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.