From Miami to the South Seas

“Here we go. . . .  Here’s your ballgame, folks, as Flutie takes the snap.  He drops straight back . . . has some time, now scrambles away from one hit . . . looks . . . uncorks a deep one to the end zone, Phelan is down there. . . . Oh! He got it!  Did he get it?  He got it!  Touchdown!  Touchdown!  Touchdown!  Touchdown!  Touchdown Boston College!  He did it!  He did it!  Flutie did it!  He got Phelan in the end zone!  Touchdown!  Oh my goodness. . . . What a play!  Flutie to Gerard Phelan! . . . No time on the clock, it’s all over!”

With this call, Dan Davis, longtime Boston College football radio announcer, immortalized the “Hail Flutie” last-second, improbable 47-45 victory of Boston College Eagles over the University of Miami Hurricanes on November 23, 1984.  With Boston College trailing with six seconds on the clock, Boston College quarterback, Doug Flutie, scrambled away from Miami’s defense and launched a Hail Mary pass 63 yards in the air against 30 mph winds.  Miami’s defense allowed Boston College receiver Gerard Phelan to run past them to the end zone where Phelan caught the game winning score.  The Miami defenders later stated that they did not believe that Flutie could throw the football that distance in those conditions.

Improbable?  Perhaps.  But the Miami defenders just witnessed a game with 919 yards of passing offense (Boston College quarterback Doug Flutie – 472 yards; Miami quarterback Bernie Koser – 447 yards).  The game included total offense output of 1,282 yards under hurricane like conditions.  Gerard Phelan alone, who caught the Hail Flutie pass, accounted for 227 receiving yards.  The quarterbacks combined for 84 pass attempts.  No defender should have taken either offense for granted, especially these quarterbacks on that day.  Improbable or not, this college football game between two top-ranked teams playing before a national television audience the day after Thanksgiving, remains a defining moment in both the legend of Boston College football as well as among the most memorable sports moments ever.

Yet, I suggest that the Boston College football program played a much more consequential game decades before on November 28, 1942.  Boston College entered the big game in 1942 against then rival, Holy Cross.  Boston College, then ranked No. 1 in college football and posting a record of 8 wins and 0 losses, remained heavily favored to easily dispose of Holy Cross at Fenway park.  Holy Cross stood as Boston College’s sole obstacle to an invitation to the national championship game in the Sugar Bowl.

This 1942 Boston College squad deserved high praise.  In reaching a record of 8-0, Boston College outscored all adversaries by a combined score of 249-19.  Boston College scored more than 31 points per contest while limiting challengers to fewer than 3 points each game.  Of the eight wins, Boston College shut out five opponents.  After defeating Wake Forest on October 24 by a score of 27-0, the sports section of the Raleigh, North Carolina News & Observer ran the headline: “Baptists Beaten in Boston Battle”.  Great alliteration, but try to get away that headline today!

Preparations were in place for this lead-in game to an invitation to the Sugar Bowl.  After the Holy Cross game, the celebration would continue throughout Boston culminating at the Coconut Grove nightclub.  Coconut Grove, the multi-story Polynesian themed nightclub could accommodate the anticipated crowds of fans as well as the sailors on leave from the Naval fleet docked a few blocks away in Boston Harbor.  The Boston College football team would show up late that evening to the anticipated cheers and adoration of all.  What could possibly go wrong?

Apparently, no one advised Holy Cross of the invincible nature of the 1942 Boston College Eagles.  Holy Cross embarrassed Boston College by a score of 55-12 thereby dashing all national title aspirations.  All celebrations were abruptly cancelled, including the alumni, fans, students and football players gathering at the Coconut Grove.

Not to worry at the Coconut Grove.  19 naval vessels remained at port in Boston Harbor providing ample patronage for the nightclub.  The crowds would even be larger as many enjoyed some time off for the Thanksgiving weekend.  Having lived in Boston for a number of years, I speculate that at least some Boston College fans might still seek to attend the festivities at establishments such as the Coconut Grove even with a Boston College football loss.

Indeed, on Saturday night, November 28, 1942, as many as 1,000 people packed Coconut Grove to enjoy the South Seas ambience.  Coconut Grove offered large dining rooms, dance areas, and cocktail lounges.  Floor shows would begin about 10:30 p.m. to make certain that guests remained well-entertained into the night.

The basement level of the Coconut Grove housed the Melody Lounge.  At about 10:15 p.m., a small fire started in a corner of the Melody Lounge.  Once flames hit the South Seas paper decorations and fake palm trees, fire raced up the walls and across the ceiling covered with additional, flammable decorations.  Heavy black smoke filled the basement with both smoke and flames quickly traveling upstairs to the street level and the main dining room.

As shouts of “Fire!” rang out, electricity at the club was lost.  A witness who survived the fire, Navy Lt. John Edwards, noted: “it seemed that when the lights went out, everybody’s intellect went with them.”  Unfortunately, it appears that Coconut Grove included only two operational exits:  the main revolving door and an inward opening door.  The revolving door became jammed almost instantly overwhelmed by the rush of hundreds of patrons trying to escape.  The second exit did not fare any better with the wall of people pushing to flee through limited space.

With billowing black smoke, many could not even get out of the basement level Melody Lounge.  Smoke filling the main levels added to the chaos in the darkness.  492 people died in the Coconut Grove fire.  The cause of death of most – asphyxiation.  For those trapped in the Melody Lounge, extreme burns caused the most deaths.  Yet, many died due to injuries suffered while trying to escape.  These victims were trampled to death by their fellow patrons.

The occupancy limit at the Coconut Grove nightclub was fewer than the 492 people who lost their lives that evening.  On that fateful night, 1,000 patrons packed in Coconut Grove.  Coconut Grove did have additional doors.  However, to maximize the areas for paying guests, these other doorways were blocked or obscured for club operation.  One door with a “panic” lock designed to release in the event of emergency had been bolted shut.

Fire investigators could not assign a specific cause to the Coconut Grove fire.  Suspicion followed busboy Stanley Tomasewski who was in the area of fire origin to change a decorative light bulb.  Tomasewski admitted to lighting a match to assist with light bulb replacement in a dark corner, but denied starting the fire.  The fire department could not connect Tomasewski’s actions with the fire.

Even greater suspicion followed Coconut Grove club owner Barnett Welansky.  Despite failure to meet fire codes concerning occupancy limits and intentionally blockading exits, no actions were initially taken against Welansky.  Welansky remained close to Boston Mayor Maurice Tobin with this association bringing into question the zeal with which officials “investigated” the fire.  In addition, Welansky, a lawyer, possessed a long-standing relationship with his client Charles Solomon.  Upon his death a few years earlier, Solomon, a known mafia boss, transferred ownership of Coconut Grove to Welansky.  Close ties to top politicians and mob bosses with no real investigation pursued?  Tough to believe.

Nonetheless, removed from these local pressures, the Navy conducted its own, independent investigation determining that fault rested with Welansky in failing to comply with fire codes.  Further, the Navy found that Welansky expanded Coconut Grove without building permits or authorization from City officials.  These expansions failed to meet minimum code requirements and played into the poor safety conditions already in place.

With these public findings by the Navy and corresponding public outrage, the state opened a criminal investigation into Welansky.  A grand jury returned an indictment charging that Welansky failed to comply with building standards and allowed overcrowding.  A trial resulted in the conviction of Welansky on 19 counts of manslaughter.  Charged to serve 15 years, Welanksy spent but months behind bars only to be released for his supposed “failing health”.

The state charged nine others including a Boston firefighter lieutenant, police captain, building inspector and employees of the nightclub.  These officials and employees secured acquittals.

The fire commissioner did propose various measures to improve safety in public buildings designed to enhance the chances of escape in the event of emergency.  Chief among the these recommendations were installation of automated sprinkler systems and use of powered, illuminated EXIT signs.  Those recommendations served as the basis for establishment of new public safety codes adopted by municipalities and states over the next decade.

Doug Flutie’s 63 yard, last-second pass to Gerard Phelan will remain “The Pass” for college football fans.  This 1984 victory over Miami rightfully resides at the zenith of Boston College football lore.  And yet, Boston College’s 55-12 loss to Holy Cross in 1942 proves more impactful.  Absent that 1942 loss, hundreds of additional patrons would have been in attendance at Coconut Grove on that Saturday evening.  Many students and perhaps even the entire football team would have been present at the ill-fated nightclub.  Additional loss of life, while difficult to imagine, surely would have been a reality.

Wooden theater houses existed since the late 1590s, illuminated with open-flame oil lamps.  Movie houses existed since the early 1900s.  Certainly, it should have dawned on someone prior to 1942 that well-placed, illuminated EXIT signs should be mandatory in public settings.  It is of little solace to the families of the 492 who perished in the Coconut Grove tragedy that this loss served as the impetus for part of the modern public safety system.

In Estate Planning, we do consider legacy impacts.  None of my clients will throw a 63 yard Hail Mary pass on national television to salvage a victory in a flash moment establishing their legacy.  Nonetheless, some of these clients encountered the pain of tragedy as did the family members of the 492 Coconut Grove victims.  These clients desire to do something, anything, to seek to prevent their own tragedy being repeated for others.

For these clients, we consider charitable gifting to organizations and institutions to tackle the underlying problems.  We also evaluate establishing longer lasting foundations with educational, research, or action goals to address these issues.  For these clients, seeking solutions to, and prevention of, their own tragedies represents a step on the path forward.  These efforts become their own legacy, just as important and impactful as any football contest.

Doug Flutie won the Heisman Trophy in 1984.  The voting for the Heisman concluded prior to the Boston College vs University of Miami football game.  Even so, this Miracle in Miami cemented Flutie’s legacy.  Years later, Doug Flutie reflected on the Hail Flutie pass.  Flutie opined: “Without the Hail Mary pass, I think I would have been very easily forgotten.  We would have gone to the same bowl game, the Heisman voting was already in, and the direction of my career set.  Everything would have been the same, except that pass put this label on me as ‘it’s never over ’till it’s over’ guy.”

I suspect Flutie may be correct in this self-assessment.  Everyone knows Doug Flutie.  A few can name Gerard Phelan as the trivia answer to who caught The Pass.  No one can readily name other players from the 1984 Boston College football team.  No names from the 1942 Boston College football team immediately come to mind.  No legend or legacy plays capped a comeback against the underdog, Holy Cross.  The Boston College faithful crowds had no reason to gather at the Coconut Grove nightclub on November 28, 1942.  Losing that football game is a legacy for the 1942 Boston College football players worth cheering.

Goddesses Frigga and Taylor Swift

Congratulations!  If you are reading this article, you survived the one and only Friday the 13th which landed last Friday in this year’s calendar.  Friggatriskaidekaphobia, or fear of Friday the 13th, impacts an estimated 17 – 21 million people in the United States.  These folks alter their lifestyles and routines on any Friday the 13th.  They try not to travel, most especially air travel.  They refuse to conduct business.  Some do not even get out of bed on this most feared day and date.  Hopefully, you got past last Friday with nothing more than noting the date and exclaiming: “Oh, it’s Friday the 13th.  I hope I have no bad luck.”

Friday the 13th consists of two elements:  the day of the week and the number on the calendar.  A history, of sorts, exists for both aspects and, surprisingly, not all bad.  And yet, it is the confluence of both pieces of the bad luck puzzle which must combine to create disruption to ordinary affairs.  No one trembles on Wednesday the 13th.  Standing alone, Friday is not a harbinger of bad things to come your way.  Indeed, Friday is quite often welcomed as the beginning of the weekend and end of the work week, it may even be payday.  The marriage of the day Friday and the 13th day of the month results in this phobia for millions.

Historical events treat the number 13 poorly.  Part of this perception arises from the good fortune associated with 13’s next door neighbor, the number 12.  A sense of completeness rests with the number 12 in culture.  There exists 12 Days of Christmas.  12 months are in a calendar year.  There are 12 zodiac signs.  We find twelve tribes of Israel.  The number of gods of Olympus: 12.

13 has not fared so well.  In Norse mythology, 12 gods attended a dinner party at Valhalla.  Loki, the trickster god, had not been invited and crashed the party bringing the number of gods in attendance to 13.  Loki then tricked the blind god, Hodr, to shoot an arrow with its tip poisoned with mistletoe at Hodr’s own brother, Balder.  The poison arrow instantly killed the god of joy, light, and goodness, Balder.  The Norse gods proclaimed that with Balder’s death, Earth got dark and mourned as it was a bad and unlucky day when 13 gods came together.

In Christianity, the Last Supper witnessed Jesus dining with his 12 disciples (totaling 13).  The most infamous guest to arrive was the thirteenth – Judas Iscariot.  Judas’ betrayal lead to the crucifixion of Jesus on Good Friday.  13 appeared a doomed number in culture thereafter.

Captain William Fowler, a New York socialite popular from the 1860s until 1880s, established the Thirteen Club in an effort to remove the persistent stigma associated with the number 13.  The Thirteen Club met for a 13 course dinner on the 13th of each month at the Knickerbocker Club.  13 guests dined in Room 13 each month.  Members of the club entered under a ladder below a banner which read “Morituri te Salutamus” (“Those of us about to die, we salute you.”).  Four U.S. Presidents joined the Thirteen Club at one point in their careers.  The Thirteen Club may have assisted the social standing of some, but appeared to have minimal impact on the poor reputation of 13.

As for Friday, it started off slightly better than 13.  Enter Norse goddess Frigga after whom Friday has been named.  Frigga, a goddess of marriage, also symbolized fertility, motherhood, love and sex.  Frigga provided protection to homes and families.  The Day of Frigga, or Friday, then stood for ancient family values and relationships.  So far, so good.  

As Christianity spread in the Middle Ages, no tolerance existed for pagan rituals or worship of pagan gods.  Frigga, the goddess who invoked sex and fertility, had no place at the new party.  Christian Church leaders worked to conflate the reputation of Frigga with the goddess Freyja.  Freyja, also a goddess of fertility and love, further could perform magic, predict the future, and determine who would would die in battle.  Freyja traveled by chariot drawn by two black cats.  With Freyja’s dark side reputation wearing off on Frigga, the Church fathers recast Frigga a witch banished to a mountain top.  In this new role, Frigga allegedly convened a gathering of eleven other witches plus the devil – for a total of thirteen – to plot fateful ill turns for each coming week.  This effort to throw a pagan goddess under the bus may be the first instance of quite literally combining Friday with the number 13.

Side note:  Norse god Balder’s association with the number 13 does not appear related to Norse goddess Frigga’s positive association with Friday.  However, Frigga and Balder remain related as mother and son in Norse mythology.  Each Friday the 13th stands as an eternal reunion for these Norse gods.

Casting Frigga away remained only part of the process to find fault with Friday.  Numerous Biblical references portray Friday as simply a bad day.  Eve tempted Adam with the forbidden fruit on a Friday.  Cain murdered his brother Abel on a Friday.  Friday witnessed the fall of the Temple of Solomon.  Noah’s Ark set sail on a Friday with the Great Flood.  Of course, the crucifixion of Jesus took place on Good Friday.  

Beyond the reference to Norse goddess Frigga conspiring with her group of thirteen, historical accounts attributing misfortunes to Friday the 13th remained few.  One notable Friday the 13th event took place on October 13, 1307.  King Philip IV of France arrested hundreds of Knights Templar, charging them with fairly vague offenses.  The Crown executed many of these Knights Templar in an apparent effort to reduce their power and confiscate their wealth.  Some historians credit this massacre as the source of associating bad luck with Friday the 13th.

Nonetheless, by the 19th century, Friday the 13th clearly became firmly entrenched as the date of bad luck.  A French play from 1834 included a character who claims that his birthdate of Friday, December 13, 1813 served as the event from which all his misfortune flowed.  An 1868 biography of Gioachino Rossini solidly tied together events on Friday the 13th.  According to the biography, Rossini considered Fridays as unlucky days and 13 an unlucky number.  Rossini died on Friday, the 13th of November.

In 1907, author Thomas W. Lawson published his instantly popular novel, Friday the Thirteenth, which chronicled an unscrupulous stock broker who prayed on the superstitions of investors surrounding Friday the 13th to orchestrate a crash of the stock market.  The conjunction of Friday and the number 13 became complete.

Need further proof that Friday the 13th is unlucky?  The following events took place on Friday the 13th:  The Germans bombed Buckingham Palace in WWII.  A cyclone killed more 300,000 in Bangladesh in 1970.  The Costa Concordia cruise ship crashed off the coast of Italy in 2012 killing 30.  And, the ultimate proof, rapper Tupac Shakur met his fate in 1996.

Can 13 or Friday be saved?  Frigga did well in establishing Friday as the day of fertility and family.  Even the Medieval Church could not get rid of the name Friday or Day of Frigga.  We may need a new goddess.  One who can single-handedly take down the recording industry.  One with immense popularity.  One who, as a slight woman, can boost NFL television ratings through the roof.  Of course, the modern goddess Taylor Swift.

Taylor Swift has been on a mission to salvage the number 13 in a way that Captain Fowler would take pride.  Swift fearlessly embraces the number 13.  In fact, for Swift, the number 13 is her good luck charm.  Swift gushed in an interview about the number 13:  “I was born on the 13th.  I turned 13 on Friday the 13th.  My first album went gold in 13 weeks.  My first number 1 song had a 13-second intro.  Every time I won an award, I’ve been seated in either the 13th seat, the 13th row, the 13th section or row M, which is the 13th letter.  Basically, whenever a 13 comes up in my life, it’s a good thing.”  Of course, her agents could rig the system by placing Swift in the 13th seat of the 13th row in the 13th section at every event.  That little detail matters little to Swift’s legions of fans.

In Estate Planning, we often need to tackle fears.  Many potential clients express fear of the Estate Planning process.  For some, consideration of issues to arise after they pass feels as though they must confront their own mortality.  We strive to show these clients the the decisions and issues are not about death, but rather how these choices can make everything both easier and certain for loved ones and friends.  As early as the initial meeting, I begin to demystify the process by explaining the purpose of each Estate Plan document and how it functions as a critical component of their plan.  The discussions gradually and organically become more business-like with focus on the necessary decisions to be made.

For couples in this process, I quite often end up drafting 26 documents in a Living Trust Estate Plan.  I know the number is 26 as I use tabs with letters A-Z in organizing, indexing and binding the final documents for the clients.  I now hope that these couples do not think too deeply to recognize that the process results in 13 documents per each person.  We do not want to add fear of the number 13 in the planning process.

You keep trying Taylor Swift.  You have much history to overcome battling against Friday the 13th.  You have upstaged Patrick Mahomes at Kansas City Chiefs football games.  So, who knows, perhaps you can be the cure for the 20 million suffering from friggatriskaidekaphobia.  

Naked Commitment

Dateline: Coventry, England in the year 1045, give or take ten years.  Leofric, Earl of Mercia, possesses two distinct reputations.  First, the Earl and his wife continued as generous benefactors to religious houses.   In 1043, Leofric founded and endowed a Benedictine monastery in Coventry on a site of former nunnery.  The Danes destroyed the nunnery during an invasion in 1016 with Leofric determined to restore a religious purpose to the site.  Leofric’s wife “encouraged” him to grant land to the monastery of St. Mary and create an endowment for that monastery.  The power couple donated jewelry and commissioned works of art to be donated to these monasteries and other religious sites.

Second, the Earl possessed a well-earned reputation as a landowner who highly taxed those on his lands under this feudal system.  These taxes satisfied tribute the Earl owed to the King and supported Leofric’s own lifestyle, including the generous donations to monasteries and religious sites.  It is good to be in favor with the King!

In or about 1050, these reputations collided with Leofric insisting that his charitable generosity continue to be funded through his extensive land holdings.  That approach translated to even higher taxes on those who occupied the lands.  In Coventry, the new and excessive taxes hit so hard that residents confronted the choice of satisfying the new, additional tax or have their families go without food.  The Earl made clear that the only choice available would be to pay the taxes.

Enter Leofric’s wife who took pity on the people of Coventry.  The Earl’s wife interceded on behalf of the villagers begging the Earl to abandon the new taxes.  The historical accounts politely suggest that these requests were so frequent and so fervent that they amounted to marital nagging by Leofric’s spouse.  Exasperated, Leofric exclaimed that he would grant his Lady’s request if she would strip naked and ride a horse through the streets of Coventry.  Lady Godiva accepted the challenge.

Lady Godiva stood much to lose in bargaining for the town people.  While recognized in her own right as a Lady of the King’s court, she knew that her status deeply depended on the fortunes of her husband, the Earl.  She could not embarrass or cross Leofric to the point where he would relegate her to some non-relevant status.  Lady Godiva’s own riches and lifestyle were directly tied to the funds raised through taxes.  Her ability to direct charitable offerings to religious orders derived from collecting taxes on the residents of these lands.  Lady Godiva’s own reputation would certainly be an issue among the elite if she were to ride naked through the town.

Yet, Lady Godiva threw caution and her clothes to the wind in an effort to assist those in Coventry.  Lady Godiva, in a nod to her own modesty, issued a proclamation “commanding all Persons to keep within Doors and from their Windows, on pain of Death” during the ride.  She then rode her horse clothed only in her lengthy hair through Coventry and circled the marketplace before returning to the homestead.  Note that historical accounts differ on whether such a proclamation to remain indoors had been issued and whether an audience witnessed the naked parade of one.  Regardless, the Earl relented after Lady Godiva’s ride and eliminated the new tax.

The directive to remain inside during Lady Godiva’s ride ultimately lead to another legend which historians cannot readily accept: Peeping Tom.  The earliest published accounts of Peeping Tom date back to the 17th Century, hundreds of years following the naked journey.  The story of Peeping Tom had been part of the local lore in telling the story in Coventry for hundreds of years.

Peeping Tom, a local tailor in Coventry, could not resist spying on Lady Godiva as she processed through town in all her glory and only her hair.  Legends differ with Tom either killed or blinded for his peeping.  In one iteration, Lady Godiva’s beauty struck Tom blind.  Alternatively, God killed Tom for ignoring the command to remain inside.  God would so act to protect Lady Godiva as Godiva meant “beloved by God”.  In other tellings of the tale, the people of Coventry beat Tom half to death and blinded him for his transgression.  In any event, by 1796, a dictionary defined Peeping Tom as “A nick name for a curious prying fellow.”  

Whichever account of Lady Godiva may be accurate, one item remains certain.  Lady Godiva possessed commitment to her cause.  She bought into the protest at the risk of losing her social status, her spouse, her pride, her wealth, and her future income.  She stood up to the one in power knowing that the consequences could be catastrophic for herself and the people of Coventry.  

It strikes me that today, especially in this day of the 24 hour news cycle and immediate reporting of anything we can call “news”, we have many protests on almost any issue.  But Lady Godiva’s commitment appears absent.  We protest so that the voices are heard on the news cycle for today and then almost forgotten. 

Take, for example, the Kid Rock Bud Light protests from earlier this year.  Please note, I take no position on either side of the Bud Light protests.  I am not a fan of Bud Light simply because I do not like the taste of the beer.  I otherwise find nothing wrong with Bud Light.  I also have no problem with Kid Rock.  I do not own Kid Rock albums or CDs, but have no issue with his music.  I further understand that Bud Light wants and needs to market to all potential beer drinkers as part of its business model in our capitalistic system.  I appreciate that these marketing decisions may not sit well with some of the existing Bud Light consumers and they may rightfully protest.  No judgments.  No positions.  No questions.  No dog in the hunt for me.  

My point relates to commitment in any protest.  Quite vocally and splashed all over social media, Kid Rock famously fought a case of Bud Light.  The Kid took aim with his semi-automatic assault rifle at a case of unarmed Bud Light. The semi-automatic won, hands down, with the case of Bud Light blown away beyond recognition.  Take that Anheusser-Busch.  Kid Rock used that incident to bring voice to the protest against Bud Light’s marketing decisions which alienated Bud Light drinkers.  No more Bud Light at concerts, tailgate parties, floating around the lake or at backyard barbecues!

Except . . .  Kid Rock forgot about something.  Two months after the video of the battle between Kid Rock and the case of Bud Light went viral and Kid Rock declared that Bud Light is beer non-grata, the media dutifully travelled to Kid Rock’s Nashville bar.  Entering Kid Rock’s Big Ass Honky Tonk Rock ’n Roll Steakhouse, reporters were greeted with two bottles of Bud Light on the bar.  The reporters inquired if Bud Light was still being served at Kid Rock’s bar.  The bartender confirmed that Bud Light was never taken off the menu or offerings.  In fact, the bartender pointed out the two Bud Lights sitting on the bar.  The barkeep further confirmed that patrons still regularly ordered Bud Light.  Oops.

Apparently, Kid Rock drew the line for his own protest at his wallet.  His bar still served the very offending beer and Kid Rock still made money off those sales.  Kid Rock demonstrated commitment by taking down the case of Bud Light and then voicing opposition from his platform.  But Kid Rock’s commitment did not equate with the naked commitment of Lady Godiva.  Kid Rock placed his own potential income in a position superior to the underlying protest.  His commitment possessed limits and he would not risk it all as did Lady Godiva.

Do not misunderstand, Kid Rock pushed the protest against Bud Light father down the road.  It could be claimed that Kid Rock’s efforts gave oxygen to the fire against Bud Light.  Bud Light’s sales have taken a hit.  The protest worked, in part, due to Kid Rock and his actions.  However, Kid Rock cannot legitimately claim to have been “all in” with his commitment so limited protecting his own interests.

I do not suggest that Kid Rock should ride his Harley buck naked down Broadway outside his Nashville bar to bring further attention to this protest.  Hopefully, none of us wish that approach.  When a protester, especially a high profile person, stages such a public demonstration as protest, then commitment must be genuine and across the board.  You need naked commitment as with Lady Godiva.  Kid Rock did not achieve that level with still looking out for himself.

In Estate Planning, it is often difficult for clients to achieve naked commitment when evaluating who should serve in agency positions in the plan.  I have candid and sometimes challenging discussions with clients to recognize who would best protect their interests if and when they can no longer act for themselves.  After discussing how one child cannot handle financial affairs and evaluating trust protections necessary for that child for any distribution, the same parents then want to name that child as their Attorney in Fact under their financial powers of attorney.  I scratch my head and ask why the parents want this financially irresponsible child to handle their financial affairs.  I receive response that the child is the oldest and that the oldest child should have this responsibility.  I gently suggest that others may be better suited, even if not the eldest.

Commitment to a child is not a bad thing, but Estate Planning demands naked commitment.  Honest, candid and complete analysis of strengths and weaknesses of those who will serve as your agents must be mandatory to protect your interests and ensure that your wishes are followed.  Commitment light will not do.  Lady Godiva commitment is needed.

Midnight Riders

Midnight Riders

“Listen, my children, and you shall hear

Of the midnight ride of Paul Revere,

On the eighteenth of April, in Seventy-Five . . .”

With this opening, Henry Wadsworth Longfellow began “Paul Revere’s Ride” – the poetic assigned reading for all of us in grade school. On this, the 248th anniversary of the famous patriotic and nocturnal journey, we should celebrate the accomplishments of William Dawes, Samuel Prescott and 16 year old Sybil Ludington. Dawes, Prescott and Ludington? OK, more on those folks later. First, we can figure out how Longfelow may have misled us about Paul Revere.

A few disclaimers. Foremost, a poet of the stature of Henry Wadsworth Longfellow is allowed as much literary license as he saw fit to massage facts in order to craft an excellent literary gem. I fault him not. Second, any comment about Paul Revere in no manner diminishes his accomplishments, his dedication to the cause of the Colonists, or his heroic efforts. Third, at least my teachers in grade school and perhaps across the U.S., accepted as gospel Longfellow’s account in Paul Revere’s Ride with no effort to discern the underlying facts. In a sense, why let the facts get in the way of a good tail? Perhaps these instructors were simply too lazy to dig even modestly below the surface. Any negative comment or remark about a grade school teacher is NOT directed to the holy Sisters of Saint Joseph from my grade school (as I still fear retribution!).

We all recall Longfellow’s poem. Upon receiving the signal of two lanterns from the North Church tower on April 18, 1775, Revere dashed away at midnight on horseback on a twenty mile journey to alert villagers and farmers alike that the British military was on the move. Paul Revere galloped to Lexington and Concord with all then standing prepared to send the British scurrying back toward Boston. While not to be found in the poem, Revere supposedly shouted “The British are coming! The British are coming!” throughout this ride.

We can easily tackle “The British are coming!” chant. Not a chance that Revere shouted that phrase during his ride. The British soldiers were known and identified as the “Regulars”. Of course, “The Regulars are coming!” fails to hold the same cache as the popular phrase. Recall also at this time in 1775, many Colonists Revere alerted still considered themselves British even with all the problems with the Crown. More importantly, the British occupied many areas along the roadways and had soldiers positioned in the woods. Shouting was not the way to go to covertly alert others. Revere would approach houses of those known to be friendly to the cause and, at most, knock on the doors or window frames to provide the notice.

I always held the view that Paul Revere bravely rode alone on this dangerous assignment. Longfellow makes no mention of anyone else with Revere. While it did not lessen the danger one bit, the aforementioned William Dawes and Samuel Prescott rode together with Paul Revere to warn others. The three would split up to cover more ground and meet again on the designated path to notify as many as possible of the approaching marching troops. As they rode, the three solicited more volunteers. By dawn, a group numbering as many as 40 Colonists were riding to alert the villagers and farmers on the way.

Notably, Paul Revere never even reached Concord as we all so firmly believed. The British intercepted Revere, Dawes and Prescott. Dawes and Prescott escaped in different directions on horseback with the British temporarily detaining Paul Revere at Lexington. Dawes fell from his horse and lost his way on foot. Only Prescott reached and alerted the residents of Concord of the need for the immediate call to arms.

In addition, while one benefit of the midnight ride was, indeed, to alert the “friendlies”, the primary purpose of Paul Revere’s ride was to reach John Hancock and Samuel Adams who were then housed in the Lexington area preparing for the soon to be fight with the British. Revere did reach Hancock and Adams with the key advice thereby allowing a counter-offensive to be placed in motion.

Paul Revere’s midnight ride will remain the glorified event of his existence courtesy of Henry Wadsworth Longfellow. Yet, surprising at least to me, Paul Revere accomplished so much more than this vital nocturnal notice journey. Raised in Boston’s North End, Paul Revere was the third of twelve children. His father, a silversmith, arrived in Boston at age 13 from France. This lineage alone could explain antagonism toward the British.

Revere left school at age 13 and began his silversmith apprenticeship with his father. Learning the silversmith trade allowed Paul Revere to develop connections throughout different social strata in Boston – relationships he would use for the remainder of his life. Revere’s father died unexpectedly with Paul Revere legally too young to become master of the family silver shop. However, not being too young for military service, Revere signed up for action in the French and Indian War in the 1750s. These few years in the military further expanded Revere’s network. After this service, Revere took over the family business.

During the 1760s, Revere’s business suffered due to excessive taxes levied on the Colonists, including the Stamp Act of 1765. To assist to make ends meet, Paul Revere hung out a shingle as a dentist. Alright. It took years of apprenticeship and years of formal training to become a silversmith. Then current laws or regulations precluded Revere from serving as master of a silver shop until he reached a minimum age. Yet, becoming a dentist required only a sign on the door.

Revere became friendly with one patient, Joseph Warren. Warren served as one of the “Loyal Nine”, a group organized to protest against the Stamp Act. This association then pulled Revere into the Sons of Liberty with Revere responsible for engravings which served as opposition pieces to British rule. Revere’s opposition roles grew during this time with Paul Revere serving as one of the ringleaders in the 1773 Boston Tea Party.

Paul Revere accepted the position of courier for the Boston Committee of Public Safety. This position required travel to New York City and Philadelphia. This new position fit well with Revere’s service as a “mechanic”.

The mechanics were a group of 30 spies dedicated to observing and reporting on the movements of the British. The mechanics, the first known spy ring in the Colonies, regularly met at the Green Dragon Tavern in Boston, exchanging information. Revere’s extensive connections provided opportunities and served as conduits to pass information. Revere’s work-related travels provided cover to transport these secrets. Side note, the North Church, Paul Revere’s house and the Green Dragon Tavern still exist in Boston with each worth the visit on your next trip.

During the Revolutionary War, Revere dutifully served with his most famous contribution remaining the Midnight Ride. After the war, Paul Revere made significant contributions in the business world. Revere modernized certain silver foundry processes which, in hindsight, were among the first steps toward automation. As a silversmith himself, Paul Revere valued artisans. He employed such skilled workers offering flexible hours, higher wages correlated to skill and experience levels, and liquor available on the job.

Learning about Paul Revere through Longfellow’s verse represented a different grade school experience than most lessons. Perhaps that dynamic explains why we all so well remember Paul Revere’s Midnight Ride. Kudos to Longfellow. Would not Revere stand out so much more if we were also taught that he ran a spy ring, he dumped tea in Boston Harbor, and he gave his workers free booze?

Longfellow never mentions William Dawes or Samuel Prescott, but their contributions remain in the history journals. Good luck finding mention of Sybil Ludington. As it turns out, in April 1777, almost two years to the day after Paul Revere’s famous ride, the British planned a surprise attack on Danbury, Connecticut. A strategic April attack should catch the Americans unprepared as most soldiers were dismissed to prepare their fields for the upcoming planting season. American Colonel Henry Ludington received news of the British plans to march on Danbury, but all of Ludington’s men had been relieved to tend to their farms.

Colonel Ludington turned to his 16 year old daughter to carry message of the surprise attack and rally the troops in response. Sybil set off at 9 p.m. on a storm filled night and rode not the mere twenty miles logged by Revere, Dawes and Prescott, but on a forty mile trek to warn of the British plans. Sybil did not have time to stop and knock on doors of the “friendlies” so she used a long branch to bang on window frames and doorways as she dashed by households on horseback. Sybil rode through the rain-filled night with over 400 militia men then headed toward Danbury by dawn.

Colonel Ludington apparently had no hesitation relying on his 16 year old daughter for this life-threatening assignment. The few accounts of the Ludingtons reference many children with Sybil the eldest. There is never mention of a Mrs. Ludington, but notes that Sybil served as the primary care-giver for her numerous, younger siblings. Perhaps for Sybil a night galloping along a forty mile stretch during a strong Spring storm seemed more appealing than once again caring for baby brothers and sisters.

A key element in proper estate planning involves naming those who will serve as your agents in various powers of attorney. Clients must name agents to serve in a general power of attorney to manage business affairs in the event of the client’s incapacity. Perhaps more importantly, an agent needs to be named to make health care decisions, possibly life or death determinations, in a medical power of attorney.

Clients should want a Paul Revere in these agency positions. Revere assisted in opposing the Stamp Act. He organized the Boston Tea Party. He ran a spy ring. When called upon for his Midnight Ride, Revere had over a dozen years of experience with similar issues. No big deal for Paul Revere. Such an agent with vast experience and preparation would serve well. But few Paul Reveres exist.

The clients need a Sybil Ludington. She had no wartime service or involvement. Her credentials included child care. Yet, her father saw in her the ability to tackle this different and demanding task, perils and all. Sybil rose to the challenge and performed beyond expectations when called upon. The agents in your estate plan need not be professional trustees, bankers or physicians. They need to be Sybil Ludington who can rise to meet the circumstances.

You can listen my children, but there is still no tail

Of a sixteen year old girl who refused to fail.

Yet, she rode the storm all o’ the night

To rouse the troops to join the fight.

Sweet, Sticky Death

Sweet, Sticky Death

For residents in and near East Palestine, Ohio, life forever changed after the train derailment earlier this year.  20 of the 150 train cars derailed in the industrial accident resulting in explosions and releases of chemicals into the air and ground.  Five of the derailed train cars carried vinyl chloride, a particularly toxic chemical used in manufacturing plastic products.  Vinyl chloride is a confirmed carcinogen which can also cause dramatic short term adverse health impacts.  To avoid additional explosions, Norfolk Southern undertook a controlled burn of the contents of a number of the derailed train cars which resulted in additional releases of toxic chemicals in the area.  

We now stand about a month after the derailment.  Despite the publicity stunt of government officials drinking the local water to prove its safe nature and promises to incinerate the soil from the derailment area, East Palestine, Ohio simply will not recover from this situation.  Notably, the officials did not drink the water at the nearby river where dead fish began washing up on the shores.  Impacts on health may be quickly recognized and diagnosed.  Longer-term effects may not be so easily tied to the accident.  Many residents now confront a lifetime of medical monitoring and ceaseless worry about the well-being for themselves and their families.  

Not as significant as personal health issues, but certainly dramatic will be the negative property impacts.  East Palestine is now stigmatized as synonymous with a cancer-causing train wreck.  Houses in East Palestine will not sell.  Those with their primary savings tied up in their house values will lose most, if not all.  Businesses in East Palestine will fail due to the accident.  New businesses will not pop up to replace shuttering shops.  The city’s tax base will shrink making it exponentially more difficult for local government to provide relief.  I predict that the site of the derailment will be made into a municipal park in about ten years.

My years as an environmental litigator addressing toxic spills allows me to put forth this grim blueprint.  If questions remain as to the extent and duration of this stigma, ask the residents of Livingston, Louisiana.  A 1982 train derailment of 36 cars carrying similar toxic chemicals resulted in releases of toxic substances to the environment compounded by a controlled burn of chemicals in other derailed train cars.  The Livingston residents endured decades of medical monitoring and testing.  Groundwater monitoring wells remain in place some 40 years later.  While houses are difficult to sell in Livingston due to this stigma, there is a nice municipal park located at the scene of the industrial accident.

What caught my eye in following the East Palestine derailment situation was EPA’s description of vinyl chloride released to the environment.  EPA advised the residents that vinyl chloride could have a “mild, sweet odor.”  This simple description immediately sent me back to my years spent in Boston, Massachusetts.  Of course, I am referencing one of the  “sweetest” industrial accidents in American history:  The Great Molasses Flood of 1919.  

On January 15, 1919, a 2.3 million gallon tank filled with molasses exploded resulting in a 40 foot high wall of molasses racing down Boston streets at 35 miles per hour.  Nothing but debris remained of the 50 foot high, 90 foot diameter steel tank.  The explosion of the tank, located on the water’s edge in Boston’s North End, killed 21 people, injured another 150, and resulted in the loss of countless horses.  The wave of molasses swept buildings off their foundations and crushed other structures in its path.  As reported in the Boston Post:

“Molasses, waist deep, covered the street and swirled and bubbled about the wreckage. . . . Here and there struggled a form – whether it was animal or human being was impossible to tell.  Only an upheaval, a thrashing about in the sticky mass, showed where any life was. . . . Horses died like so many flies on sticky fly-paper.  The more they struggled, the deeper in the mess they were ensnared.  Human beings – men and women – suffered likewise.”

A surviving child’s experience was subsequently captured in an article in the Smithsonian:

“Anthony di Stasio, walking homeward with his sisters from Michelangelo School, was picked up by the wave and carried, tumbling on its crest, almost as though he were surfing.  Then he grounded and the molasses rolled him like a pebble as the wave diminished.  He heard his mother call his name and couldn’t answer, his throat was so clogged with the smothering goo.”

A newspaper article quoted an unidentified witness in describing the wall of molasses as “sweet, sticky death.”  The editor blew it in not using that quote as the headline.

Clean up crews used salt water wash from a fireboat to wash away the molasses as well as sand to absorb it.  Clean up of the North End took months.  Portions of Boston Harbor remained brown with molasses well into the summer.  Clean up crews, residents, and sightseers tracked the sticky molasses from the North End across the Boston area.  Platforms and trains on the “T”, Boston’s subway system, were described as “sticky” for months after the accident.

But what caused the tidal wave of molasses?

Purity Distilling, the company which owned the tank, immediately claimed that Italian anarchists blew up the tank as alcohol produced from the molasses would be used to make munitions.  Why wait for an investigation?  In fact, why wait for rescue efforts to be completed or clean up operations to commence?    Why wait for funeral services?  Why bother inspecting the remains of the tank or evaluating the circumstances before going public with conclusions?  Instead, Purity Distilling turned to the well-worn corporate playbook of placing blame anywhere except on itself combined with a public relations push to cast unwelcome North End Italian immigrants in a poor light.

In this instance, a surprising group undercut the Purity Distilling corporate greed machine.  Was it a group of people seeking to assist the powerless and voiceless North End Italian immigrants?  No.  Was it a collection of government officials protecting those they had vowed to serve?  Nope.  Was it a flock of ministers, priests and other religious leaders caring for the injured and serving the families of those who lost their lives?  Not even close.  The group which stood up to Purity Distilling and outmaneuvered the corporate gamesmanship was a gaggle of lawyers.

These lawyers rode the wave of the Great Molasses Flood to the highest court in Massachusetts changing the law applicable to class actions and expanding the court’s power to redress corporate conduct.  The lawyers successfully argued that class action proceedings should extend to the type of mass tort victims such as those killed or injured by the Purity Distilling tank explosion.

Importantly, along the way in the trial court, these lawyers convinced the judge to appoint an independent auditor to determine the root cause of the tank explosion.  OK.  Lawyer greed outweighs corporate greed, or at least stays one step ahead of corporate greed.

As an initial matter, the auditor determined that Purity Distilling knew it had a problem with the molasses tank.  Installed in 1915, the tank leaked so continuously that Purity Distilling painted the tank brown in an effort to disguise the leaks.  Nearby residents regularly collected molasses leaking from the tank for their own use.

The auditor further discovered stress cracks in the steel at the base of the tank.  Any one of these stress cracks could have reached failure causing the explosion.  In 2014, nearly 100 years after the accident, forensic engineers analyzed tank remains determining that the steel should have been twice as thick as the steel used in the tank walls.  Standards for tanks were lacking in 1915, but the science existed and it was known – or at least knowable – that the tank, as designed and constructed, could not hold the weight of a fully loaded tank.

Contributing also to the cause were the winter weather conditions and Purity Distilling practices.  The day before the tank explosion, the temperature in Boston was two degrees F.  The temperature rose rapidly to 40 degrees F on January 15 which would cause the molasses already in the tank to expand.  In addition, the tank was then filled from a ship’s cargo of molasses.  The ship crew heated the molasses in the cargo hold to assist with pumping the viscous fluid thereby further expanding the molasses volume.

Those Italian anarchist immigrants appear rather scientifically adept with tremendous metallurgical knowledge to create those conditions resulting in explosion of the 2.5 million gallon tank.

I conceptually understand that immediate release of more than 2 million gallons of any liquid or semi-liquid material will cause a catastrophic scenario.  Nonetheless, I have difficulty visualizing molasses, in any amount, traveling at 35 mph.  I turned a half filled jar of molasses from our pantry on its side and patiently waited for the molasses to travel the length of the jar.  Admittedly, honey moved even slower in this carefully planned scientific experiment.  Yet, I still do not recall anyone ever exclaiming to be “Fast as Molasses”.  Indeed, molasses’ reputation is just the opposite.

I digress.  The Great Molasses Flood of 1919 left the North End in Boston with its own stigma which lasts to today.  Bostonians claim to be able to smell a sweet molasses odor in the North End, especially during the warmer summer months.

While I was aware of this tale while I lived in Boston decades ago, I never experienced the molasses effect.  I confess that my many trips to the North End were culinary adventures and not seeking molasses cookies.  The North End is the “Little Italy” section of Boston.  Each restaurant is outstantding both in comparison to the next and on its own.  The pastry shops offer incredible delicacies while enjoying an espresso.  The aromas on and around Hanover Street in the North End offer many and varied welcoming smells, but among them is not molasses.

The other visits to the North End included the obligatory trips to the Old North Church (One if by land, two if by sea. . . .) and Paul Revere’s house.  While removed from restaurant row and the culinary smells, these other areas in the North End again did not present any evidence of molasses.  To this day, the molasses stigma continues.

These man-made disasters with long tail stigmas can serve as lessons in the estate planning arena.  If you proceed with no estate planning or rely on a simple will, your estate may be in a sticky situation in trying to address assets which become stigmatized in their own way.  I am fairly confident that homeowners in East Palestine never thought that their homesteads may become a liability rather than their largest single asset.  Those “assets” may become tied up for months or years in probate proceedings or in litigation with lenders or others after the owner passes.  During those periods, the estate will have carrying costs for the properties and the properties may fall into disrepair.  Loved ones may be saddled with a new, large liability rather than an expected inheritance.

Stigmatized assets are not limited to houses near train wrecks or those covered by a gooey mass.  The recent revelations about cryptocurrencies illustrate how an investment darling can quickly become a nightmarish date.  The ability to quickly exit from an asset class may mean the difference between a modest financial hit and total loss.

A proper estate plan cannot undue the stigma or change economic conditions, but it may provide flexibility in how the matters may be addressed.  If within a proper trust structure and if the trustee has been granted proper powers, the asset which becomes a liability may be able to be addressed quickly and without judicial oversight.  Trustees should have the power to address unproductive assets.  That may mean sale at a loss or even abandonment of property.  The trustee can determine the best course of action and act now rather than be stuck in expensive and time consuming process or litigation before acting.

Circumstances beyond our control may force change upon us.  A proper estate plan cannot anticipate a 40 foot wall of molasses upending your life, but it can include flexibility to ensure that your estate does not become stuck in the aftermath of a disaster.

And the former Purity Distilling tank site in the North End?  It is now a municipal park.  You have to look hard, but you can find a small plaque at the site of the tank itself.  Good luck to those in East Palestine.  At least you have a nice municipal park in your future.

Tragedies of a Tragedy

Tragedies of a Tragedy

Two days after this past Christmas, I finished vacuuming dog hair and completed my projects in order to return home after our family Christmas vacation.  The rest of my family left the day prior which allowed me to clean up without the four-legged companions.  With car packed, final walk-through done, and thermostat turned down to lower than 65 degrees despite the deep freeze outside, I felt a little off and decided to sit down for a minute before my seven hour drive.

Six hours later, I crawled off the couch in desperate search of aspirin and a goal to crank up the thermostat.  I was burning up with a fever and chills the likes of which I could not recall in all my years.  Swallowing felt as if shards of glass remained lodged in my throat.  I knew I was in bad shape, but still marveled at how quickly such an illness struck and with such strength.

I found two Tylenol and two Advil. I could make it until the next morning.  I turned up the heat, crawled under all the blankets I could find, and did not move until the next morning.  At some point, I called my wife to advise that I would not be home and asked her to check on the condition of the boys who travelled back to their places after Christmas.  No one else was ill.

The next morning, I recall getting to the pharmacy, purchasing Tylenol and Advil as well as any over the counter medication I could grab.  I drove the seven hours to get home, but honestly recall very little of the trip.  First thing Thursday morning, now 48 hours into an excessively high fever and flaming throat, I sat in my car outside a doctor’s office.  I would not be allowed in until they secured test results from swabbing my throat and nasal cavities.  Good news!  No flu which was rampant at that time.  Not so good news.  Strep throat.  Even less good news.  Covid.

I had been vaccinated.  I had been boosted.  I had been boosted again.  I sanitized.  I socially distanced.  I tried to stay in my bubble as much as reasonably possible.  I stopped handshaking and had only been fist-bumping ever since we came out of quarantine.  I could not escape forever the “next” or “new” iteration of Covid.

But where could I have picked it up?  Our nuclear family did not really interact with others over the Christmas weekend as we played cards and board games.  No one else entered our family bubble.  No one else in the family became ill with all family members then repeatedly testing negative for Covid.  Two prime candidates emerged: a crowded Christmas church service and Walmart.  We went to Christmas Eve Mass on Friday evening with Covid not knocking me flat until the following Tuesday.  Perhaps too much time between exposure and onset of the illness.  Plus, no one else in close contact became sick.  I went to Walmart on Monday, one day before Covid struck, for cleaning supplies.  The crowd size at Walmart was decent as many were lined up to return gifts.  In addition to shoppers, there were Walmart workers.  To quote Jack Nicholson in As Good As it Gets, “I seen the help, it’s a judgment call.”  It would be easy to cast blame on an Alabama Walmart as ground zero for my Covid infection, but the truth remains I just do not know the source (it was definitely Walmart!).

The diagnosis within 48 hours allowed me to be placed on certain Covid medication designed to dramatically shorten the length of the illness.  Together with an exceedingly hefty dose of antibiotics for the strep throat, I rebounded amazingly quickly.  Nonetheless, the doctor instructed that I remain entirely isolated from all others for an additional five days.  Exciting New Year’s Eve on the horizon for us as I remained quarantined in one of our son’s childhood bedrooms.

After a few days of medication and rest, I started writing.  Focusing on legal work challenged me at this stage, but I discovered I could write for a while, rest for a while, then write again.  Over the next few days, I knocked out a few Blog articles and some client educational blurbs.  The solitude permitted me to focus on writing.  Wow!  Something positive from my own little Covid isolation.

During the pandemic, I wrote Blog articles, at times, seeking to find the positive in our bubbles and our own quarantine.  I noted how we stoked socially distant friendships among neighbors as we constantly went out for walks.  I observed how we tackled long put off chores such as cleaning out the attic or those spare bedrooms that our now grown kids once occupied.  (Note to self, replace a bed in kid’s former bedroom so I have a place to sleep in future quarantine).  Now I discovered another unanticipated benefit: time to contemplate and write.

It struck me that perhaps some of our most accomplished artists may have created significant works during forced quarantine and quiet periods of a pandemic.  Prior to advances in medicine and science, pandemics, of course, were at least not uncommon.  It took very little research to discover some historic, pandemic-based gems courtesy of the Bard, William Shakespeare.

Shakespeare’s prime writing years covered the 1590s through the first part of the 1600s.  Pandemics, resulting from plagues, struck the entire European continent, and most especially larger cities, such as London.  Quarantines became a regular feature of life during the period from 1603-1613.  To understand how plague-induced quarantines impacted Shakespeare, it assists to appreciate the way young theater businesses evolved at that time.

A mere generation before Shakespeare, in the mid-1500s, theater groups would travel to their audiences.  The groups, or theater troupe, performed at outside venues with locals gathering for performances.  Private, indoor theater productions could be arranged for the elite, but such shows remained the exception.

By 1590, dedicated theaters began appearing in larger populated areas.  These theaters attracted a fairly broad segment of society.  Theater companies became based in and associated with theater buildings.  Shakespeare matured as an actor and young playwright in 1590s England.  His success resulted in his ownership stake in two theaters by the early 1600s: the Blackfriars Theatre and the Globe Theatre.  By 1606, Shakespeare controlled the King’s Men troupe of theater actors.

Theaters constituted the Netflix of the early 1600s.  Theater goers constantly demanded new performances.  In part, Shakespeare’s prolific writing served as the fuel for his theaters.  The Bard needed to pump out new productions to appease demand.  Romeo and Juliet quickly penned just to satisfy the next Summer season.  The Taming of the Shrew shrewdly jotted down just to have another new feature.  Incredible.

However, the pandemics of the time struck the burgeoning theater companies like a Greek tragedy.  While little may have been understood about the medical and scientific side of the plagues, 1600’s society knew that larger crowds resulted in faster spread of the disease.  These new theaters and the crowds they attracted became associated not only with the spread of plague, but the cause of plague itself.  Theaters and their productions dared to portray lewd scenes and cross-dressing actors.  Therefore, theaters must be the source of the disease!  An early 1600’s preacher famously declared: “The cause of plagues is sin, and the cause of sin is plays.”  Good thing that we as an enlightened society moved away from demonizing those with whom we disagree.

As a result, when a pandemic hit, theaters were the first structures ordered to shutter.

The outbreak of plague in 1606 in England caused extraordinarily lengthy closures of all city-based operations.  The actors from Shakespeare’s theater companies left for the countryside which had fewer restrictions in order to continue outdoor performances.  Shakespeare struggled to keep his theater companies afloat and he himself relocated to the country in his own quarantine.

Shakespeare’s work product penned during the 1606 exile:  King Lear; Antony and Cleopatra; and Macbeth.  Absent the 1606 plague, we would not have the tremendous insult: “You are not worth the dust which the rude wind blows in your face.”  We would not know that the prince of darkness is a gentleman!  The darkest of all Shakespearean plays, King Lear, would not have been written.

Think of the many future works using the concept of “something wicked this way comes” from Macbeth which would never have been written.  Would the damned spot ever get out?  Imagine the consequences if Birnam wood never came to Dunsinane hill!  And how could we know that eternity was in our lips and in our eyes if not spoken by Cleopatra?  The tragedy would be never having these Tragedies.

Returning to the theaters for the 1607 season in Shakespeare’s theaters could have included these classic plays.  Not a bad year to have purchased season tickets!

Our own pandemic with Covid represented the first real event I could use with clients in discussing estate planning issues and the need to prepare for the unknown events and uncertainties.  We really have not had events with global impacts involving loss of life since WWII.  I do not dwell on the fragile nature of life in those discussions as the message is plain.  I do seek to find uplifting or positive messages of what may arise from those dire circumstances.  I now can include my favorite Shakespearean play, Macbeth, as the cornerstone example of positives coming out of challenging situations.

Shakespeare during quarantine: “Double, double, toil and trouble, fire burn and cauldron bubble.”  Me during quarantine: “Oh boy!  I wrote two Blog articles!”  Somehow my effort feels much less of an accomplishment now.  Thank you, Mr. Shakespeare, for your real work during a pandemic, serving once more as an inspiration, and penning classics as if crafting simple thank you letters.  I am going to re-read Macbeth again and marvel at my pedantic existence.  If you become stuck in your own forced time out from all others whether due to Covid or any other circumstance, look to Shakespeare as reminder that we can all try a little harder.

Slide Rules, A Big Bang, and the Moon

Slide Rules, A Big Bang, and the Moon

Dateline:  1958 – Cold War America.  The United States failed twice to launch a man-made satellite into orbit.  In late 1957, the Soviets successfully launched a beach ball sized satellite under its Sputnik space program.  Americans feared that the Soviets remained perched on the cusp of winning the Space Race, and with it, nuclear supremacy.  This “Sputnik Crisis” sent the already overheated space exploration community into hyper-drive.  No costs would be sparred to achieve space supremacy.

The U.S. needed something grand to recapture the faith of the American people, justify the flow of endless dollars to the space program, and show up the Soviets.  Top Secret Air Force Project A119 was just the ticket.  In 1958, the U.S. created Project A119 – A Study of Lunar Research Flights.

Detonating a nuclear bomb on the surface of the Moon remained the stated goal of Project A119.  Blowing up the Moon with a nuke would assist in studying mysteries in planetary astronomy and astrogeology.  In addition, the flash from a nuclear explosion on the Moon should be visible from earth, including being visible to the Soviets.  Ahh.  There it is.  The true mandate for Project A119:  a show of military force and boost to domestic morale to respond to the Sputnik Crisis.

Officially, Project A119 remains a Top Secret, classified project.  The U.S. Government will not acknowledge its existence or respond to formal requests for information.  Enter a youthful Carl Sagan.  In 1958, Carl Sagan continued his doctoral studies at the Illinois Institute of Technology, including the development of mathematical projections of the expansion of a dust cloud resulting from detonating a nuclear bomb on the lunar surface as part of Project A119.

In 1959, Sagan applied for an academic scholarship at the University of California, Berkeley.  In the application, Sagan provided extensive details of his involvement with Project A119, including identifying two papers to which Sagan contributed:  Possible Contribution of Lunar Nuclear Weapons Detonations to the Solution of Some Problems in Planetary Astronomy, and Radiological Contamination of the Moon by Nuclear Weapons Detonations.  Apparently, Carl Sagan missed all the memoranda and instructions about the Top Secret nature of Project A119.  These disclosures were still maintained under wrap until a 1999 biography of Sagan disclosed them to the public at large.

After publication of this 1999 biography, the leader of Project A119, Leonard Reiffel, acknowledged that a ten-member team evaluated blowing up the Moon.  The team studied utilizing different types of atomic bombs; effects of an atomic explosion in oxygen-free space; Earthly visual impacts of a nuclear detonation on the dark side of the Moon; and magnitude of resultant dust clouds.  In offering these revelations in 2000, Reiffel, a retired NASA top executive, denunciated all the work for Project A119, noting that as a scientist, he was “horrified that such a gesture to sway public opinion was even considered.”  Better late than never with remorse.

Yet, in 1958, apparently neither Reiffel nor Sagan (or any of the ten-member scientific team) were sufficiently “horrified” with Project A119.  Indeed, they proceeded studying the atomic, scientific, engineering and mathematical angles of blowing up a nuclear device on the Moon.  In 1958 America, we were not far removed from Senator Joseph McCarthy’s Communist witch hunts.  The father of the atomic bomb, Robert Oppenheimer, became person non-grata after publicly opposing development of a thermonuclear bomb.  The Project A119 scientists lived through the atrocities of WWII, with some of them fleeing to the United States.  The Cold War represented part of the fabric of everyday life.  Failure to embrace and support a patriotic cause of the U.S. would get you labeled a Communist, or at least a sympathizer.  These real-life dynamics do not justify Project A119, but they do help to explain how the scientific community actively participated in such an exercise.

Today, the mere idea of blowing up the Moon does not merely sound incredibly stupid, but also insane.  In 1958, perhaps the full effects of nuclear explosions were not truly appreciated or understood.  Nonetheless, the Government, scientists, and general public certainly knew that atomic weapons presented significant, and lasting, impacts.  To illustrate both the known dangers and limits of our knowledge at that time, simply look to the nuclear bomb drills in schools with students taking cover under their desks for protection from nuclear bombs.  Radiation could not possibly permeate those protective Math and Spelling books in the desks above the students’ heads!  In fairness, if nuclear fallout had to stop to diagram a sentence, it may have been stunted in its progress.

Even with consideration of societal pressures and dynamics in the late 1950s, the U.S. charged some of the very top scientists to devise a plan to blow up the Moon.  Just who made the decision and how did it unfold?  With Top Secret status still invoked by the U.S. 65 years later and generally limited available information, we can only speculate as to the origins of the plan to nuke the Moon.  Two groups appear as prime candidates to start us along this nuclear path:  the Military/Political faction and the Scientific community.  I envision that each group approached the decision in different fashions.

The Scientific Committee brought together by the Air Force would have consisted of top scientists, engineers and mathematicians.  The foundation meeting might have progressed as follows:

“Okay, Gentlemen [Side Note: All Committee members are male as the professional deck was entirely stacked against women in 1958 and beyond], the Soviets successfully launched a satellite and our two efforts failed.  America relies on us to come up with an amazing and better plan.  Any ideas?”

“Well, Boss, hear me out on this one.  I have out of the box thinking here.  We have trouble with satellites, but we are pretty good with nuclear bombs.  We can by-pass the entire circling the Earth phase and proceed directly to delivering a nuclear bomb to the Moon.  We can detonate it on the Moon’s surface so that the Soviets can see the mushroom cloud.  Now, that will be impressive.”

“That is big thinking, indeed.  But what about environmental impacts, radiation, or safety issues in transporting a nuclear bomb by rocket?”

“We’ll call the Project The Study of Lunar Research Flights so it sounds like we are actually studying those kind of issues.  The rest are details, details, details.  We have the brightest minds from all scientific fields in this room.  What could possibly go wrong?  To the Moon, I say, and let’s blow it up!”

All Committee members cheer: “To the Moon!  To the Moon!  Give that guy another pocket protector and slide rule!”

Perhaps a little out of character for scientists, but we do know that some group came up with the idea for Project A119.  Let’s check in with the hypothetical initial meeting of the Military and Political leaders.

“Okay, Boys [Side Note: Not even consideration of women in this group in 1958], the Soviets successfully launched a satellite and our two efforts failed.  America relies on us to come up with an amazing and better plan.  Any ideas?”

“Well, General, hear me out on this one.  I have an idea to knock the red socks off the Ruskies.  Well strap a nuclear bomb to a rocket, send it to the Moon, and blow out a new crater so the Man in the Moon has a dimple in his chin.  The Soviets will pee their pants in fear and every American will love us.”

“Brilliant!  Promote that guy two ranks!

“Excuse me, General, but what about environmental impacts, radiation, or safety issues in transporting a nuclear bomb by rocket?”

“Who invited the Commie sympathizer?  Those are details, details, details.  Those eggheads in the other room will love the challenge to make this happen within twelve months.  For political cover, we will call the Project The Study of Lunar Research Flights.  What could possibly go wrong?”

All Military and Political Committee members chant: “Blow up the Moon!  Blow up the Moon!”  Meeting adjourned.

These imaginary initial meetings are fantastic, and yet, the U.S. Government became determined to proceed with Project A119 with a goal to detonate a nuclear bomb on the surface of the Moon just to show up the Soviets.  Some group actually analyzed these issues in some detailed fashion and decided to proceed with a full Top Secret Project.  Our leaders at work.

Not to be outdone, years later we learned that at the same time, the Soviets embarked on their own Top Secret Project E-4.  Project E-4 included a plan to deliver and detonate an atomic bomb on the Moon’s surface.  This revelation does not make Air Force Project A119 less insane.  Instead, the existence of a parallel Soviet plan to blow up the Moon simply confirms that many passengers can fit in the Crazy Boat at the same time.

The Soviets successfully launched the Sputnik satellite in 1957 and the Cold War turned into a Space Race on steroids.  Both the U.S. and Soviets set their sights on the Moon.  Exploration of the nearest orbiting body?  Nope.  Scientific examination of the makeup of the Moon and what it might teach us?  Nah.  Study the effects of no gravity?  Not even close.  Rather, Mankind’s first interaction with a planetary object beyond the Earth would be a nuclear kiss of death.  “One small nuclear device detonated on the Moon’s surface.  One enormous mushroom cloud to scare our enemies.”  Not quite as catchy as Neil Armstrong.

Fortunately for the human race, the U.S. eventually abandoned Project A119 determining that the risks of an explosion during the launch cycle outweighed potential benefits.  Please note, the potential impacts on the Moon were not among the reasons to abandon the project.  Independently, the Soviets also scrapped Project E-4 for unstated “safety concerns.”  In reality, both the U.S. and Soviets recognized that any dust cloud or mushroom cloud associated with a lunar nuclear explosion would fail to produce the desired, dramatic, visible with the naked eye, impact so coveted.  As the explosion would be a dud from the perspective of the Earth, why bother?  The Moon was saved as it was simply too far away for target practice.

In the 1960s, the U.S. and Soviet Union entered two treaties in which the Superpowers pledged to keep the Moon out of consideration for any nuclear testing or targeting.  By that time, both countries knew that a lunar nuclear strike would have little showmanship effect.  Whatever the reasons, these treaties rendered moot the need for another Project A119.  Let’s hope that there is not a different Project A120 under consideration (or actually in play).

In estate planning meetings with clients, we inevitably reach the “what if” phase in discussing alternate trustees or agents to serve in plan documents and address contingent circumstances.  At times, clients may roll their eyes and I know they are thinking that the exercise is silly as certainly those events I describe could never come to fruition.  Even with the most far fetching hypotheticals I present, I have never invoked an example of detonating an inter-planetary nuclear device as a concern.

Nonetheless, when clients question the likelihood of crazy hypothetical events I conjure, I may now remind them that our Government spent years funding a project to blow up the Moon.  Unlikely and unexpected events abound in our lives.  We need to plan — perhaps not using our Living Trusts and Wills to address interplanetary nuclear excursions — but instead to account for the unlikely challenges which may arise in our families and business affairs.  In the meantime, enjoy the Moon while we still have it.

Resolutions, But Why Now?

Resolutions, But Why Now?

Welcome to 2023.  New Year.  New Beginnings.  New Promises.  For many, the New Year represents a time and place to wipe the slate clean, begin anew, and try to do better.  The vast majority of us seek to assist ourselves in these endeavors with New Year’s Resolutions.  We can make resolutions at any time.  Yet, our custom and practice remains to reflect on our own self, candidly acknowledge our successes and limitations, and then resolve to change or improve on behaviors with the New Year.

But why January 1?  Of course, as with so many of our traditions and customs, the origins rest with religion.  At the beginning of each year, the Romans would make promises to the god Janus, for whom the month of January is named.  The Roman god Janus is depicted with two faces always placed in opposite direction of each other.  Janus could simultaneously see the past and provide vision for the future.  As such, he was the gateway god associated with doorways, passageways and opportunities.  “Janus” literally translates to “arched passage, doorway”.  With insight to what has been and what may come, Janus symbolizes the beginning and end, as well as war and peace.  More importantly, Janus represents transitions from youth to adulthood, life to death, and light to darkness.    

Stressed in worshipping Janus for transitions would be the beginnings.  The Romans sought the blessing or approval of Janus for a new cause or circumstance.  Temples built to honor Janus are not found, but gates and entranceways abound with his image.  Opportunity awaits on the other side of the gate.  Changes lie ahead on the other side of the passageway.  Janus is the god of change and possibility.  For divine approval and support for a Roman’s resolutions for new beginnings, Janus was THE guy.

Fast forward to Medieval times, at the conclusion of the Christmas Season corresponding with the New Year, knights’ resolutions included renewal of their vows and commitment to chivalry.  At about the same time, Christian churches began using New Year’s Eve and New Year’s Day liturgical services for the Covenant Renewal Service.  Congregants would prepare for the upcoming year through prayer and making resolutions.  Watchnight Services at Christmas and New Years would incorporate religious resolutions by the congregants.

Use of New Year’s resolutions became a staple among organized religions through the centuries.  Indeed, in the early 1900’s, a postcard with the following resolution message could be sent as a reminder to your closest friends and loved ones:

Wow!  I would need to spend the vast majority of each day just attempting to remember what I resolved to do and refrain from doing with that resolution.

New Year’s Resolutions crossed over to secular society along the way.  By 1813, the term “New Year’s Resolution” first appeared in a Boston, Massachusetts newspaper.  In fact, the concept of New Year’s Resolutions was so well entrenched by this time that the Boston paper described the resolution process skeptically as follows: “There are multitudes of people, accustomed to receive injunction of the new year resolutions, who will sin all the month of December, with a serious determination of beginning the new year with new resolutions and new behaviour, and with the full belief that they shall thus expiate and wipe away all their former faults.”

At about the same time in the early 1800s, Walker’s Hibernian Magazine recognized that most failed to follow through on resolutions and published a list of resolutions some have solemnly pledged to keep.  Those satiric resolutions included Statesmen resolving to have no other object in view than the good of the country; and Physicians resolving to be very moderate in their fees.  Apparently, some things just do not change, even with a few centuries of resolutions.

Resolution Statistics

At the end of the Great Depression, approximately one quarter of Americans made some type of New Year’s Resolution.  That percentage slowly, but steadily, increased to almost 50% of Americans making such annual resolutions by the year 2000.  52% of us firmly believe that our resolutions will succeed when we make them.  However, the actual success rate is closer to 12%.  

With success so unlikely, we should ask why we keep making resolutions.  I am no psychologist, but I do think that resolutions in some measure represent hope and faith in ourselves.  In making a resolution, we have already noted a trait or condition in our own self which we want to change.  In and of itself, that process is growth.  We know we may not succeed in carrying out the resolution, but we achieve a heightened awareness regarding the actions and conduct we strive to alter.  We have the opportunity to avoid such circumstances in the future.  You may not have lost all the weight in your resolution, but perhaps you started on an improved exercise routine.

The one statistic which stood out for me is that 46% of people are more likely to succeed in achieving a goal when tied to a resolution than those with no resolution.  Groups have been studied with weight loss and quitting smoking on this issue.  For those who combined a stated goal (e.g., lose ten pounds) with a resolution to succeed, there existed an almost 50% increase in the success rate when compared with others who merely put forth a stated goal without a resolution.  A resolution is a promise to ourselves and even third parties.  There exists motivation with a resolution which otherwise is absent from the equation.  Maybe guilt in not achieving the resolution plays a part.  Whatever the reasons, resolutions undeniably assist us.

We have a New Year with 2023.  Join the 50% of Americans and make resolutions if not already undertaken.  The simple step of reducing a promise to yourself to a resolution already places you on the path for a greater chance of success.  Who knows, even your own Janus is out there working on new beginnings for you.  

In Estate Planning, some clients have difficulty discussing or entertaining the concept of their own demise.  Even the word “death” casts a chill on the process as the finality associated with death is their very own.  Perhaps Janus can assist with more than resolutions and serve as a reminder that with change (I.e., death), a new beginning can dawn for those for whom the client wants to provide.  We can look forward to possibilities and not back to our own Earthly demise.

Good luck with your New Year’s Resolutions and Happy New Year!

50 Years Collecting Dust

50 Years Collecting Dust

The 1936 Olympics in Berlin introduced basketball as a completion.  Between 1936 and 1972, the U.S. Men’s Basketball Olympic team compiled a record of 63 wins and zero losses.  The Soviet Union took home the silver or bronze medals in 1952, 1956, 1960, 1964 and 1968.  The resentment from the Soviet Union and other Eastern Bloc countries toward the U.S. team grew as fiercely as the Cold War.  50 years ago this week, in the 1972 Olympics in Munich, the Soviets displayed the lengths to which they would go to dethrone the Americans.

Of course, it is amazing that the 1972 Olympics continued after the terrorist attacks left 17 dead, including 11 members of Israel’s Olympic delegation.  These terrorist attacks started as a hostage situation in the Olympic Village where all athletes resided.  Members of the U.S Men’s basketball team described how German police in sweat suits could be seen running around the Olympic Village.  The facts that they appeared significantly older than the athletes and they carried machine guns kind of gave away the otherwise undercover sweat suit appearance.  Scheduled for four days after the attacks, the U.S. team members were not certain whether the basketball finals would, or even should, be played.

But, the Gold Medal game between the U.S. and Soviet Union took place and it remains one of the greatest controversies in the history of the Olympics.  The contest was close, and concluded with multiple “do-overs”; missed foul calls some might claim were missed intentionally; and assistance for the Soviets not from their players or referees or Soviet coaches, but rather someone in the stands who directly interfered with the game.  Years later, it was reported that the Soviet Union had, a few months before the Olympics, “bestowed gifts” on the man from the stands who so dramatically interfered with the game.

Olympic cheaters and scandals are not novel.  However, most cheaters who have been caught appeared likely to have acted on their own or, at least, without knowledge or assistance from the country they represented.  Steroid use and doping scandals appeared almost routine in the 1980s and 1990s.  In the 1904 Olympics in St. Louis, the Marathon was held in sweltering heat.  American runner, Fred Lorz, rested after the nine mile mark and then decided to hitch a ride for the next 11 miles.  He then finished in first place on foot.  Easily discovered, Lorz was stripped of his Gold Medal.  Boris Onischenko, the favorite to win the Pentathlon in 1976, suffered disqualification from the Olympics after the first event of the Pentathlon when officials discovered that Onischenko’s epee sword registered strikes without ever touching an opponent.  Boris the Cheat rigged his fencing sword to register hits with a button he controlled.

Yet, not all scandals involved individual cheaters.  In 1980, in the Moscow games, the Soviets opened large stadium doors while Polish pole vaulter, Wladyslaw Kozakiewicz, attempted his vaults so the wind tunnel effect would adversely impact his performance.  While on the podium claiming his Gold Medal, Kozakiewicz gave the crowd and the Soviet hosts the Bras d’honneur salute.  Sounds like Kozakiewicz might have been raised in Jersey and attended my grade school.

The 1972 Olympic Men’s Basketball final may top them all.  Not only was there conspiracy among many, but there was also the brazen and cavalier attitude in carrying out the screw job three times until it finally succeeded.

For those a generation removed, there was a time when the Olympics mandated amateur status of all athletes.  In basketball, that meant that the U.S. team consisted of college players and not an NBA Dream Team squad.  For the Soviets and their allies, “amateur status” equated to their finest basketball players who all just happened to be career soldiers with their exclusive military assignment to play basketball for their country.  Despite facing these finely honed professional teams who played together for years, the rag tag U. S teams in the Olympics remained undefeated for 36 years.  The 1972 U.S. team easily reached the Gold Medal game.

In the game, the Soviets held a 10 point lead with 10 minutes to play.  The Americans, lead by future NBA No. 1 pick Doug Collins, charged back with their aggressive style and cut the lead to one point with time winding down.  Three players were ejected in the final minutes for their overly zealous fouls.  Collins drove to the hoop with seconds remaining with a Soviet defender essentially throwing Collins off the court.  The referee awarded Collins two free throws for the foul with 3 seconds remaining.

The Soviets had one time out remaining at that point.  Collins sank the first free throw to tie the game at 49.  The television footage confirmed that the scoreboard showed the Soviets still with their one time out.  No horn sounded from the official scorer’s table to signal a time out.  No light appeared on the scorer’s table signifying a time out was called by the Soviet bench.  Collins was handed the ball by the referee and Collins calmly sank the second free throw.  U.S. took the lead 50-49.

Timeouts could not be called after free throws under international rules.  The Soviets had to in-bound the ball and run a play with 3 seconds remaining.  The Soviet player passed the ball in to a teammate.  The Soviet coach then left the designated coaching area and raced to mid-court yelling that he had called a timeout.  The referee stopped the game with one second left on the clock.

The referees conferred at the scorer’s table to sort out the mess when Dr. Renato William Jones left his seat in the stands and ran onto the court.  William Jones engaged the referees demanding that 3 seconds be placed back on the clock with the Soviets awarded the ball.  The referees listened and the Soviets were awarded a “do-over”.  To be clear, William Jones was not a referee in the game.  William Jones was not a referee at all.  William Jones held no official Olympic post.  William Jones attended the game as did all other fans in his capacity as a fan.

Yet, in the international basketball community, Dr. Renato William Jones was far from a nobody.  William Jones was a founding member and Secretary General of the Federation International of Basketball Amateur (FIBA).  William Jones spent decades advancing organized amateur basketball, mostly in Europe.  For all the good he did for the sport, William Jones made no secret of his animosity toward Team USA and the NBA.

Jones later admitted that he had no authority and no standing to interfere in the game, but he believed he had to right a wrong.  Amazingly, the referees completely caved in and did exactly as Jones instructed.  The game clock was re-set to 3 seconds.

During the delay, the Soviets had time to set up a play and they even substituted players.  Tom McMillan, the 6 foot 11 inch center for the U.S., defended the in-bounds pass.  McMillan forced a short in-bounds pass by the Soviets with the player forced to take a long shot with time expiring.  The shot missed with no time left and the U.S. ahead by a point.  Game over!

Not so fast.  Jones, still on the sidelines and still somehow involved, advised the refs that the game clock was not properly re-set to 3 seconds before the the do-over play.  The refs would need to do-over the do-over again.  The refs complied despite the fact that any delay in starting the game clock on the do-over only favored the Soviets in providing extra time.

On the third attempt which was the second do-over, before giving the ball to the Soviet player for the in-bounds pass, the ref moved the 6’ 11” McMillan back a few feet from the out of bounds line.  That step allowed the Soviet player the ability to throw a pass over McMillan and the length of the floor.  The Soviet in-bounder then stepped on the line while throwing a full court pass which, of course, succeeded with the Soviet center hitting a game-winning layup with time expiring.  The third time was the charm for the Soviets.

The U.S. dutifully appealed these actions and the results of the game.  The appeal was blocked when the three then Soviet allies — Poland, Hungary, and Cuba — voted against consideration of any appeal.

Concerning his involvement, Dr. Renato William Jones famously stated: “The Americans have to learn how to lose, even when they think they are right.”  William Jones, perhaps the most knowledgeable person in the arena on basketball rules, claims he was consumed in “getting this right.”  In interfering with the game and demanding multiple do-overs for the Soviets, William Jones overlooked the following.  The Soviet coach leaving the coaching box constituted a technical foul never called.  The Soviet coach stepping on the court during play constituted a technical foul never called.  The Soviet coach calling a timeout in between or after free throws constituted a technical foul never called.  The Soviets substituting players after the free throws for the do-over constituted a technical foul never called.  The referee moving McMillan back from the end line was wrong.  The Soviet player stepping on the line during the in-bounds pass constituted a violation never called.  It appears that the only item for Dr. Jones to get right would be the final score which favored anyone except the U.S.

In subsequent investigations of these relationships, and after the death of William Jones, reporters from Bloomberg confirmed that the Soviet Union “bestowed gifts” on Dr. Renato William Jones two months prior to the 1972 Olympics.  Given his open animosity toward the American team, perhaps William Jones needed no additional encouragement to assist an opponent of the U.S Men’s Basketball program.  Details of this payoff may not be well understood, but the actions have not been denied by Jones’ defenders or Russia.

The 1972 U.S. Men’s Basketball team refused to take the podium and refused the Silver Medals.  The medals remain in the offices of the International Olympic Commission collecting dust for 50 years now.  The Soviet team has been hailed as heroes in Russia.  In 2017, the movie Going Vertical was released in Russia which tells the story from the perspective of the Soviet Union.  The bravery of Soviet players standing up to the Americans is noted throughout while Dr. Jones stands as a defender of the rules who demanded only fair play.  Apparently the myriad of technical fouls and rule violations by the Soviets, as well as the bribery money paid to Dr. Jones, failed to even merit a mention in this film.  Why allow the facts to get in the way of a good story?

50 years later, can the 1972 basketball game between the U.S. and Soviet Union assist in resolving conflict?  Most fundamentally, the experience of this U.S. Olympic team reminds us that risk can never be fully evaluated.  For any litigation or dispute sought to be settled, the parties must be reminded that resolution brings certainty and finality, but proceeding in litigation involves inherent risks.  Many risks can be identified and some of those matters can even be quantified.

For instance, it may be reasonable to speculate that referees would miss fouls or violations in a basketball game.  The Soviet player stepping on the line on the in-bounds pass may fall in this category even if part of a game-winning play.  It is more difficult, but still possible, to foresee that the referees would miss illegal player substitutions by the Soviets at critical moments.  However, it is neither reasonable nor realistic to foretell a person from the stands charging the court then interfering with the officiating of the game – and doing so multiple times.  This scenario could only be dreamed up in a work of fiction, but yet it took place in plain sight with the world watching it live on television.

But such is the world of litigation.  On the eve of a trial involving serious personal injuries and substantial property losses, the judge announced that each weekend, he plays golf with three of the plaintiffs’  lawyers.  The judge sees no issue with such purely social outings, but wanted to place the issue on the record just for clarity.  When this happened to me, I thought the judge should simply have stated: “For those not already aware, the fix is in.”

In discussing the uncertainties of litigation risk, it is important to reflect on the obvious such as how legal positions may be impacted with evidentiary rulings or how themes may resonate with juries.  It remains perhaps more critical to explain that the unanticipated and even unknown Dr. Renato William Jones may come out of the stands with only 3 seconds left to take away your victory. Be careful about what you do not know and cannot control.

The Two Plinys

The Two Plinys

Dateline:  Early morning, August 24, 79 AD, Misenum, Italy.  Roman Naval Commander, Pliny the Elder, discusses the days affairs with his nephew, the Roman poet and administrator, Pliny the Younger.  Let’s listen in.

Pliny the Younger: “Uncle.  I miss the old August when it was called ‘Sextilis’”.

Pliny the Elder: “Now, Nephew.  Show some respect for Augustus Caesar who renamed Sextilis.  You just want to say a name which sounds like a dirty word.”

The Younger: “Those Roman rulers are sure full of themselves.”

The Elder: “Be careful, Nephew.  Remember that those powerful rulers made me Naval Commander and you Administrator.  Who do you think pays for all those in vogue tunics you wear each weekend while partying across the bay in Pompeii?”

The Younger: “Speaking of Pompeii, look at that large, dark cloud rising over Mount Vesuvius.  Could that be a volcanic eruption?”

The Elder: “I doubt it.  We had no foreshadowing of such events.  Mother Nature would send us a signal before the volcano erupts.”

The Younger: “What about the constant earthquakes over the last four days?”

The Elder: “Boy, those were strange.  But only if we had some warning about Mount Vesuvius.”

The two Plinys watched as the ash cloud rose 98,000 feet from Mount Vesuvius over Pompeii.  Even Naval Commander Pliny could no longer deny what they were witnessing.  Pliny the Elder ordered his ships to prepare for a rescue mission across the Bay of Naples to assist with evacuation of Pompeii by sea.

As he neared the coast, Pliny the Elder was met met with a thick shower of ash, hot cinders, lumps of pumice, and pieces of rock falling from the sky.  In response to the helmsman’s advice to turn back, Pliny the Elder declared: “Fortune favors the brave!”  The ships were lost to fire falling the sky; Pliny the Elder suddenly died from either a heart attack or stroke; and his crew escaped on land walking along the coast to safety.

We know of these events because of the eyewitness accounts and stories in letters Pliny the Younger penned to Roman historian Tacitus.  Pliny the Younger noted the initial massive explosion and ash cloud with flaming fallout on Pompeii and surrounding areas.  While lives certainly were lost then, the remaining residents of Pompeii could still seek to escape the area by sea or by foot even with one to two-inch superheated pieces of pumice raining down.

It was not until early the next morning, August 25, that pyroclastic surges spewed forth from Vesuvius.  These rapid moving, dense and exceedingly hot masses destroyed all in their paths from the volcano to the sea.  When the 570 degree F molten rock cooled, Pompeii had been leveled with a new coastline along the bay.  Anything left in Pompeii, whether people or property, was lost in the pyroclastic surges.

I had been under the mistaken impression that the volcanic eruption of Mount Vesuvius in 79 AD presented as a sudden and cataclysmic event.  I recall photographs of ash covered and preserved victims discovered millennia later in everyday life scenes as if instantaneously struck by the volcanic eruption.  Yet, those in Pompeii experienced four straight days of increasingly stronger earthquakes before the explosion on August 24.  No precautions were taken.  The toxic ash cloud reached almost 100,000 feet with flaming embers and rocks then instantly falling on Pompeii.  Still no full scale evacuation.  By the next morning, many people inexplicably remained in Pompeii.

I understand that modern technological advances were not available in 79 AD.  There were no municipal early warning systems.  Jim Cantore was not available to report from the side of the volcano.  Nonetheless, between the four days of earthquakes and ash explosion, all had notice to get out of Dodge as quickly as possible.  Some, of course, had no alternative but to stay.  Perhaps they cared for elderly or infirmed who could not be moved.  Perhaps they were the First Century version of first responders.  Perhaps their masters prevented them from fleeing.  These people were among the more than 1,000 lost in Pompeii alone.

Mount Vesuvius stands as the only active volcano on the European mainland.  Certainly, eruptions over the past few millennia taught us lessons about the consequences of placing population centers near an active volcano.  As for Pompeii and the surrounding areas, 600,000 currently live in the defined danger zone of Mount Vesuvius and an additional 3,000,000 reside in the range of those who may be significantly affected by an eruption.  Mount Vesuvius is the most densely populated volcanic region in the world.  Even Jim Cantore and the Weather Channel may not be able to save those guys.