franciscan Friars is remaining well-grounded with a keen sense of humor.  During my Freshman year at Bonaventure, at Halloween, a college buddy and I dressed up as a priest and pregnant nun.  “Please meet the Sister, the mother” was our opening line.  Some found the costumes as crossing the line.  Nonetheless, by the end of the evening, the Friars invited us to sit with them in the campus pub where we shared pitchers of beer and stories.  They thought we were daring and hilarious.

In the middle of the Summer each year, I am specifically reminded of St. Bonaventure — both the university and the man.  July 15 is the feast day of St. Bonaventure.  I do not have the dedicated feast days of Catholic saints memorized and would be lucky to name a few other feast days.  I assume that February 14 is St. Valentine’s feast day and March 17 is St. Patrick’s feast day.  Thereafter, I struggle to name other feast days.  

Each July 15, I receive numerous social media messages from St. Bonaventure University, the Franciscan community and others calling out the feast day of St. Bonaventure.  Many of these messages note the scholarly nature of St. Bonaventure and how his writings solidified the teachings and altruistic approach of St. Francis from one generation before Bonaventure.

This year, through these messages, I learned something new about St. Bonaventure himself.  This relatively small episode from his life places much better into perspective the Franciscan Friars and St. Bonaventure University.  I can take this vignette and apply it to my own life and even my mediation practice.

Giovanni di Fidanza, later better known as St. Bonaventure, was born in 1221 in Italy.  His family was privileged enough so that Bonaventure attended the University of Paris.  Bonaventure took vows as a priest and joined the recently formed Franciscan Order of Friars Minor.  St. Francis of Assisi died in 1225 with this new group coalescing soon after his death.

St. Francis abandoned the well-established monastic monk approach in favor of a mendicant style.  The monastic approach included life in community — monasteries — where all worked at a trade and all owned everything on a communal basis.  This central, established community would then serve the religious flock which came to it.  In contrast, the mendicant approach abandoned ownership ideas and included a vow of poverty, traveling to those in need, and ministering to the poor.  The mendicant lifestyle would be funded by the goodwill of those who had been served.

The Church bristled at this new mendicant movement, in part, as wealth was not created for the Church as it was with the monastic approach.  Tension grew within the Church between these groups during the 1200s.  In the 1260s, the scholarly Bonaventure defended the Franciscan Friars and the mendicant approach from the anti-mendicant movement.  Bonaventure established legitimacy and acceptance of the Franciscans and similar mendicant religious Orders (Dominicans, Augustinians, and Carmelites).  After doing so, in 1265, the Franciscan Order elected Bonaventure as its Minister General.

By this time, Bonaventure had become a Bishop in the Church.  Pope Gregory X recognized Bonaventure’s leadership and elevated him to Cardinal.  The Pope’s delegation traveled to Bonaventure with this news of becoming a Cardinal.  Upon their arrival, they discovered Bonaventure washing the dishes from the Friar’s dinner.  The delegation announced his appointment as Cardinal and presented Bonaventure with the traditional red hat worn by Cardinals.

Bonaventure responded by instructing the delegates to place the Cardinal hat on the nearby table as Bonaventure was busy with the dishes.  In Bonaventure’s view, serving his brother Friars with simple tasks rated well above a hat.  I can only imagine the conversation over the dishes:

Delegation:  “Greetings Bonaventure!  With the grace of his Holy Father, we travel this great distance to proclaim the good news that you have been made Cardinal.  Look.  We brought with us a Cardinal’s hat which the Pope desires you to wear.”

Bonaventure:  “A hat.  How nice.  Why don’t you place it over there on the table.  Can’t you see I’m a little busy here with the dishes.”

Delegation:  “But Bonaventure, this red hat represents so much.  You have the blessings of the Pope.  The Church recognizes you as a true leader.  You have accomplished a great deal and have a platform to share your faith and wisdom.  Please take the hat.”

Bonaventure:  “Hat, schmat.  Toss it on the table, grab some towels, and start drying the dishes if you really want to make a difference.  Don’t leave any spots or streaks.”

Because of this encounter, portraits and images of Bonaventure often include a Cardinal’s red hat which does not adorn Bonaventure’s head, but rather rests near by Bonaventure.  Bonaventure’s dedication to service remained paramount regardless whether he was a Friar, Bishop or Cardinal.  As his positions in the Church advanced, Bonaventure apparently remained humble and mindful of his dedicated purpose.

Looking back at my time with the Friars at St. Bonaventure University, I recognize that there were never ego issues with the Friars.  Whether that dynamic represented an innate characteristic within each Friar or developed with a life dedicated to vows, I know not.  I think, however, that this humility demonstrated by St. Francis, St. Bonaventure and the modern Franciscan Friars allows them to easily serve others.  The Friars are accepting and tolerant of the positions of others.  They have not shown themselves to be judgmental, instead choosing to focus on their mission.

As a mediator, I can learn with a reminder to myself of being accepting of the settlement decisions by others.  I admit that there are times when I question whether an accepted settlement offer is fair or even reasonable.  The participants should fairly easily see that further concessions would most probably be made  with a better settlement resulting.  I have always, ultimately, respected the fact that absent fraud or lack of capacity issues, settlement decisions are vested in the participants, not the mediator.  Those settlements bother me the most over time.

I must strive to be more like the Franciscan Friars.  Absent extreme circumstances, the decisions rest with others and I should accept their positions.  I may not know their personal dynamics and pressures to accept an offer.  They may simply want finality at virtually any cost for their own peace of mind.  They may have moved on to other ventures in life and this lawsuit once so critical has become a nuisance.  They may need funds to satisfy other, more pressing obligations.  They may have inexperienced attorneys who counsel them that the offer is quite good.  The list of reasons driving their settlement decisions can go on.  I need to place the red hat on table and just finish my job.  I am there to serve the participants and guide them to an acceptable settlement.

I may move my Boston Red Sox red hat into my office as reminder of St. Bonaventure.  I will not wear it in the office, but place it on a nearby table.

Eye of the Beholder

Chances are that most of us know well the storyline of the movie It’s a Wonderful Life.  At a low point and feeling as if his life has been a series of unfulfilled opportunities, our protagonist, George Bailey, comes to believe that all would be better if he were never born.  Enter Clarence Odbody, George’s guardian angel.  Clarence grants George’s wish and proceeds to show George how life proceeded as if George never existed.

As we know, with Clarence, George reflects on all events in his life and witnesses the difference he made along the way.  When the druggist placed poison instead of medicine in capsules, George was not there to alert the druggist of the mistake as George was never born.  The druggist poisoned the patient and spent years in jail without George’s assistance.  When George’s brother, Harry, fell through the ice, George was not present to save Harry.  As Harry dies at a young age, he was then not there to save his fellow soldiers during the war.  When George’s father suddenly died, no one was there to take over the Bailey Building and Loan business.  Without the business, the local citizens became forced to wallow in Mr. Potter’s slums rather than construct their own houses with loans from the Bailey Building and Loan.  As an aside, Lionel Barrymore has never received sufficient credit for playing the unlikeable, mean-spirited, curmudgeon Mr. Potter.

Clarence shows George the dramatic impact George made on the lives of so many others.  Perhaps George did not travel as he desired.  Perhaps George never became an architect as he wanted.  Perhaps George felt stuck running a business where he had to worry about saving a nickel on a length of pipe instead of building his grand designs.

Of course, with the benefit of Clarence’s clairvoyance, George ultimately sees the value of his life and wants to live.  He knows he wants to be reunited with his wife.  He wants to hug his children.  He wants to feel Zuzu’s petals.  He wants to be with his friends.  He gladly wants to return to life even if that means he loses his business and is in financial ruin.  Clarence grants this wish with George met, upon his return, with all those he helped during his life now returning the favor to help George himself at his Christmas time of need.  All these friends raise the needed funds, the bank examiner drops all charges of impropriety, and George recognizes that his life dedicated to helping others has, indeed, been wonderful, just not as George had planned.

Each Christmas season when I watch It’s a Wonderful Life, I am reminded that good deeds and actions during our lives are noticed and valued by others even where no one expressly acknowledges them.  These good deeds make life better for all of us.  All our actions, however significant or modest, carry consequences and those consequences may be unforeseen or far reaching.  It’s a Wonderful Life makes you reflect on the actions of your own life while forcing you to think about the potential impact of your actions going forward.

However, I learned that my perspective of It’s a Wonderful Life is not the exclusive view of that movie.  While in graduate school, I watched It’s a Wonderful Life when a housemate returned home.  She immediately went into a rant which delved into lecture mode about the horrible nature of this movie.  From her perspective, the only message of It’s a Wonderful Life was that “money solves all problems”.  Poor George had trouble with his business.  He had a marriage which appeared to be falling apart.  He had parenting problems.  He failed to achieve any of his life goals.  He remained jealous of his brother while laboring in his brother’s shadow. Etc.  Nonetheless, upon receiving money from his friends, all ills were immediately cured and all pain immediately relieved.  Capitalism triumphs over all that is horrible.

Wow.  So much for a feel good movie around Christmas.  I was afraid to ask what she thought of any other movie and imagined the responses: The Wizard of Oz – “Woman murdered for a pair of shoes”; ET – “The government deploys all of its power to hunt down one poor illegal immigrant”;  Back to the Future – “Boy uses time machine for incestuous relationship with mother”; and The Princess Bride – “Strong man needed for weak, pretty woman”.  

I found two takeaways from this encounter.  Foremost, I would never watch any other movie with this housemate unless I wanted to feel depressed.  Second, and ultimately more important, this encounter illustrated that your conclusions may well be driven by your starting point of view.

For this housemate, then in her early twenties and freshly minted out of a quite exclusive, small New England college, capitalism was not merely bad, but unethical and immoral for the inequities it created in society.  I actually met her college professor who planted those seeds of thought in the minds of my housemate and, apparently, many of her classmates.  I recognized that my housemate mostly parroted the lines taught by this professor.  However, the professor was the true believer.  Regardless, when viewed through that lense, the conclusions my housemate reached about It’s a Wonderful Life started to make sense.  The money given to George came from the bar owner’s cash register and the druggist’s charge accounts.  George’s friend who authorized an advance of thousands of dollars from his company to help George had become filthy rich through war time production.  The successes of capitalism saved the day for the Baileys.

Of course, this housemate maintained a blind spot to anything which did not fit her narrative.  There was no room for consideration of generosity toward a life-long friend in need.  There was no place for colleagues or friends who considered themselves repaying a debt to the one who helped them along their own path.  There was no chance that the holiday spirit moved some to contribute to George.  The starting point and ending point remained that capitalism was inherently bad.  All facts and factors would be interpreted through this prism.

This experience and appreciation of viewpoint can assist my efforts as a mediator.  In mediations, I often ask participants how they think their case will play out at trial if settlement cannot be achieved.  By and large, the adverse parties agree on most facts.  The lawyers for the participants generally agree about the nature of the potential jury pool as well as the approach and views of the assigned judge.  Yet, amazing disagreement presents itself in how each side perceives the anticipated trial.

To understand these wildly differing views, I sometimes need to consider the starting point of the analysis of each party.  For example, from the perspective of the former employee alleging age discrimination, the corporate employer systematically terminates older employees in favor of younger, less costly employees.  The attorney representing that client may have had a half dozen other age discrimination cases against the same company and believes as firmly as his client that the company intentionally engages in this practice.  The analysis, at least initially, from this side always comes down to age differences between former employees and their replacements and nothing more.

I still need to determine whether these stated positions are the voices of litigants advocating legal positions or whether they are the voices of true believers like the professor and my old housemate.  If they fall into the true believer category, I, as the mediator, must appreciate that I will not change their thinking, at least not in one mediation session (and it is not my job to change their beliefs).  Progress can still be achieved without requesting that these participants abandon their core feelings.  

I need to educate such parties about their blind spot.  The mediator can explain in detail that while the plaintiff may present a compelling case, the corporate defendant also has a story to tell.  While the former employee may be dismissive of the approach, the defense will present its corporate policies prohibiting age discrimination.  The defense will show that the plaintiff and plaintiff’s former supervisors were trained on these policies.  The employer may seek to illustrate a non-discriminatory intent in hiring a new employee with different experiences, skill levels or education to meet the changing needs of the job, each unrelated to age. 

The plaintiff need not agree with any of these positions or factors which will be used in defense.  However, that claimant needs to know that a trier of fact will hear the evidence and render a decision.  A trial is not a living room debate over It’s a Wonderful Life where uncomfortable facts can be ignored or manipulated to support a pre-ordained conclusion.  Each side will present its best and strongest case for decision by a neutral jury or judge.  

George Bailey learned that each decision in life held consequences.  True believers in litigation can hold on to those beliefs and still find a resolution through mediation or settlement which results in actually controlling the consequences.  Alternatively, these “true beliefs” can be put to a test in trial.  Just remember, the consequences may not be to your liking.

Memorial Day – It’s Complicated

Memorial Day just passed.  America celebrated with a three day weekend as it has since the late 1960s.  But what did we celebrate?  Based on advertisements popping up on the computer and on television, we apparently use Memorial Day to celebrate furniture sales and lower prices on automobiles.  Stories in the media remind us that Memorial Day remains the unofficial start of the Summer season with images of crowded beaches and lake shores (what happened to social distancing?).

You actually had to dig somewhat deeper into the news cycle to find stories and images of politicians and military leaders laying wreaths on the graves of soldiers and otherwise honoring those who died in battle.  Ahh, yes.  Memorial Day is the federal holiday set aside to honor and mourn military personnel who gave their lives to defend the United States.  U.S. flags are to fly at half staff until Noon on Memorial Day to recognize the ultimate sacrifice paid by military members.  The flag is then fully raised to illustrate that America will persevere and remain united despite deep losses at times.

Memorial Day does not readily appear to be connected with retail sales or warm weather revelers.  Memorial Day has only recently become about sales and swimsuits.  Heck.  Memorial Day has only recently become Memorial Day, having been known as Decoration Day for over a century.  And that change took an Act of Congress.  Memorial Day – a day with a fairly simple stated goal to honor those lost in military service – possesses a surprisingly complex history.

I admit to my own checkered history with Memorial Day.  As a younger child, my family would pack up and drive from New Jersey to our relatives in Pennsylvania for Memorial Day weekend.  After Church services on Sunday, while still dressed in our Sunday best, the entire family including all still living, very elderly relatives, would drive to the cemetery.  The purpose of this annual trip would be to tend to the graves of deceased relatives.

However, it always started as a lengthy game of Lost and Found.  The first hour or more would be spent simply trying to locate the graves of our relatives.  Every adult appeared to have very distinct and very vivid recollections of landmarks for the location of the graves in their minds.  “The graves are on the right after the curve in the path.”  Wrong.  “The graves are just beyond the large oak tree.”  Nope.  “The graves are right before the hilly area.”  Not a chance.  How do I so clearly recall where the graves were NOT located?  Guess which kid had to run around each area looking for names on half-buried flat grave markers while in Church clothes and profusely sweating?  Hint: it was not my sister assigned with this task.

Once finally located, the headstones would be propped up with more dirt, grass would be trimmed back and flowers planted.  I could play in the dirt, but be yelled at if I got my Sunday clothes messy.  Someone would then proclaim:  “What about Tom Convrey’s grave?”  Apparently, Good Ol’ Tom was some distant relative with a grave equally distant away from the rest of the family.  Some years we found Tom’s grave and tended to it and some years not.  

I recall placement of a small American flag on some, but not all, of the graves of our relatives.  At that time, no one explained the significance of that gesture.  To me, Memorial Day meant tending to the graves of all family members and missing out playing with my friends for a long weekend.  Only later in life did I learn that cemeteries have offices with records of the specific location of each interred person.  Apparently, the adults in my family never knew about that little gem.

By my early twenties, I fell squarely in the camp of those who viewed Memorial Day as the start of Summer.  Together with a bunch of buddies, we would rent a dilapidated shack for way too much rent along the Jersey Shore.  Memorial Day meant the kick off of Summer with three full days to get sunburn and into the spirit.  The only dead soldiers we lamented were the empty 12 ounce containers with beer labels on them.

Out of that group from those Summers at the Jersey Shore, we somehow morphed into a heart surgeon, DNA scientist, lawyers, CPAs and an investment professional.  People probably thought we would not get through Memorial Day weekend let alone get through advanced degrees.  Candidly, honoring wartime fallen heroes was not tops in our thoughts, but we were quite grateful for a three day weekend.

In a speech about the nation’s fallen soldiers, the following was stated in tribute: “Not only are they commemorated by columns and inscriptions, but there dwells also an unwritten memorial of them, graven not on stone but in the hearts of men.”  Pericles offered these words for Athen’s soldiers who perished in the Peloponnesian War some 24 centuries ago.  The concept of remembering the fallen military heroes has been well-established long before our own Memorial Day.

In the U.S., the origins of Memorial Day clearly date to the Civil War.  At that point, all clarity is lost.  According to the Center for Memorial Day Research at Columbus State University, at least 25 different places lay claim to being the birthplace of Memorial Day.  Warrenton, Virginia holds the distinction of the oldest alleged Memorial Day observance.  In June 1861, local newspapers reported that the grave of John Quincy Marr had been decorated to commemorate him as the first soldier to die in battle in the Civil War.  No further contemporaneous records could be located to confirm this memorial as annual or a recurring event.

Similar recognition services took place in Mississippi, Georgia, Pennsylvania and South Carolina between 1862 – 1865.  As with Warrenton, Virginia, each service appeared more directed at remembering lost military members from particular battles such as the First Battle of Bull Run and the Battle of Gettysburg rather than honoring all fallen in the war.  Yet, each location asserts that it possesses the deepest roots for the current Memorial Day observances.  

Waterloo, New York ranked among those places with a claim as the birthplace of Memorial Day.  Supposedly, in 1866, Waterloo honored local veterans as well as all those who fought in the Civil War.  Waterloo’s distinction was that it celebrated Memorial Day as a community-wide event organized by the town druggist and county clerk.  In 1966, buying into this narrative, President Lyndon B. Johnson designated Waterloo as the “official” birthplace of Memorial Day.  Historians have since confirmed as myth Waterloo’s claims of civic involvement and extended Memorial Day celebrations.  Nonetheless, the Presidential distinction remains in place.

Enter into the fray General John A. Logan in 1868.  Logan was retired from active duty and served as the commander-in-chief of the Grand Army of the Republic (GAR).  GAR was an organization designed to serve Union Civil War veterans.  By 1870, GAR’s membership swelled to in excess of 100,000.  In 1868, as commander-in-chief of GAR, General Logan proclaimed May 30 as the new annual Decoration Day when graves of those who lost their lives in the Civil War should be decorated with flowers and their memories honored.  Logan selected May 30 as flowers would be in bloom and that date was one of the few which did not conflict with the anniversary of any battle from the Civil War.

From 1868 forward, Decoration Day continued on May 30 each year.  After World War I, Decoration Day expanded to include all those who died in battle in any U.S. war from the Revolutionary War through the recent Great War.  By World War II, the term Decoration Day was losing favor to the term Memorial Day.  In 1967, Congress formally declared May 30 as Memorial Day.  In 1968, Congress passed the Uniform Monday Holiday Act which moved Memorial Day to the last Monday in May.

Perhaps recognizing Memorial Day as a holiday signaling the start of the warmer, outdoor season is not such a recent phenomena.  In 1913, the GAR with its aging and dwindling membership complained about younger Americans born after the Civil War.  This new generation possessed a “tendency to forget the purpose of Memorial Day and make it a day for games, races and revelry, instead of a day of memory and tears.”  The GAR took particular offense at the scheduling of the Indianapolis Motor Speedway car race – later better known as the Indianapolis 500 – on May 30.  GAR lobbied the Indiana legislature to ban the big race from taking place on May 30.  However, the new American Legion with its growing and younger membership successfully lobbied the governor to veto the bill.  Start your engines on May 30!

GAR’s Decoration Day confronted more fundamental challenges while starting to gain traction in its early years.  Opposition in the South to General Logan and GAR could easily be predicted given the short time and distance between the end of the Civil War and Logan’s proclamation.  It took but one year for Confederate Memorial Day to be proclaimed in Georgia.  Ultimately, ten Southern states declared Confederate Memorial Day a holiday.  Most states selected June 3 as Confederate Memorial Day as it was the birthday of Jefferson Davis.  Some states selected May 10 as the solemn day the South surrendered.  

Both the Ladies Memorial Association and United Daughters of the Confederacy, collectively with over 100,000 members, proved adept at raising funds which they used to build Confederate monuments throughout the South.  During the latter part of the 1800s, these organizations shifted the focus of Confederate Memorial Day from honoring the Civil War dead to public commemoration of the Confederate South.  A number of these monuments still stand and remain in debate today.

It took a few generations and World War I to start to unite Americans on Memorial Day.  It took an Act of Congress to finally eliminate dispute between Decoration Day and Memorial Day.  The fundamental purpose of Memorial Day has remained constant throughout – to respect and mourn those who gave the ultimate sacrifice for country.  Whether we can get a bargain on a new appliance, head off to the beach with a bunch of buddies, or be forced to run around a cemetery searching for names on tombstones, let us pause to recall that others have not been as fortunate, and, indeed, set the table for us to have these opportunities with family and friends.  Just don’t get your Church clothes dirty.

Apollo 13 – Failure Is Not an Option Fifty Years Later

46 hours and 43 minutes into the Apollo 13 space flight in 1970, the on-duty Capsule Communicator on the ground in Houston, Joe Kerwin, told the Apollo 13 crew, “The spacecraft is in real good shape as far as we are concerned.  We’re bored to tears down here.”  Nine hours and twelve minutes later, Command Module Pilot and astronaut, Jack Swigert, in a slightly better known quote, advised, “Houston, we’ve had a problem here.”  In that instant, the Apollo 13 mission transformed from the third lunar exploration to critical emergency rescue.

It has been 50 years since NASA celebrated its “Finest Hour” with the safe return of Commander Jim Lovell, Lunar Module Pilot Fred Haise, and Jack Swigert.  While some 205,000 miles from Earth and not yet having reached the Moon, the astronauts heard a “loud bang” with numerous electrical systems immediately lost or compromised.  The astronauts and Mission Control sought to promptly assess the situation.  Jim Lovell looked out the window of Apollo 13 and saw vapor escaping from the rear of the spacecraft which he knew could only be oxygen.  As Lovell later recalled, it was at that moment he understood that “we were in serious trouble.”

Oxygen Tank 2 on the Command Module exploded due to a short circuit between wires in the tank.  This explosion damaged Oxygen Tank 1 which was the source of the venting Lovell witnessed.  Oxygen Tank 2 emptied due to the explosion.  Oxygen Tank 1 continued to deplete rapidly.  There was no Oxygen Tank 3 on the Command Module.  The oxygen was necessary to maintain life not only of the astronauts, but also for the fuel cells which powered the Command Module necessary for any return home.

OK.  Crisis identified.  The crew, NASA engineers and other experts conferred on immediate reactive measures, short term action plans, and strategy to return to Earth.  Step 1: ensure the crew’s immediate safety and well-being of the damaged spacecraft so matters can be evaluated.  The Apollo 13 crew shut down the Command Module to preserve the precious little remaining battery power and moved to the Lunar Module as their lifeboat.  The Lunar Module, mostly undamaged in the explosion, provided its own independent systems.  However, reliance on the Lunar Module could only be temporary as NASA designed it to support two, not three, astronauts, while going to the Moon’s surface.  More importantly, the Lunar Module could not be used to re-enter the Earth’s atmosphere.

Based on the known available energy sources, water and oxygen supply, the engineers devised a flight plan to return to Earth.  Apollo 13 did not turn around but continued to steam toward the Moon.  Using the Moon’s gravity, Apollo 13 “whipped” around the Moon and was thrown back toward home.

With no computer guidance systems available, the crew “steered” Apollo 13 by looking out the window to triangulate the spacecraft, sun and Earth.  NASA engineers then calculated the necessary amount of thrust to remain on the proper trajectory to enter Earth’s atmosphere given this triangulating methodology.  In post-flight evaluations, these manual calculations and steering by the crew proved to be within 1/2 degree of ideal conditions.  I have difficulty balancing my checkbook while these guys performed intricate calculations under dire circumstances.

Next step: Determine how to power up the Command Module; jettison the damaged Service Module; jettison the Lunar Module; and provide the power necessary for Command Module systems essential for re-entry with exceedingly limited battery power.  During the Apollo program, new processes would typically take three months to develop followed up with months of testing and training to implement the procedures.  NASA now had less than three days to create the processes and teach the Apollo 13 astronauts.

The combination of NASA engineers and experienced astronauts working in simulators eventually yielded the proper sequence of steps to power the necessary components with all of one electrical amp to spare.  There would be absolutely no margin of error in executing the new procedures in the condensation filled Command Module.  As Apollo 13 careened toward Earth at 25,000 m.p.h., finally, NASA had a game plan.

The Wild Card.  Of course there was a Wild Card.  NASA calculated that the oxygen in the Lunar Module and limited oxygen in the Command Module would be sufficient, marginally, for survival.  Those calculations proved accurate and Apollo returned with a few pounds of oxygen.  However, with each breath, the astronauts exhaled poisonous carbon dioxide.  Apollo 13 addressed this circumstance by filtering air through lithium hydroxide canisters.  Once a canister was used, it would be replaced with a new canister.  The Lunar Module’s lithium hydroxide canisters were to serve the lunar landing party of two crew members, not all three astronauts for the multi-day return to Earth.

Simple solution: Take the lithium hydroxide canisters from the Command Module as they were now idle and use them in the Lunar Module.  Who said this rocket science is difficult?  But not so fast.  The Lunar Module canisters were cylindrical shaped with round openings.  The Command Module canisters were cube shaped with square openings.  NASA literally needed to find a way to place a round peg in a square hole before the astronauts poisoned themselves.

Enter Ed Smylie, NASA chief of crew systems.  Smylie cloistered his team armed only with materials available on the spacecraft.  Smylie’s team devised a system to draw air through a spacesuit hose which could be connected to a canister for filtration.  With ingenuity, hoses and tape, the Apollo 13 crew could breath easy once again.

These reflections illustrate the highlights of the challenges presented to Apollo 13.  NASA followed the mantra: “Failure is not an option.”  Each issue was cast in life or death decisions.  Flight Commander Lovell later noted that each astronaut approaches a space flight with an assumption of not returning.  He appreciated that his crew at least had a chance to return home.  Fellow crew member Jack Swigert stepped in to replace another astronaut a mere two days before Apollo 13 launched as the fellow astronaut had been exposed to German measles.  I wonder if Swigert felt the same as Lovell on this issue.

The safe return of the Apollo 13 crew most certainly classifies as NASA’a Finest Hour.  How so many came together so quickly to improvise solutions for impossible problems should amaze us all these fifty years later.  Let America have Apollo 11 with the first Moon landing.  NASA proudly and rightfully proclaims the rescue of Jim Lovell, Fred Hasie and Jack Swigert as its very finest accomplishment.

In looking back at Apollo 13 and the challenges confronted, the parallels to and lessons for the mediation process stand out.  Foremost, a lesson for the mediator and lawyer representatives.  Remain calm under pressure.  The substance and pace of settlement negotiations can be frustrating.  I remind myself of a lawyer with whom I worked for years.  In settlement negotiations, I cannot recall him ever once becoming emotional and never caving under pressure.  If an offer was shockingly low, he would say only “I have never been offended by money, regardless of amount.”  Stay calm.

Use creativity much like the engineers working on Apollo 13.  The engineers never expected to have to construct a Rube Goldberg apparatus to filter carbon dioxide, but they did.  They worked with what was available.  In settlement, use all the resources at your disposal.  If money alone is insufficient, think of new or alternative business relationships to offer instead of funds; think of expanding the value of money with annuities (at least when interest rates get above 0%); think of injunctive relief to formally compel or preclude activity; and think of press releases or other communications to customers which could have value to a party.  These alternatives are limited by your own thinking and not the four corners of any legal pleading.

Apollo 13 teaches us that nothing goes as expected.  By the time of the Apollo 13 flight in 1970, NASA had a decade of studying and preparing for “what if” scenarios.  Despite all preparation, NASA had not planned for the circumstances of Apollo 13 as the assumption was that the spacecraft and crew would be a complete loss with any such deep space explosion.  The litigation process and trials are case studies in “nothing goes as expected”.  Judges make bad decisions which may negatively impact all parties.  Juries are unpredictable and susceptible to being swayed by a single, determined juror.  Scheduling of trials near holidays may result in juries which have no interest in paying attention to the claim you had so painstakingly litigated for years.  Additional and unforeseen costs and expenses always present themselves in trials.  Resolution through mediation eliminates the “what ifs”, provides certainty, and provides finality.  Avoid confronting large problems you never envisioned.

Mission Control for Apollo 13 repeated the refrain “Failure is not an option” especially when the first dozen or so proposed solutions for any issue did not work.  They did not give up until the issue was addressed.  Similarly, be careful about claiming “impasse” in mediation negotiations.  In fact, some mediators assert that impasse among participants does not exist, but rather presents as an opportunity to look at issues differently.  Do not focus on the differences between the parties and gaps between offers, but rather on areas where common ground has been found.  

Instead of asserting impasse and giving up, focus can be placed on other issues if the trading of financial offers appears stuck.  For example, work on the non-economic terms of a proposed settlement arrangement.  You may discover that the timing of payments may be important to one party.  If timing can be expedited, then the other party may be willing to further compromise on amount.  You may discover that a press release or confidentiality is important to one side.  That process may well open up other items for consideration in negotiations.  If “failure is not an option”, then keep the process moving forward.

Most incredibly, NASA returned the crew of Apollo 13 safely from disaster’s brink.  The lessons taught by the Apollo 13 astronauts and NASA personnel resonate well beyond space exploration.  They still resonate on this 50th anniversary of NASA’s Finest Hour.

Fauci’s Fierce Faith In the Facts

I would wager that a few short months ago, most of us did not know that there existed the National Institute of Allergy and Infectious Disease (NIAID).  I would wager even more that fewer of us knew the name of its Director, Dr. Anthony S. Fauci, M.D.  Dr. Fauci has been the Director of NIAID since 1984.  As part of this role, he has advised Presidents Reagan, George H.W. Bush, Clinton, George W. Bush, Obama, and Trump.

Courtesy of COVID-19 and the current pandemic, “Dr. Fauci” has become part of our lexicon.  He visits us daily through briefings, appearances on cable news programs, more appearances on cable news programs, and however else he can get out messages about the COVID-9 virus.  Dr. Fauci quickly rose from obscure to part of the fabric of society.

A portion, and sometimes a significant portion, of Dr. Fauci’s role has had little to do with the actual coronavirus and medical science to address it.  Unfortunately, Dr. Fauci has had to address disinformation, misinformation and conspiracy theories about COVID-19.  For instance, the novel coronavirus originated in animals, most likely bats.  Dr. Fauci repeatedly explained the tracing of this virus to this source in a particular region of China.  Yet, a recent national poll in the U.S. disclosed that 39% of the respondents still believed that COVID-19 was human-developed, created in a laboratory (and then intentionally released by the Chinese government).  As recently as February 2020, Tom Cotton, U.S. Senator from Arkansas, suggested that COVID-19 was a Chinese biological weapon.

Jerry Falwell, Jr., president of Liberty University, furthered this conspiracy theory in mid-March 2020 suggesting that the coronavirus was a Chinese and North Korean creation which the Democrats were using to take down President Trump.  Falwell also asserted that all social distancing, hand sanitizing and preclusion of social gatherings constituted an overblown response to conditions.  Dr. Fauci responded by re-emphasizing the need for social distancing and hand washing.  Dr. Fauci refused to enter the briar patch of Falwell’s comments.

Perhaps most amazingly, Dr. Fauci developed a methodology to correct inaccurate assertions from Donald Trump.  As we know, anyone else who dares to even suggest that Trump is wrong on any matter, grand or small, ends up out of favor, unemployed, or mocked on Twitter.  But not Dr. Fauci.  For example, on March 2, 2020, President Trump proclaimed that a COVID-19 vaccine would be available “in a matter of months.”  Dr. Fauci advised, at that very same meeting, that development of a vaccine would take 12-18 months, at a minimum.  Dr. Fauci did not proclaim: “You are wrong, Mr. President.”  Dr. Fauci did not comment in any way on Trump’s proclamation.  Dr. Fauci simply stated a fact:  medical development of a vaccine cannot be accomplished before a certain period.

Dr. Fauci delivers information about the coronavirus in a matter-of-fact fashion.  The information he provides remains supported by facts, data and science.  In all these interviews and presentations, Dr. Fauci refuses the entanglements of politics.  He will not rise to the bait to comment on whether the coronavirus is a “hoax”.  He will not commit to supporting a specific date to return to normal conditions as the virus, and not humans, dictate the timetable.  His responses universally remain grounded in the underlying science, data, and best medical approaches.

What has been the reward for Dr. Fauci?  Death threats against him and his family.  Dr. Fauci now has Secret Service protection.  His family remains under Secret Service protection.

Dr. Fauci tells us what we need to hear, not what we want to hear.  We are in the midst of a pandemic which has turned upside down societal norms.  Medical services are stretched beyond their abilities, together with the medical personnel themselves.  We have to address severe illnesses, or worse, deaths, from the virus.  Businesses are shuttered.  Tens of millions of people have instantly become unemployed.  Grocery store shelves have been emptied.  Almost the entire nation remains under Stay at Home orders.  The future has never been more uncertain.

We want to hear that it is OK.  We want to hear that it is over.  We want to return to the gym and coffee shop.  We want to return to our routines and sense of normalcy.  But we need to hear the truth.  We need to hear the horrific numbers to make certain we understand the gravity of the situation.  We need to hear about the next anticipated virus hot spot to be better prepared.  We need to hear whether the preventative measures are “flattening the curve”.  We need to hear whether front line medical providers have the necessary support and supplies.  In this crisis, we need the plain-spoken voice of Dr. Anthony S. Fauci, M.D.

The mediation and arbitration side of my practice, like so many other things in society, is now a series of re-scheduling or delaying of events.  Trying to remain positive, I want to use this time prudently.  I can get some needed Continuing Legal Education credits (on-line, of course, as all in-person seminars have been cancelled).  I no longer have excuses to avoid organization and filing – ugh.  And I also can seek to continue to learn from these unique circumstances.

As a mediator, I can learn from Dr. Fauci.  In mediations, many participants initially present well thought out and vetted positions.  Their attorneys capably cite facts from discovery and legal precedent to bolster the cases.  The parties already invested substantial sums in the litigation process and now even more in mediation.

Each party wants to hear that its case is great.  Each party wants and expects to hear that its position will carry the day in court.  Each party wants to hear that the adversaries now see the errors in their thinking and they want to settle.  Each party arrives fully vested in its position.

In those circumstances, I have to be Mediator Fauci.  I  must tell the participants what they need to hear even though they do not want to hear it.  Like Fauci, I will not declare: “You are wrong” in the analysis.  I will not belittle the presentation.  I will, however, do my best to be prepared with facts from the record, additional legal cases, and information about the court, judge or potential jury pool in order to question the strength of a claimant’s case or position.  I will channel Dr. Fauci to matter-of-factly and objectively present alternatives.  They need to hear it before they hear it during trial from an adversary or judge.

Note to the lawyers who represent clients in mediation:  use the mediator to deliver messages your client needs to hear.  One of the most fundamental challenges remains managing client expectations.  Despite all your counsel, your client may arrive at mediation convinced that PowerBall-like winnings will be offered in settlement or that a complete defense victory will be in the making.  The mediator is neutral and, quite often, viewed as judge-like by clients.  Privately, let the mediator understand the nature of the outsized expectations so that the mediator becomes your own Dr. Fauci to more objectively tell the client what needs to be heard.

So far in my service as a mediator or arbitrator, I have not had the need of Secret Service protection.  Once, while serving as in-house counsel investigating fraud, I found myself with around the clock body guard protection in a foreign country, but that story is for another article.  As a nation, we remain deeply indebted to Dr. Fauci for his service on COVID-19 as well as his decades long service.  Let’s learn from his example, not threaten him.

With a Little Help . . .

The current coronavirus pandemic is, quite simply, frightening.  The virus itself appears physically devastating to so many.  Part of the fright remains our apparent lack of knowledge about it: incubation period; methods of transmission; ability to develop natural immunity if contracted; and whatever new reports Dr. Fauci brings to our attention.  Part of the fright, at least for me, comes from such drastic measures never previously adopted in my lifetime: self-quarantine; stay at home orders; nationwide school and business closures; and panic buying at any and every store which remains open.  By the way, are people renting U-Store-It lockers to stock away all the toilet paper?

We are all displaced in many regards.  Our routines which keep us somewhat grounded no longer exist.  We are in uncharted territories.  To what do we turn in such times?  Faith and prayer.  Significant others and family.  Determination and resolve. Friends, but at appropriate social distancing levels. Work.  And humor.  Yes.  Among those things that help, I believe, is humor.

COVID-19 is no laughing matter.  However, we should not, and cannot, lose the ability to laugh at ourselves.  It helps us cope with it all.  How many of us chuckled when we saw video of the couple pushing four shopping carts (i.e., “buggies” to my fellow Southerners) each full of toilet paper at Costco?  I think they may be handing out rolls of toilet paper instead of candy this Halloween.

Accordingly, I offer a modest attempt at timely and topical humor in an effort to brighten even a small portion of your upside down day.  I present this funny look at ourselves through the medium of song.  I have taken great liberties in re-writing lyrics to some well-known songs to fit this pandemic.  With apologies to all songwriters and performers, feel free to sing along to the following tunes.

For those parents and caretakers finding themselves suddenly at home with younger children (thank goodness mine are mostly grown) and still attempting to work from home, we receive musical inspiration with a re-write of “Rock and Roll All Nite” by KISS.  Here is the debut of “I Wanna Stay Home All Day”:

“I Wanna Stay Home All day”

They scream with everything they got.

Demand juice and and snacks around the clock.

The kids are home, it drives me crazy.

Interrupt when I’m on a conference call.

Used lipstick to draw on the hallway wall.

The kids are home, it drives me crazy.

They keep on shouting, when they are not pouting:

I wanna stay at home all day, with the corona school break.

I wanna stay at home all day, with the corona school break.

Toys and games all over – it’s a mess.

Put the poor dog in a dress.

The kids are home, it drives me crazy.

Schools won’t re-open for a while.

Need more antacids to calm the bile.

The kids are home, it drives me crazy.

As cautioned time and time again, we must practice proper hygiene to limit the spread of coronavirus.  Garth Brooks sacrifices his song “Friends in Low Places” for the cause.  Please join with me in singing the new hit “Wash My Hands at All Places”:

“Wash My Hands at All Places”

Blame it all on the soap,

My poor hands couldn’t cope,

In need of lotion for their care.

I lather and rub,

Each digit I scrub,

Miss a spot, I don’t dare.

Ivory, Dial and Dove,

There is one called Tokyo Love,

It matters not the brands.

My hands are dry and sore,

but I’ll wash some more,

I’ve developed alligator hands.

‘Cause, I wash my hands at all places.

Then sanitize,

But don’t touch them faces.

Keep the virus away,

And we’ll be okay.

I’ve become big on Purell.

Hands are cracked, but what the hell.

Oh, I wash my hands at all places.

Our friends from Costco reappear for an encore and their efforts to corner the toilet paper market.  Queen lends a hand and lends us their song “You’re My Best Friend” which has become “”You’re the Best Roll”.

“You’re the Best Roll”

Ooh, I stockpiled you.

If the virus I get, to the potty I race.

I have 300 rolls, just in case.

Provides comfort to my mind, and my base.

Ooh, I stockpiled you.

You’re the best roll.

2 ply ain’t bad.

Don’t ask for any, I have none to spare.

I treasure each roll and every square.

And I need you to know,

I depend on you

To get me through.

You’re the best roll.

Ooh, I stockpiled you.

How about those college students at Florida beaches.  They all apparently missed the memo about precautionary measures and avoiding crowds.  Those college kids were probably too busy cramming for mid-terms before Spring Break to pay attention to the news.  Appropriately, Jimmy Buffet assists us with “Margaritaville” which the college students renamed “Spring Break” in this re-write:

“Spring Break”

Sun all day.

On the beaches we play.

Among the crowds with our cooler of beer.

Cancelled classes,

We party off our a**es.

Pass the sunscreen since you’re standing right here.

Wasted away on Spring Break.

Social distancing not in our sight.

Some people claim that we don’t care,

But we just want to party all night.

Interaction we’re craving.

Much misbehaving.

Not concerned about the virus we do boast.

Uh oh.  Beaches closed.

Guess Spring Break is officially toast!

Finally, the economy.  What can be said beyond The Beatle’s providing us “Yesterday” which has been re-written as “401(k)”:

“401(k)”

Yesterday, I had money in my 401(k).

Now it looks like its wiped away.

Oh, why didn’t I cash out yesterday.

Suddenly, 18,000 where the Dow Jones be.

I’ll have to work ’til I’m ninety three.

Oh, the COVID-19 slump came suddenly.

Why did the money go?

Stock fundamentals remained okay.

“Ride it out” they say,

But I have no money with which to play . . .

If you find yourself looking for something to do while quarantined, add a few verses to these songs which are certain to become instant classics.  Just hurry before they each crack the Top 40.  In the interim, stay safe and stay healthy.  Remember:  Wash You’re Hands at All Places!

Short-Legged Hogs and Chickens

I have lived in the South since the 1990s.  Two of our three boys were born in the South and all three boys have been raised in the South.  I do not cringe when the boys throw around a “y’all”; I have been served brains and eggs; I fully expect some part of a pig to be included in a vegetable dish; and I understand the difference between fixin’ and fixing.  Yet, to many around here, I remain a Yankee.

I could never escape or disguise my Jersey roots.  I know a pie is not apple or blueberry, but rather what others call a pizza; a Taylor ham and egg sandwich should never be called pork roll; toll booths on highways do not scare me; I can easily navigate jug handles; every town should have a diner where food is served with extra attitude; and bread should always be crusty.

I traded in one part of the country where the plural of you is “yous” as in “Where are yous guys going?”  Instead, the plural of you is now “y’all” or even the very plural “all y’all”.  Perhaps one day we can retire to a grammatically correct region.

I have also lived in Upstate New York and Boston.  Each part of the country offers its unique culture, quirks and approaches to life.  Appreciate and embrace these aspects as they are part of the glue which binds communities.  One such local aspect in each geographic area remains the use of phrases.  In this regard, the South presents with an abundance of rich sayings to address almost any aspect of life.

I could not begin to catalog all the sayings encountered in daily life in the South.  However, I have taken note of a number of phrases which have been used by lawyers, politicians, mediators, arbitrators, and even judges while practicing law.  These sayings have popped up not merely in informal discussions, but also in open court on the record and in public meetings.

For my former Yankee brethren, below are a few examples of Southern turning of a phrase and, at least, my interpretation of what it means.  I request the indulgence of my Southern colleagues to correct erroneous meanings assigned to any saying.  Some sayings remain straightforward in concisely conveying a point.  Others require a little thought to get there.  For at least one saying, I still have no clue as to its meaning despite being first encountered by me over 18 years ago. 

 Category I:  Self-explanatory Phrases

“He Got His Ox in a Ditch”

No one wants their ox in a ditch.  If you find yourself in this scenario, all best laid plans have already veered off the road and crashed.  It is so bad you will require help to get all upright and back on the path.  An ox in a ditch can only be big trouble for you.  

“Whole Hog”

If you are whole hog, you are all in and holding nothing back.  In settlement conferences and mediations, this phrase routinely arises when one party claims that no more money is available.  “We are whole hog with this offer, there is nothing else.”

Honorable Mention of Self-explanatory Southern Sayings

“Only Got One Oar in the Water”.

“As Useful as a Trap Door in a Canoe”.

Category II:  A Little Thought May Be Needed

“That Dog Won’t Hunt”

When first hit with this gem, I thought it simply meant that someone’s position or argument would not carry the day.  If the dog will not track the critter you seek, you have no chance for success.  I have come to appreciate that the phrase can mean just that.  However, it more often is a method to kindly call someone a liar.  The dog that won’t hunt is one that fails to fulfill its intended purpose with the underlying plan or scheme then failing.  It is the dishonesty of the dog in refusing to honor its work obligation that establishes it as the liar.

“All Hat, No Cattle”

If you sense an animal theme in these sayings, you are correct.

Think of the movie City Slickers on this one.  The three New Yorkers show up at a ranch with brand new cowboy boots, jeans, chaps, plaid shirts with pearl buttons, and ten gallon hats.  Of course, none of them knew how to ride a horse let alone rope a steer.  They quite literally represented the saying being all hat (i.e., all show), no cattle (i.e., not a remote chance to back up the image with actions).

A common tactic in closing arguments is to belittle the adversary’s case as “All hat, no cattle” to suggest that it looks flashy, but lacks substance once you get past initial appearances.

“High Cotton”

When crops are good and crop prices are up, you are in “high cotton”.  The phrase more generally refers to someone who is well off, is doing well, or confronts quite favorable circumstances.  If you place your house for sale and a bidding war in excess of the asking price ensues, you are in high cotton.  The term could also carry a slightly negative or disparaging connotation.  Someone with the perception of coasting through life, relying on old family money, may be characterized as in high cotton with no need to worry.

“Throw the Corn Where the Short-Legged Hogs Can Reach It”

Here is one of my favorites.  I first encountered this saying while serving on a panel at a legal seminar.  In response to the moderator’s question, a fellow panelist who also happened to be a federal judge in the South, merely stated: “Well, I think you need to throw the corn where the short-legged hogs can reach it.  You agree with that Mr. Geiger, correct?”  I wanted to respond: “Judge, I’m not certain if you are still speaking English.  Corn and short-legged hogs?  Did you have a stroke?”  Instead, I recall responding along the lines of: “Of course, Judge, we are all of the same mind on this point.”

With some thought after sidestepping any immediate response, I defined this saying to instruct someone to keep things simple.  Make it easy for people to “get it” just as you make it easy for the vertically challenged swine.  I think we have here much more colorful and vibrant version of Keep It Simple Stupid.

Honorable Mention for Sayings Requiring a Little Thought

“Butter My Butt and Call Me a Biscuit” (shocked or surprised).

“Don’t Know Whether to Scratch His Watch or Wind His Butt” (incredibly confused).

Category III:  No Idea What These Sayings Mean

“He Needs Another Chicken in His Yard”

This one requires a set up.  A new general counsel joined the company where I served as the lawyer in charge of litigation and all risk matters.  In addition to being Southern through and through, the general counsel was a former U.S. Attorney with decades of experience.  We met to discuss the potential settlement of a case.  Being fully prepared, I detailed the facts, applicable law, strengths and weaknesses of legal positions, dynamics of the court, cost projections to try the case, case worth, and realistic settlement range.  After discussion, I requested authority to settle the case within a defined range.

The general counsel placed his arm around my shoulder as we walked toward the door of his office.  He told me that the presentation was thorough.  Regarding settlement, as he ushered me out of his office, he stated that the adversary just needs another chicken in his yard.  End of meeting.

Huh?  I walked down the hall in bewilderment.  Do I settle?  Do I take the case to trial?  Do I buy a chicken to bring to the settlement conference?  Where would I get a chicken on short notice?

Pause.  I had to think this through.  Why would someone need another chicken?  Do more chickens signify greater wealth?  If so, then we settle to allow the adversary to buy more chickens.  But, does someone want another chicken?  In movies, people chase chickens but rarely catch them.  More chicken droppings would be all over the yard.  Another chicken could mean more chaos.  Then we do not settle and we remain the chicken in the yard causing more chaos.

Ultimately, I determined that it costs money having another chicken in your yard.  The chicken must be purchased.  The chicken must be fed.  The chicken needs a coop.  The adversary cannot get another chicken absent funding.  Settlement it is!  Actually, after so much thought, I ignored the entire chicken drama and used my own judgment.  In future discussions with the general counsel regarding potential settlement of disputes, I requested authorizations with no poultry references.

To this day, I have no idea what is meant by this chicken saying.

Honorable Mention for Indecipherable Phrases

“Grinning Like a Possum Eating Fire Ants” (beyond the possum appearing pleased, no clue).

“That Dills My Pickle” (supposedly it involves being overjoyed, but it just sounds wrong).

What can we learn from these colloquial sayings and my struggles to understand them?  These type of sayings are part of the fabric of the region, culture and people.  They are to be embraced in order to understand your neighbors, fellow attorneys, judges, potential jurors, and mediation participants.

I may not use many of these phrases as they sound funny with a Jersey accent.  But I sure better understand them to continue to be an effective mediator who needs to demonstrate understanding, sympathy and empathy.  While I may never get the chicken reference, by and large, I have come to appreciate the points being made through these sayings.  In many ways, these Southern sayings represent polite ways to convey negative messages.  That style runs counter to a slightly more direct approach instilled through my Jersey upbringing.

It is important to appreciate not simply who you are, but where you find yourself as well.  If you cannot understand this significance, I can only say Bless your Heart.