When a Win Is Anything But

When a Win Is Anything But

The 1919 Chicago White Sox fielded one of the greatest teams ever in the history of baseball.  The lineup included one of the best hitters in Shoeless Joe Jackson and two pitchers who routinely won almost 30 games each season in Eddie Cicotte and Lefty Williams.  By all accounts, the team was dysfunctional with factions or groups who had nothing in common except the ability to play splendidly as a team (anyone remember the overly dramatic and extremely dysfunctional New York Yankees from the 1970s?).

The 1919 Chicago White Sox will never be remembered for dazzling pitching performances, home runs, or stellar defensive plays on the diamond.  Of course, we all know the team as the Chicago Black Sox – The team that threw the World Series – The team of cheaters – The team that almost took down baseball itself.

With the reputation of the Black Sox so entrenched in our psyche and the undeniable association of the Black Sox with cheating, we may have forgotten that the co-conspirators almost got away with it.  In fact, the players and those involved became entangled in an investigation wholly unrelated to fixing the 1919 World Series.  Then everything fell apart.

September 28, 1920 is viewed as the date of everything unraveling for the Black Sox players, eventually leading to the lifetime ban of eight players from baseball.  This 101st anniversary of the demise of the careers of these players provides an opportunity for the story of the discovery of the misdeeds, the eventual acquittal of the players in the legal system, and the immediately following lifetime ban from baseball, together with some sketchy involvement by mob figures.  The Black Sox deservedly should be known for their cheating ways.  However, the downfall of the Black Sox provides lessons for us all on how quickly fortunes can change and how victories may prove elusive.

The story of the origins of the plot to fix the World Series needs to be explored in other articles.  Just note that baseball owners ruthlessly took advantage of players during this period.  Players’ wages were quite low.  Professional gamblers remained way too chummy with the grossly underpaid players.  The perfect storm scenario to entice players to fix games had been brewing for years.

This story, however, begins with the first pitch of the 1919 World Series.  White Sox star pitcher, Eddie Cicotte, hit the first batter with the first pitch.  That play was the signal that the “fix was on”.  In embarrassing fashion, the heavily favored White Sox lost the first two games of the Series.  After failing to receive payoffs after those games, the White Sox players decided among themselves to call off the fix.  Don’t double cross the double crossers!  The Series became competitive.

While historic accounts differ at this point, something clearly happened before Game 8 of the World Series.  At that time, the World Series was a best of 9 game affair.  The Reds lead the Series 4 games to 3.  Mob Boss Arnold Rothstein, the person most generally credited with providing the cash for the bribes of White Sox players, happened to be in Chicago and famously told associates that there was no possibility of the Series reaching a deciding Game 9.  White Sox pitcher Lefty Williams, known for his tremendous control of pitches, took the mound for the White Sox.  Lefty walked the first three batters he faced without throwing one strike.  Lefty gave up three runs on his way to becoming the pitcher who lost three games in the Series.  The White Sox outfielders dropped fly balls and infielders threw balls five feet over the heads of teammates covering a base.  Game 8 remains the boldest example of a thrown professional sports game to this day.

The poor performance of the White Sox players in the 1919 World Series remained a hot topic of discussion and debate in the sports world into 1920.  Amazingly, no consequences followed.  The 1920 season opened without incident or much  further discussion of the World Series.  The White Sox remained in a close pennant race with the Cleveland Indians as the season headed toward conclusion.

On August 31, 1920, evidence came to light that a baseball game between the Chicago Cubs and Philadelphia Phillies may have been fixed.  A grand jury was convened in Chicago to investigate.  A player who testified about fixing the Cubs game noted that fixing goes on all over baseball.  He had seen a telegram from 1919 suggesting that the White Sox were going to throw the World Series that year.  

The sitting grand jury “invited” White Sox pitcher Eddie Cicotte to appear on September 28, 1920 to answer questions about the 1919 World Series.  Cicotte immediately broke down in tears saying that he had to take care of his wife and kids.  He testified about the scheme to fix the series, identified those involved, and detailed the payments to each player.  Oops.  Word immediately spread that Cicotte spilled the beans.  Shoeless Joe Jackson testified before the grand jury later that same day and admitted that he accepted $5,000 from his teammates although they promised him $20,000.  Other involved players then lined up admitting their involvement before the grand jury.

That evening, White Sox owner, Charles Comiskey, made public a telegram he sent to the eight implicated White Sox players: YOU AND EACH OF YOU ARE HEREBY NOTIFIED OF YOUR INDEFINITE SUSPENSION AS A MEMBER OF THE CHICAGO AMERICAN LEAGUE BASEBALL TEAM.  Notably, Comiskey made no mention that he was tipped off of the alleged fix both before and during the 1919 World Series.  Comiskey took no action in order to protect his own financial interests and value of the White Sox as a team.

The grand jury indicted all eight White Sox players.  The players faced charges of conspiring to defraud the public; conspiring to commit a confidence game; conspiring to injure the business of the American League, and conspiring to injure the business of Charles Comiskey.

With confessions in hand, focus turned to those who financed the fix.  All roads lead to mobster Arnold Rothstein.  As with all well trained mob bosses, Rothstein had no direct involvement, but instead worked through two professional gamblers, Abe Attell and Sport Sullivan.  When news of the White Sox players singing to the grand jury broke, Rothstein summoned Attell and Sullivan.  Rothstein told the two that each would be taking a fully paid vacation.  Attell disappeared to somewhere in Canada.  Sullivan disappeared to somewhere in Mexico.  Witnesses gone.

With Attell and Sullivan now unavailable, Rothstein and his legal team adopted a bold strategy to have Rothstein voluntarily appear before the grand jury to answer questions.  Rothstein testified that he heard about the fix; that Attell and other cheap gamblers approached Rothstein to be in on the fix; and that Rothstein turned them down flat.  Rothstein declared that his own reputation had been compromised by Attell, Sullivan and others who tried to implicate Rothstein just to take the pressure off their own circumstances.  Attell and Sullivan were indicted in abstentia.  No action was ever taken against Rothstein.

In addition, something funny happened on the way to trial.  Signed confessions from the players and other critical documents walked out of the State Attorney’s Office.  Speculation focused on the close association between Attell’s lawyer and an assistant in the prosecutor’s office, but no investigation followed and no charges were ever brought on the matter.

Thereafter, the best and most expensive defense lawyers appeared in the case to represent the eight supposedly impoverished players.  Attorneys who regularly represented Arnold Rothstein now appeared as part of the defense team.  On the first day of trial, these defense lawyers objected to introduction of evidence of the supposed confessions exclaiming: “You won’t get to first base with those confessions!”  The judge granted the objection noting that any mention of the confessions would be out of bounds.

Despite the absence of critical evidence, the prosecution presented a compelling case that detailed the conspiracies and the payoffs.  The prosecution presented meeting after meeting among the co-conspirators both before and during the World Series, meetings of players with gamblers during the World Series, and stories of money being left under pillows and sewn into jacket linings.

The White Sox players presented themselves as simple ball players who did not know what other games were being played.  If given documents, the players professed not to understand what they meant.  If anything shady was going on, the players were but simple pawns.

The trial judge delivered a pinch hit home run for the defense in instructing the jury.  The judge charged the jury that it was not enough for the prosecution to prove that the ballplayers merely threw baseball games.  The jury must find that the defendants conspired to defraud the public and others.  With this instruction of a need to find intent to defraud the public at large, it took less than three hours for the jury to return not guilty verdicts for each defendant.

It was not lost on the public or media that the prosecution convincingly proved that the Black Sox threw the World Series.  It was also not lost on the first baseball Commissioner Kenesaw Mountain Landis.  The very next day after the not guilty verdicts came down, Commissioner Landis banned the eight Black Sox players from baseball for life.  So much for the players celebration.

“Not guilty” may not translate to “innocent” in the public’s eye.  OJ Simpson was found Not Guilty.  Bill Cosby’s convictions were recently thrown out on appeal and he is deemed Not Guilty.  Reputation and image have been dealt a fatal blow not by a ruling in a court of law, but by the facts and undeniable actions which came to light in those courts.  The Chicago Black Sox fixed the World Series and those facts came through loud and clear in their trial.  Rightly or wrongly, these parties will be identified as a murderer, a rapist, and a group of cheaters.

In mediations, at times, I must candidly and forthrightly explain to a party that even if they win at trial, they may still come out as the loser.  Take for example the company defending itself on sexual harassment claims.  Perhaps the offending employee has been dismissed.  Perhaps the company engaged in retraining of its workforce after the underlying actions were discovered.  Perhaps the company sought to provide counseling to the impacted employee and took steps to ensure that no retaliation would be taken against the injured employee.  The company took every step it could think of to address the wrong and implement preventative measures to guard against future transgressions.  Nice talking points, but the fact remains that the company allowed the conduct to take place and now they appear to be defending or hiding behind the actions of the former bad employee.  A victory at trial might straddle the company with an image that improper conduct will be tolerated and the company will defend the bad actors.  That company needs to seriously consider what will be plainly on display in a public trial.  The rulings may have little to do with the image ultimately projected.

Debate will continue as to whether Shoeless Joe Jackson was genuinely involved in fixing the 1919 World Series (he made no errors, batted almost .400 and held the record for most hits in a World Series which stood for 40 years).  Debate will also continue on Charles Comiskey’s knowledge or involvement.  Regardless of the outcome of those debates, the Black Sox are confirmed cheaters 101 years later not through rumor and innuendo, but by facts presented in a court of law.  The victory in the court of law must ring fairly hollow for the Black Sox players.  At least in civil litigation, the option of resolution through mediation can avoid becoming the loser after winning at trial.

15 Minutes

15 Minutes

You are given 15 minutes notice to leave your house.  A natural disaster will strike and there may be nothing left.  With no time to ponder or debate, what do you take with you?

Courtesy of Hurricane Ida, two of our sons recently confronted that precise issue.  Both planned to remain in their places in New Orleans to ride out the storm.  Both prepared in securing supplies in advance of the hurricane.  Water – check.  Food – check.  Flashlights and extra batteries – check.  Cars full of gas.  Identify those neighbors also sheltering in place and agree to check on each other.  Cars parked in areas one foot higher than the streets (that step means the world in New Orleans).  Check.  Check.  Check.

Ida would blow through the Big Easy on Sunday, August 29 — the anniversary date of Hurricane Katrina.  Each Ida storm update on Friday and Saturday spoke of rapid intensification, higher wind speeds, and higher category ratings.  Would the storm veer to the west and spare New Orleans?  Would Mother Nature provide a direct Katrina anniversary hit on the Crescent City?

The time to evacuate would be Saturday at the latest.  With each new Weather Channel report, Mom became more anxious for the boys, but also of greater resolve that they should shelter in place.

Our boys live about eight short blocks apart.  Each resides in one half of a classic New Orleans shotgun style duplex.  Each house is slightly raised from street level.  The neighborhood in which they live may experience some street flooding at worst.  Long term residents cannot recall any flooding of the houses, ever.  The area did not suffer any flooding during Katrina.  The kids should be OK even if Jim Cantore and other Weather Channel stars carried on about impending doom.

The National Weather Service shattered the fragile and nervous confidence in one of our sons with the 7 p.m. Hurricane Ida update on Saturday evening.  Ida “wobbled” slightly to the east.  The new storm track placed Ida just to the west of New Orleans where it would strike as a Category 4.  One more wobble to the east and the City would be in the crosshairs of the storm.  This son instantly became the Big Queasy in the Big Easy.

Another conference call with Mom, Dad and the two boys immediately followed these developments.  The newly terrified son rattled off anticipated wind speeds, descriptions of damages a Category 4 hurricane can produce, the potential impacts of east-northeast winds coming across Lake Ponchartrain, and the untested nature of emergency systems put in place post-Katrina.  This new encyclopedic knowledge was wholly absent from every previous call.

This child concluded with: “So, I think we should leave.  Now.”  He told his brother he would pick him up in 15 minutes.  Be ready.

With each of our sons now on the 15 minute until evacuation clock, immediate and unplanned decisions would need to be made about what to grab while going out the door.  We will return to the boys later to find out what happened and the items, if any, they selected at crunch time.

When Katrina hit, I was working closely with many New Orleans lawyers on a multi-year, large exposure litigation.  Given the duration of that case and its intensity, I got to know so many of the lawyers beyond the professional colleague stage.  We got to know spouses and family pets.  We heard about current events for children and grandchildren.  We were friends.

Quite a number of these friends became displaced with Katrina.  We discussed what folks took with them as they vacated the City for that hurricane.  For one attorney and her husband, lifelong New Orleans residents, they gathered their cat, grabbed their wedding photograph album, and packed their golf clubs as they were avid golfers.  They looked at each other, looked at the half empty car, looked back at their house and one of them declared: “The rest is just stuff.  Let’s go.”  With their car only half full, they drove away.

Another lawyer and his spouse had spent the ten years prior to Katrina restoring their historic house in New Orleans.  This attorney recalled sitting in his parlor at his beloved piano, crying, and telling the piano that she would be missed.  He took with him merely a change of clothes and nothing more.

Back to our boys and Hurricane Ida.  After two or three more conference calls and determining that gas stations within a three hour radius of New Orleans had already run out of gas, our son calmed down sufficiently to understand that his best option would be to remain in place.  Both kids lost power and we lost communication by Sunday afternoon.  Mom and Dad were glued to the Weather Channel for every detail.  When Jim Cantore literally got blown over by the wind in downtown New Orleans, we felt as if we had been knocked over.  For an agonizing additional 24 hours, no communication from the boys.

On Monday evening, we finally received text messages advising that each child was safe, that their places suffered modest damages, and that power may be lost for weeks or longer.  On Tuesday, with temperatures expected to surge over 100 degrees, the airconditionless boys planned their escape from New Orleans.  Suspecting that Mom and Dad would tell them to stay put, they ignored our calls and messages until they promptly got on the road out of town.  After a two day excursion worthy of Thelma and Louise, they arrived back home in Memphis.

With their arrival, our laundry room immediately filled up with an amazing amount of dirty clothes.  Our one son spent his 15 minutes before leaving collecting all his dirty clothes and bedding.  I asked why he brought laundry, especially not knowing where they were going to end up on this journey.  He responded that wherever they landed, there most likely would be laundry facilities and he needed clean clothes.  Place one child in the practical category.

I turned to other son and inquired if he also had laundry.  He scoffed and replied: “No way.”  I then asked what, if anything, he took when evacuating in a rush.  He produced a bottle of Hendrix Gin.  He explained that the gin was a gift and it cost well beyond what he could ever afford for a bottle of gin.  In fact, he does not believe he could afford Hendrix Gin for many years to come.  So, if Hurricane Ida were to destroy everything, he could take solace with brilliant gin drink.  Place this child in the live for the moment category.

In your 15 minutes, would you reach for items with emotional attachment such as a wedding photographs?  Would you grab expensive or valuable things such as jewelry or a bottle of gin?  Would your practical side prevail and you take work to be done such as laundry or even that half-finished business presentation?  Or, would you simply leave with but a change of clothes?

We should all have our crisis kit prepared and include documents such as insurance policies, copies of deeds, powers of attorney and medical records.  I can easily counsel clients to have such information prepared and copied on flash drives.  Yet, I admit that I am not so prepared myself.  Those type of records require forethought and planning.  You cannot gather them if left to a 15 minute window of opportunity.  This article addresses the immediate impulse items you may take in your own crunch time.

I suggest that we probably cannot answer the question “What will you take?” unless and until we are confronted with our own 15 minutes.  The four people in this article presented four quite distinct results.  The extreme response of “just walk away” came from a lawyer who could only be described as an intense personality.  I would never have guessed that he would be capable to even think about just walking away.  I also think he does not believe he would have acted in that fashion pre-Katrina.  Our son who saved only a bottle of booze is our most emotional child by far.  He has saved pieces of his past as reminders in life.  I would have guessed he would have demanded a U-Haul to save all these things he finds so important in life.  Instead, he surprised even himself with his actions.

Part of me would like to think that I would grab a few items with high emotional value, most especially if they cannot be replaced.  However, part of me feels that it is just stuff and just leave already.  Of course, under any scenario, the dogs would already be in the car excited for their new adventure.

In some ways, this 15 minute window is a microcosm of a trial.  You can prepare for what you know will happen.  You can prepare for what you think may happen.  You can have all your motions and bench briefs set for anticipated evidentiary issues.  You can have witnesses prepped and ready.  You can have your case fully themed to be presented as an easily understood and cohesive story.

Then your entire case “wobbles” a little to the east as soon as it begins.  You determine that you must avoid any juror with any medical background.  The first five potential jurors called are a nurse, a paramedic, a physical therapist, a hospital administrator, and a veterinarian.  You are officially on your own 15 minute clock and must immediately decide who goes and who stays on the jury.  

After jury selection, the judge announces that each weekend he plays golf with the attorney for the opposing party.  The judge states that there is no conflict as golfing is just a social outing.  The judge simply wants to place the information on the record for full transparency.  Side note: this situation is not fiction and happened to me.  You again confront a new 15 minute period and must decide how to react to this latest bombshell.

Your perfectly planned trial becomes a series of “15 minutes” to determine what you will grab as things fall apart.  In each instance, you simply do not know and cannot predict how you will react.  As a mediator, you often advise parties that proceeding to trial is a risky proposition due to uncertainties and issues beyond your control regardless how much planning and preparation has been done.  Decisions will need to be made on the spot and without the benefit of careful consideration.  These “15 minute” decisions will impact the entire trial and may prove to be the decisions leading to success or abject failure.  You cannot predict how you will react in that 15 minutes.

A settlement, however, eliminates the 15 minutes.  A settled outcome provides certainty and makes sure that the 15 minute window does not even open.  An agreed upon resolution through compromise prevents your entire case from wobbling.  Control the hurricane.  Do not allow the hurricane to control you!

As for me, with our new full house, I will fold laundry as I enjoy a gin and tonic.

A Skateboard, A Shopping Cart and The Olympics

A Skateboard, A Shopping Cart and The Olympics

The 2021 Tokyo Olympics are well into the second week and rapidly approaching the Closing Ceremonies.  Many of the athletes completed their events a week or more ago and they now participate as spectators relieved of the Olympic pressures.  Even marquis events such as Swimming are already concluded.

And yet, I, an otherwise avid Olympic fan, have not watched one moment of the Olympics.  I did not see any of the Opening Ceremonies.  I have not witnessed one minute of any sporting event.  I did hear about Simone Biles withdrawal from Gymnastics as a news event, but have not seen one flip, tumble, roll or other gravity-defying leap by any gymnast.  I also heard about the Belarus sprinter, Krystsina Tsimanouskaya, seeking asylum as she feared for her safety — again as a news story and not part of Olympic watching.

I genuinely enjoy the Olympics be they Summer or Winter.  I marvel at the lifelong dedication of these young athletes.  In case I dare forget, the color commentary stories describe the extreme sacrifices made by each athlete, their families, their coaches, and their friends to overcome the extraordinary challenges in order to earn a right to be on an Olympic team.  For the vast majority of these amateur athletes, the Olympics represents the zenith of their sports careers.  If they perform well or even medal, we get to share in a small way in their excitement and achievement.

The Olympics also offers each of us an opportunity to become armchair experts in the nuances of sports once every four years.  “Oh boy.  He didn’t point his toes entering the water on that dive.  It will cost him.”  “Look at that little bounce step.  She just didn’t stick the landing.”  “He clearly remained ‘heal to toe, heal to toe’.  No way was there a Walking foul.”

And, I admit that I get pulled into the drama, artificial or otherwise.  Is there truly great animosity between swimmers from the United States and Australia or are they merely top international competitors?  For the Olympics, it does not matter if it is genuine or manufactured storylines — it is real during the Swimming races and you need to choose a side for your rooting.  Father Time finally caught up with the “ancient” 27 year old Water Polo star player.  Will she finally secure Olympic Gold which eluded her in the two prior Olympics?  These stories get us to tune in and pay attention each day.

The Olympic competition brings us emotional highs and lows.  They play out sometimes like a Shakespearean drama.  They showcase some of the best of humanity and sportsmanship.  They provide teaching moments for us as well.

So, why have I not watched one race, one event, or one competition?  Could it be the time difference between here and Tokyo?  Certainly not as the results can usually be avoided in order to watch in prime time.  Are the athletes unimpressive this year?  That’s ridiculous as they spent their lives just to reach this level of competition.  What about the poor treatment of amateur athletes by the International Olympic Committee?  The poor image of the IOC — well-deserved — does not diminish the accomplishments or back stories of the athletes at the games.

Perhaps the pandemic casts a pall over the Olympics.  Will the games be played?  Should the games be played?  What precautions would be in place to protect the athletes and attendees all there for our amusement?  Can family members and friends even attend the events to cheer on the life accomplishments of the athletes?  In this COVID-19 world, the Olympics just feel different and make me think whether larger issues should be addressed beyond sports.  Perhaps I have guilt in enjoying the Olympics at such a monumental time in our history.

Regardless, I still like the Olympics.  I still want to experience the emotional crests and valleys.  I still desire to be the quadrennial expert on every sport.  Nonetheless, I have just taken a pass on the Tokyo Olympics.  

Until . . .

Two evenings ago, I received an email entitled “Future Olympic Stars”.  The message, addressed to me in my capacity as a Homeowner Association Board member, began with a description of teenagers racing a skateboard, shopping cart and luggage cart in the parking lot.  I thought I would hear about these hooligans wreaking havoc and endangering the welfare of all nearby persons.  Instead, much to my pleasant surprise, the message read as follows:

“As people were unloading today to move, 3 young teenagers were using our drive with their skateboard, the shopping cart and the baggage cart.  They were racing down the hill to get the next load for their parents.  The skateboard was the fastest and then the shopping cart and baggage cart.  These guys were picking up some good speed.  Both feet were off the ground.  Once they got to their Suburban, I asked if they had been watching the Olympics and they had.  Of course their favorite event was skateboarding.  I wish I could be that age again.  So funny.”

That’s it!  Here is the essence of the Olympics.  How could I miss it right in front of me:  Inspiration and Fun!

The teenagers not only related to the Skateboarding athletes, they also imitated them.  Only one skateboard available?  No problem.  Improvise with a shopping cart and luggage cart.  Parents want the car unloaded.  OK, but the driveway just became an Olympic racetrack.

With the parking area transformed into a modern version of the Wacky Racers, my fellow Board member who sent the message did not transform into a character from Grumpy Old Men.  Instead, he shared in the unbridled joy rooted in the Olympic Games.  Indeed, he showed the true Olympic Spirit in wishing to be young again (and wishing to hop on a shopping cart himself).  The teens reminded us to have fun and we should heed their message.

For me, I shall follow the example of the teenagers and dive into what remains of the Olympic competition, if only for a few days.  I will look to be inspired by extreme performances and amazing backstories.  And, I will be reminded of the inspiration demonstrated by our teenage friends speeding away on impromptu race vehicles.

Perhaps, just perhaps, that inspiration will extend to our next Homeowners Association Board meeting and we can race in the parking lot.  However, based on the report, I will try my very best to avoid the baggage cart.  Go be inspired by the Olympics! 

Deals with the Devil

Deals with the Devil

Dateline: June 1692, Special Court of Oyer and Terminar, Salem, Massachusetts.

On this June day, there were no thoughts of enjoying the upcoming warm summer months.  Rather, Bridget Bishop stood before the Special Court of Oyer and Terminar, a tribunal established by the new Governor of Massachusetts in order to address the dozens of accused witches.  Earlier that same day, a grand jury endorsed an indictment against Bridget Bishop for not living a moral Puritan lifestyle; wearing black clothing; and practicing witchcraft.

Bishop was the first to be tried before the special court with the new Lieutenant Governor, Thomas Newton, as its Chief Magistrate.  The court featured a prosecutor on behalf of the Crown, although Bishop was not allowed representation in her defense.  Of course, only being allotted minutes between the indictment and trial beginning probably would not allow much of an opportunity for a robust defense by even the best attorney.

Apparently, the case against Bridget Bishop appears open and shut as the court convicted her of all charges that very same day.  Within seven days, the Crown executed Bridget Bishop by hanging at Gallows Hill in Salem.  Between June 1692 through September 1692, nineteen were put to death at Gallows Hill each having been deemed a witch.

Immediately following Bridget Bishop’s execution, the special court adjourned for twenty days to seek advice from the most influential Puritan ministers in New England for comment “upon the state of things as they then stood.”  Good to see that the Court of Oyer and Terminar sought very specific guidance and avoided open ended inquiries which would allow church leaders to opine on whatever they wish.  Oh.  Wait.  The leading Puritan minister of the day, Cotton Mather, obliged the court — more on Cotton Mather later.

How did Salem, Massachusetts become the epicenter of witch trials?  Did covens of witches reside in the greater Salem area?  Perhaps an early, undiscovered version of Hogwarts was located near Salem with the witches merely faculty and staff trying to make a living.  Perhaps witches have been and remain among us while the Puritan ministers in Salem possessed a keener sense to uncover nefarious witch activity.

Perhaps, just perhaps, a community such as Salem in the late 1600s was poised to want to believe in witches and their actions.  At this time in colonial New England, and indeed in Europe itself, widespread belief in the supernatural was the norm.  Most believed that the devil engaged in the practice of granting people powers to harm others in return for their loyalty.  Those who made such deals with the devil became witches.

Against this backdrop, the New England Puritans essentially trusted no outsiders.  They had been forced to flee England and settled where they feared attacks from Native American tribes.  Salem Village, where the Witch Trials took place, resented the adjoining, more affluent, Salem Town.  Tensions ran high in the community with clear suspicion cast on anyone who did not fit in.  A review of some of the charges against Witch No. 1, Bridget Bishop, confirms this attitude:  Bishop wore black clothing which was against Puritanical norms, and, therefore, she must be a witch.  Johnny Cash would not have done well in Salem.

Given these cultural and religious dynamics, any outsider or non-conformer could easily become a target.  In 1692, these entrenched suspicions translated to allegations of witchcraft.  In January 1692, two young girls had convulsions.  A local doctor diagnosed them as “bewitched.”  Side note: I suppose bewitchment was taught in medical school at that time.  In February, a few additional girls demonstrated similar behavior.  These girls accused three women of bewitching them:  Tituba – a local slave; Sarah Good – a homeless beggar; and Sarah Osborn – an elderly widow.  All accused were “outsiders” in the Salem community.

All three accused were publicly questioned before local magistrates.  Good and Osborn denied the allegations, but Tituba confessed.  Tituba claimed there were other witches and she would name names if her life would be spared.  The hysteria begins.

Within months, about 150 were named as witches.  The accused agree to identify other witches and confess to being a witch in exchange for their lives.  This vicious accusation cycle continues apparently until the Salem community started to run low on outsiders to accuse.  When accused witches named Martha Corey and Rebecca Nurse as fellow witches, both members in good standing in the Puritan church, it became personal for the Puritans.  Clearly, these women should be above reproach.  Besides, if good standing members of the church could be accused, so could others.  Now jeopardy became real for all.  Amazingly, the accusations thereafter virtually ceased as quickly as they started.

The precipitous rise and fall in interest to discover witches is of little solace to those accused in 1692.  If the new Court of Oyer and Terminar functioned as a true court of law, then there must have been actual evidence to justify convictions.  It turns out that the legal processes and rules of evidence in 1692 were slightly different than today’s procedures.

Typically, the accused would stand charged with afflicting witchcraft and making an unlawful covenant with the devil.  The evidence could consist of testimony from the victims such as the young girls who had fits and convulsions.  Notably, many of these young girls were members of families who were in land rights disputes with the families of the accused witch.

Then, of course, was the Touch Test.  If the accused witch touched the victim having a fit and the fit stopped, then the accused clearly was the person who afflicted the victim.  As explained by Puritan minister John Hale: “the Witch by cast of her eye sends forth a Malefick Venome into the Bewitched to cast him into a fit, and therefore the touch of the hand doth by sympathy cause that venome to return into the Body of the Witch again.”  Now there is a perfectly objective test and an entirely reasonable explanation of how it operates.  Convict them all!

In addition, accused witches would be examined for moles and blemishes anywhere on their bodies.  If the mole or blemish was insensitive to the touch, it would be deemed a “witch’s teat”.  Discovery of a witch’s teat would be admitted as de facto evidence of witchcraft.

The most compelling evidence remained spectral evidence.  The afflicted person would testify to seeing an apparition or shape of the person supposedly afflicting them.  The Puritans taught that people needed to give permission to the devil to allow their shapes to be used to afflict others.  The Court of Oyer and Terminar ruled that if the afflicted victim saw an apparition of the accused or in the shape of the accused, such constituted evidence that the accused witch had been complicit with the devil.

Re-enter Puritan minister Cotton Mather.  During the twenty day court recess after the conviction of Bridget Bishop, Mather penned a multi-point open letter addressing the use of spectral evidence at witch trials.  For context, Cotton Mather previously published pamphlets about witches and reliance on spectral evidence to establish deals with the devil.  Yet, surprisingly, many points in Mather’s open letter cautioned about the reliability of spectral evidence, the need for corroborating evidence, and the inherent unfairness to the accused in reliance on presumptions.

Unfortunately, there was more.  Cotton Mather’s open letter began with encouragement to the court and prosecutor that they were doing God’s work to protect “our poor neighbors, that are now suffering by molestations from the invisible world.”  The honorable rulers of the court have been charged by God to detect abominable witchcrafts.  In closing, the laws of God and the wholesome statutes of the English nation mandated the speedy and vigorous prosecution of all those who have rendered themselves obnoxious.

These introductory and closing sections served as the clear signal to the court.  Trials proceeded with those in charge now performing a service not merely for the community, but as God mandated.  Years later, after use of spectral evidence became widely criticized, Cotton Mather republished this letter, but left out the introduction and closing points leaving only his very own “criticisms” of spectral evidence.  What an upstanding man of the cloth!

Attending the Salem Witch Trials and executions, Cotton Mather proved himself shrewd on many fronts.  One convicted witch, George Burroughs, made a speech prior to his execution at Gallows Hill.  Burroughs had served as minister to the Salem Puritan congregation ten years earlier.  Burroughs proclaimed his innocence while questioning what will become of those who knowingly falsely accused others or participated in the mockeries of a real trial.  Burroughs closed by reciting the Lord’s Prayer.  Those gathered about were awestruck as witches supposedly could not be able to recite that prayer.  Rumblings emerged questioning Burroughs’ guilt.  Burroughs was nonetheless hanged.

Sensing the unease among the crowd, Cotton Mather declared that the devil himself rested on George Burroughs’ shoulder and dictated the Lord’s Prayer for Burroughs to repeat.  The fine minister warned those gathered that the devil could transform himself into an Angel of Light to trick people to do his bidding.  According to Cotton Mather, the crowd had just witnessed the devil at work through George Burroughs.  Apparently, there was no “bottom” for Cotton Mather.

The Salem Witch Trials continued from June 1692 through September 1692.  During this time, approximately 150 were imprisoned; 19 were tried, pronounced guilty, and hanged; and one refused to plead at his arraignment and then tutored to death by peine forte et dure.  On October 12, 1692, the Governor ordered cessation of all trials in the Special Court of Oyer and Terminar.  The Governor disbanded this special court on October 29, 1692.

I have given thought to whether mediation would assist for those embroiled in the Salem Witch Trials.  I have ideas regarding how the parties might want to structure any resolution and how to monitor any agreement.  One conceptual challenge is more fundamental.  For a successful mediation, all stakeholders need to be represented and ultimately buy into the process.

The person accused of being a witch would readily agree to participate if for no other reason than to avoid the fate at Gallows Hill.  The supposed victim most probably would agree in order to get their life returned to normal or at least stop having fits.  The Puritan church leaders would be necessary to ensure acceptance of any result in the church community.  Local civic leaders, probably also Puritan church members, may need a say in the process and probably want to best ensure stability in their community.  The Governor’s office probably needs to be included and would participate as the Governor recently convened the Oyer and Terminar Court and it appears to be of questionable success.  But there is one more.

The devil appears to be a necessary stakeholder.  The devil could lose the deals with the accused witches and presumably would want recompense.  But how do you get the devil to mediation and why would the devil participate?  The devil’s history may suggest a willingness of engagement.  We have all heard about cutting “deals with the devil”.  In fact, the accused witches supposedly have already cut such deals with the devil.  The devil is a negotiator, always looking for a new or better deal.  Here is an opportunity to expand the devil’s network.  Here is an opportunity for the devil to change the negative image of dealing with the devil.  I think the devil would welcome the opportunity to participate.  Admittedly, there may still be trust issues in third parties dealing with the devil and the mediation will need a separate breakout room dedicated to the devil.  But as a stakeholder, I suggest securing buy in from the devil can be achieved.

As for the substance of achieving a successful resolution through mediation of the Salem Witch Trials, I fear the devil may storm out of negotiations claiming that Cotton Mather lies too much.

True Believers and A Volcano

True Believers and A Volcano

Ahh.  The Spring of 1980.  We had the Good, the Bad, and the Very Questionable.  The Miracle on Ice had just taken place where the Men’s US Olympic Hockey Team defeated the mighty Soviets.  Rubik’s Cube made its debut and monopolized our free time to align colored squares.  Post It Notes became available to the public after years of internal use at 3M.  Inflation was 13.85%.  The Blues Brothers movie hit the theaters.  Amazingly, the official newspaper of the Vatican, L’Osservature Romano, labelled The Blues Brothers a “Catholic classic” and “recommended viewing for Catholics everywhere.”  Huh?  

Yet, even with all this excitement, America could not get enough of a cantankerous, foul-mouthed, 83 year old, instant folk-hero who reportedly hated Republicans, hippies, young children, and the elderly.  This media darling included bootlegging, prospecting and inn keeping among his career moves.  

Being the kind-hearted soul he was, he divorced his first wife in the early 1930s.  His second marriage in 1935 was not long lived as he would throw his bride into a lake in order to win arguments, knowing full well that she could not swim.  Our hero then dated a local girl only to marry her sister, Edna.  That marriage lasted until Edna’s death in 1978.  Looks like the third time was the charm (and, apparently, Edna could swim).

As part of the media frenzy surrounding him and his actions, during the Spring of 1980, he appeared on a front page article of the New York Times.  Time, Life, Newsweek, Field & Stream, and Reader’s Digest composed profiles of him.  For the Millennial crowd, being featured in all these newspapers and major magazines at the same time in 1980 is akin to being the most popular thing on the internet.

Of course, these words describe Harry Truman.  No.  Not the “Buck Stops Here” guy who dabbled in politics.  Instead, we speak of Harry R. Truman, the caretaker of Mount St. Helens Lodge at Spirit Lake at the foot of Mount St. Helens.  You may recall Harry as the gruff, defiant inn-keeper who refused to leave the “Red Zone” around Mount St. Helens despite evacuation orders and stern warnings from Mother Nature herself.

Mount St. Helens rumbled back to life in March 1980 signaled through a series of earthquakes.  The volcano had been dormant since the 1850s.  On March 27, 1980, steam began venting from Mount St. Helens and the north side of the volcano began to bulge from the pressure.  Continued earthquakes, venting steam, and a growing lava dome fascinated us all.  Between March and May, national nightly news reports included updates about the volcanic activities.

However, constant geological reports began to wear thin after a few weeks in the news cycle.  Even with dire warnings that a volcanic explosion could be imminent with the threat increasing daily, videos showing the now familiar scene of venting steam lost their edge.  The media needed a new or exciting angle for this clearly newsworthy event unfolding before us.

The press discovered Harry Truman.  With his glass of whiskey and Coke in hand, Harry refused to leave his home at Spirit Lake at the base of Mount St. Helens.  Harry became the “must interview” for reporters.  Very little journalistic digging would be necessary to determine that Harry was a “character”.  Locals provided background stories about Harry posing as a U.S. Forest Service game warden in order to fish on Native American lands; or Harry getting forest rangers drunk to avoid new charges on various incidents; or Harry poaching on or “borrowing” gravel from federal lands.

Better still, Harry Truman became an instant quote machine.  “If the mountain goes, I’m going with it.”  “This area is heavily timbered, Spirit Lake is in between me and the mountain, and the mountain is a mile away, the mountain ain’t gonna hurt me.”  “You couldn’t pull me out with a mule team.  That mountain’s part of Truman and Truman’s part of the mountain.”

When confronted with the scientific evidence suggesting an imminent volcanic explosion, Harry scoffed and replied: “the mountain has shot its wad and it hasn’t hurt my place a bit, but those goddam geologists with their hair down to their butts wouldn’t pay no attention to Ol’ Truman.”

Mount St. Helen was back in the news with an uptick in ratings with this new human interest, folk-hero angle.  Harry Truman became part of the story and as much of the story himself.  Grade school children sent him banners and notes of support.  Harry received fan letters from across the country.  Women sent him marriage proposals.  Local authorities confronted new problems as greater numbers of reporters flocked to Harry’s Lodge seeking interviews in the heart of the danger zone for volcanic activity.  

Did this crotchety eighty year old see his golden opportunity to become a media sensation with new seismic activity at Mount St. Helens?  Highly unlikely given Harry’s history.  After World War I, Harry prospected for gold.  When Prohibition hit, Harry smuggled booze along the West Coast.  Prospecting and bootlegging are not typically identified as very social endeavors where people crave attention.

After running an automotive service and gasoline station for a few years, Harry grew tired of civilization.  Harry secured 50 acres on Spirit Lake at the foot of Mount St. Helens where he opened Mount St. Helens Lodge.  He and Edna operated the Lodge for 52 years.  After Edna’s death in 1978, Harry closed the Lodge and survived by renting out a few boats and cabins during the summer months.  Harry appeared content being isolated from almost all.

In the Spring of 1980, the press did not find a local resident seeking publicity or even one willing to play along for some instant celebrity.  Rather, in Harry Truman, they discovered the real deal.  Harry cavalierly tossed evacuation orders in Spirit Lake as if they were his second wife.  Harry disregarded warnings from long-haired scientists who could not possibly know the mountain the way he did after half a century.  Harry Truman was a true believer in his own certainty.

On May 17, 1980, a group of local officials and geologists once again visited Harry and implored him to evacuate.  Harry responded: “I don’t have any idea if it will blow, but I don’t believe it to the point that I’m going to pack up.”  On the morning of May 18, 1980, a 5.1 magnitude earthquake triggered a massive collapse of the north face of Mount St. Helens triggering the largest known debris avalanche in recorded history.  With this seismic shift, the volcano exploded with vegetation and structures flattened over a 230 square mile area.  In light of his proximity to the eruption, scientists theorize that Harry died from heat shock in less than one second with his body vaporized.  The site of the Lodge was immediately buried below a 150 foot landslide.  After the eruption, Spirit Lake measured 200 feet higher in elevation.

Harry Truman lived true to himself and died on his mountain.  My guess is that if Harry were forcibly removed from his Lodge and he had to live among others after the eruption, he would have simply given up on life, at least as he knew it.

Not often, but at times in mediation and settlement conferences, we come across the Harry R. Trumans of the world.  These are the true believers in their positions or causes and almost nothing will change their minds.  They would prefer to die on the mountain than alter their positions.

All parties and participants in mediation come in with a firm belief in the merits of their legal case and arguments.  The lawyers dutifully advance the key points as advocates and there exists a belief that each party is right.  For these parties, their resolve in being right is tempered with the goals of amicable resolution.  Backing off positions results in achieving agreement and finality.  On-going legal costs can come to an end.  Settlement achieves certainty of result rather than proceeding toward the uncertainty of juries and trials.  The key, of course, in reaching resolution is compromise and most mediation participants accept that dynamic.

Then there are the true believers.  Harry Truman ignored evacuation orders claiming that he does not care.  Harry disregarded the scientists’ overtures asserting that they were simply wrong.  Harry steadfastly refused to compromise noting that if he were wrong, he would go down with the mountain itself.

How can a mediator approach a true believer?  One method, of course, is to tell the story of Harry R. Truman.  The true believer can sympathize and root for Harry, but might not want to end up below a metaphoric 150 foot avalanche debris pile after a trial.  Harry’s steadfast refusal to accept even the possibility that he was wrong resulted in his own demise.  That outcome can be avoided for the mediation participant.

The mediation forum itself can be used as a tool.  My experiences suggest that, at times, these true believers need someone to listen to and hear their stories.  The true believers usually possess a “why” they feel so passionate or strongly about an issue or cause.  The litigation process is far from conducive to getting these stories expressed except eventually at trial itself.  The cathartic process explaining their stories to an attentive audience – the mediator – may be enough to allow them to move forward.  Someone has heard them and respected their stories.

Harry could not be saved from himself.  Perhaps some Harry Trumans cannot be saved.  Nonetheless, Harry’s plight could possibly teach others that extreme consequences may result with extreme positions.  We might also learn how to better address the Harry Trumans we encounter.

Of Princes and Fortunes

Of Princes and Fortunes

The Prince of Prussia demands the return of his family’s riches.  The Prince, Georg Friedrich, the great-great grandson of the last German monarch, Kaiser Wilhelm, II, sued the national and state governments of Germany to reclaim castles, artwork, jewels, and over 10,000 items deemed “family heirlooms”.  The Prince asserts that all such property formerly belonged to the Royal House of Hohenzollern with Prince Georg the rightful heir to all such property.  In vigorously pursuing these restitution claims in lawsuits initially filed decades ago, Prince Georg asserts: “I see it as my duty.”  The story behind these lawsuits rests on actions which began over 100 years ago.

The Prince of Prussia carries much historic weight on his shoulders.  The Hohenzollern dynasty traces its roots back to the 11th century.  The first official reference to the Hohenzollerns ruling middle European areas could be found in 1601.  With the unification of Germany into an empire in 1871, King Wilhelm I of Hohenzollern, then King of Prussia, was proclaimed (or proclaimed himself) German Emperor.

Wilhelm I served until his death in 1888.  His son, Friedrich III took the throne but died 99 days later.  Friedrich’s son, Wilhelm II, became the next and last emperor at age 29.  Wilhelm served until 1918.  Being on the losing side in World War I, Wilhelm II abdicated the throne in November 1918 literally days before the end of the war.  Seeing the writing on the wall, Wilhelm II went into exile in the Netherlands.

The 1919 Weimar Constitution in Germany scrapped privileges and status of nobility in favor of a republic form of government.  The nobility retained their titles and initially retained much of their wealth and possessions.  With anti-monarchial sentiment running high in the Weimar Republic, many imperial possessions were confiscated in the years following World War I.

The Hohenzollerns who lost virtually all, turned to the courts and lobbied governments for relief.  In 1926, the Hohenzollerns reached a compensation agreement with the Free State of Prussia (a short lived democratic state which emerged from the former Hohenzollern kingdom).  A separate German law in 1926 provided for the return of confiscated Hohenzollern possessions, including the 176 room family palace.  Perhaps appreciating that public sentiment still did not favor the royals, the Hohenzollerns chiefly remained in exile in the Netherlands, but now with the benefit of these decrees on their side.

Most of the Hohenzollern family property remained in the eastern regions of Germany.  More specifically, the family fortune rested in what became Soviet-occupied East Germany after World War II.  The new communist state seized ownership of the assets with the Hohenzollerns once more out of favor and out of luck.

Fast forward to 1990 with the Unification Treaty between East Germany and West Germany after the fall of the Berlin Wall.  This treaty acknowledged the unlawful expropriation of lands and buildings by East Germany and established a process to return property or compensate those with such losses.  The Hohenzollerns were back in business seeking their family fortune lost (or more appropriately abandoned) in 1918.

It could not be that easy for the Hohenzollerns to simply file a claim as so many former Germans who lost their property, could it?  Of course not!  The post-reunification laws passed in the 1990s contained a very specific exception: if any claimant, or their family, “substantially supported” the Nazis, they would be ineligible for compensation or return of property.

Enter Crown Prince Wilhelm, son of Wilhelm II who abdicated the throne in 1918.  Crown Prince Wilhelm did not remain exiled in the Netherlands, but rather returned to Germany during Adolf Hitler’s rise to power on the wave of nationalistic ideas.  In 1933, the year Germany “elected” Hitler as Chancellor, the Crown Prince was photographed wearing a German military uniform with a Nazi armband while saluting at a rally for 80,000 SA troops.  Another photograph depicts the Crown Prince and Hitler sharing a laugh while holding a private conversation.

Historic records further confirmed that Crown Prince Wilhelm congratulated Hitler on his birthdays and at New Years.  In December 1936, Crown Prince Wilhelm sent Hitler his “sincerest wishes” for Hitler’s “beneficial actions for the well-being of our beloved people and fatherland.”  BFFs for sure.

Actively engaging in military exercises proudly displaying a Nazi armband; cozy conversations with Hitler caught on camera; and confirmation of “best wishes” for Hitler’s domination: Crown Prince Wilhelm, a very public figure, appeared among the chief Nazi sympathizers.  Relying on this type of evidence, the Hohenzollern’s initial claims for compensation and restitution were rejected in 1994.  The authorities deemed Crown Prince Wilhelm to have “considerably abetted” the Nazi regime.  The Hohenzollerns and German governments have been battling ever since.

How could Prince Georg overcome these photographs and historical records which confirmed the actions of his great-grandfather Crown Prince Wilhelm?  In candidly discussing the photographs, Prince Georg himself stated it best:

“It’s very hard to look at.  These pictures are very strong.  Especially when you see the swastika on his arm.  It always makes your breath stop, and you ask yourself, ‘Why is he wearing that?’”.

Of course, Prince Georg remained prepared to respond to his own rhetorical question.  Prince Georg acknowledges that his great-grandfather wore a swastika, but the prime motivation of Crown Prince Wilhelm was to return the Hohenzollern monarchy to power.  Crown Prince Wilhelm supposedly believed Hitler could so restore the Hohenzollerns to their rightful, royal place.

This theory even finds modest historic support.  A 1932 British newspaper article opined that Hitler was secretly plotting to tear up the Weimar Constitution after his re-election and install a new form of government in Germany with Crown Prince Wilhelm as the head of state.  Prince Georg grasps onto this theory asserting that Crown Prince Wilhelm was driven by the idea of returning the monarchy, but acknowledges that the Crown Prince was misled by the idea that it might be better to appease the Nazis, at least initially.

Prince Georg’s theories, as thin as they present, suffer from the realities of how events unfolded for Crown Prince Wilhelm.  After the elections in 1933, Hitler made no move to restore the Hohenzollern monarchy.  Quite the opposite took place with Hitler becoming Chancellor and effectively dictator with absolute power.  There was no sharing of power, but instead consolidation of power in the tyrant.  Any opposition or voice of dissent was removed or eliminated.  Certainly by 1936, Hitler’s plans could not possibly include yielding power, even figure head power, to any monarch let alone a Hohenzollern with a potential legitimate claim to the throne.  Yet, despite these fairly clear circumstances by 1936, Crown Prince Wilhelm continued to wish Hitler well in his efforts to cleanse the population.  Tough images to overcome in any forum.

Prince Georg and the German governments continue on their quests for historic data and evidence to further shed light on the mindset and potential motives of Crown Prince Wilhelm and whether his actions benefitted the Nazis.  Whether anything else may be unearthed at this stage is debatable.  German procedural rules escape me and I cannot explain why or how these cases are still pending after decades of litigation.  As a mediator and attorney who regularly evaluates strengths and weaknesses in cases and positions, these claims do present lessons.

Confront the Bad.  There exist photographs of the Crown Prince undeniably engaged in military exercises on behalf of the Nazis.  The Crown Prince wore a swastika.  The Crown Prince held private discussions with Hitler and even laughed with him.  Prince Georg did not dismiss the photographs.  He did not claim them to be fake or doctored.  He did not suggest that they were presented out of context.  Prince Georg confronted them head on noting that they are disturbing and present a poor image contrary to his case.  

Way too often, I confront lawyers and mediation participants who continue to deny the significance of evidence which so clearly runs counter to their positions and claims.  With absolute denials as to the potential impact of adverse information, these participants begin to lose credibility on all matters, not simply the challenging evidence.  Acknowledge the bad evidence and admit that it represents points in favor of the adversary.  In doing so, you can move beyond the bad information and address other issues.  

Embrace the Bad.  Prince Georg found a way to use the photographs as illustrating his own theory that the Crown Prince was forced to remain in Hitler’s good graces in order to have an opportunity to reinstate the monarchy.  Prince Georg would argue that each photograph illustrates the lengths to which his ancestor had to go in order to attempt to preserve the Hohenzollern monarchy.  It would be claimed these actions were not merely distasteful, but also repugnant for Crown Prince Wilhelm.  Nonetheless, the Crown Prince so acted for a more noble cause to return the Hohenzollern dynasty.

This position is a stretch and not readily supported by contemporaneous historical records.  However, Prince Georg created a storyline which embraces each piece of bad information and uses these records to illustrate his point.  When the governments assert: “Just look at the photographs”, Prince Georg responds: “Yes.  Look at the photographs!  They each show the dedication of the Crown Prince and the sacrifices he made time and time again”.

If confronted with critically adverse evidence, seek a method to use the data affirmatively.  For example, in employment cases, plaintiffs often rely on the employer’s policies or procedures which have been so clearly violated.  Crafty counsel for the employer may be forced to concede that actions failed to comply with policies, but the policies themselves demonstrate that the employer maintains a robust system designed for the protection of all employees.  “Yes.  Look at the policy.  The policy proves that this employer cares about employees.  The policy shows that the employer invests in the well-being of the employees.  The policy confirms that the employer seeks to protect all employees.”  

I do not know whether there has ever been the opportunity for Prince Wilhelm to have settled with the German governments.  Perhaps media scrutiny, public pressures, politics, or parties’ greed and egos preclude such efforts.  If such issues do not stand in the way, someone should be counseling Prince Georg to pursue an amicable resolution.  Despite all attempts at spin, great-grandfather Crown Prince Wilhelm stood by and in support of the Nazis.  The optics on that point alone may doom the current efforts of the Hohenzollerns.  

Further, the only statements I could locate from Prince Georg all speak to his motivation as a family obligation seeking the return of riches to him and his family.  Surprisingly, I found no statements indicating that heirlooms need to be returned so that they can then be donated to museums or universities in order to preserve history.  I found no indiction that riches be returned so that the Hohenzollerns could then carry on with charitable missions or pursuits.  I found nothing indicating that Prince Georg fights this battle for the people of Germany.  Prince Georg himself could easily be portrayed as an unsympathetic, perhaps greed driven, character.  

With another decade of litigation, perhaps Prince Georg can then take solace in surpassing Jarndyce v. Jarndyce  for the lengthiest litigation on record.  In the interim, Prince Georg provides us lessons in how to settle disputes.

Small Towns and American Monkeys

“They prosecuted some poor sucker in these United States for teaching that man descended from the apes.”  

Bruce Springsteen summed up the Scopes Monkey Trial with this opening line of his 1988 song, Part Man, Part Monkey.  However, it turns out that The Boss employed a little literary license.  In the Scopes Monkey Trial, the State named John Thomas Scopes, a substitute science teacher and football coach, as the defendant in State of Tennessee v. John T. Scopes.  Instead of being a “poor sucker”, Scopes served as a willing player in a local scheme which also included the school board, business owners, and even the prosecutors.  This group orchestrated the showdown between Creationism and the Theory of Evolution which had been playing out on the national stage.

How did this national debate pitting Fundamentalists against Modernists culminate in a small courthouse in Dayton, Tennessee (population 1,800) in July 1925?  In the early 1920s, the Traditionalists resented the apparent changing values in society as embodied by the Modernists.  Rather than asking if society approved of their actions, the Modernists danced to Jazz, showed contempt for alcohol prohibition, and debated Freudian theories as part of their intellectual experimentation.  The response by Traditionalists grew with a wave of revivalism rooted in the Deep South.

Embodying everything wrong for the Traditionalists and everything right for the Modernists was a 1914 high school textbook authored by George Hunter.  Many school systems across the country used this textbook, “Civic Biology, Presented in Problems”.  While the textbook never mentions the words “evolution” or “Theory of Evolution”, Traditionalists deemed one chapter in the book to teach Evolution while not accepting Creationism.  “Civic Biology” unintentionally became the centerpiece in the crusade to ban teaching the Theory of Evolution.

Enter Tennessee farmer John Washington Butler.  Butler, head of the World Christian Fundamentals Association, lobbied the Tennessee Legislature to pass anti-evolution laws.  Butler claimed he heard that school children were coming home to tell their parents that the Bible was nonsense.  In March 1925, Tennessee passed the Butler Act making it unlawful “to teach any theory that denies the story of divine creation as taught by the Bible and to teach instead that man descended from a lower order of animals.”  Apparently, separation of church and state never made an appearance in this legislative debate.  Tennessee joined about a dozen other states enacting anti-evolution laws.  Despite the Act, Tennessee high schools continued to use Hunter’s Civic Biology textbook.

Response to the Butler Act arose swiftly with the American Civil Liberties Union offering to defend anyone accused of teaching Darwin’s theories.  On April 5, 1925, Dayton, Tennessee businessman George Rappleyea arranged a meeting with the county superintendent of schools and local attorney Sue Hicks at Robinson’s Drug Store in Dayton.  Rappleyea opposed the Butler Act and knew that Hicks and his fellow attorney brother were in favor of the Butler Act.  The school superintendent was caught in the middle seeking to educate students without breaking the law.

According to the owner-druggist, Rappleyea argued not merely in favor of or in opposition to the Butler Act, but also observed that Dayton, with its dwindling population and loss of businesses, could use much needed publicity a trial on the Butler Act could generate.  Rappleyea convinced the group to set up a claim under the Butler Act with: “If you win, [the Butler Act] will be enforced.  If I win, the law will be repealed.  We’re game, aren’t we?”

With agreement, or conspiracy, achieved, the group reached out for John Scopes regarding his teachings in high school science classes.  On May 25, 1925,  based on testimony of three students — three students Scopes conceded he coached in preparation —  the Grand Jury indicted John Thomas Scopes for violation of the Butler Act for teaching the Theory of Evolution.  Judge John T. Raulston immediately set trial for July 1925 and the stage was set for the Scopes Monkey Trial.

Every stage needs great actors.  Brothers Herbert and Sue Hicks initially served as prosecutors.  The Hicks brothers offered the role of Special Prosecutor to three time U.S. Presidential candidate William Jennings Bryan.  Despite not having tried a case in over thirty years, Bryan, a Fundamentalist and populist, accepted the position.  The press dubbed Bryan the “Fundamentalist Pope”.  Recognizing the high drama quickly unfolding, the defense reached out to a reluctant Clarence Darrow to represent Scopes.  Darrow, an agnostic, eventually agreed.

As the trial began in July 1925, competing banners decorated the businesses and streets of Dayton, locals sold lemonade and snacks to the crowd, and two chimpanzees performed in front of the courthouse with one dressed up in a suit and hat.  Thousands of people flocked to tiny Dayton with grand support for both sides in the case.  Reporters from across the country came to Dayton with a Chicago radio station seeking to broadcast the trial live.  Before Judge Raulston could call the case, the town of Dayton already won with the influx of the visitors and their pocketbooks.

Over objection from the defense, Judge Raulston opened the highly religious-charged case with a prayer (and commenced each day following with a prayer).  Before opening statements, the defense moved to quash the indictment on state and federal constitutional grounds.  In denying the motions, Judge Raulston “clarified” that the trial would have nothing to do with the constitutionality of the Butler Act.  Further, determining whether Creationism or Evolutionism was correct would be irrelevant.  The sole issue for trial was whether John Scopes violated the Butler Act in his teachings.  The Butler Act itself would not be placed on trial.

Really?  Under the most basic concepts of due process in the United States, a defendant would not be allowed to challenge whether the subject law passed constitutional muster?  With this ruling, Judge Raulston knowingly gutted the entire defense.

So, with the Butler Act itself off-limits in terms of any legal challenges, the Scopes Monkey Trial would proceed without a hint of religion or discussion of evolution, right?  William Jennings Bryan promptly set the tone with his opening statement, bellowing that “if evolution wins, Christianity goes.”  Clarence Darrow countered: “Scopes isn’t on trial; civilization is on trial.”  If Scopes were to be convicted, it would “open the doors for a reign of bigotry equal to anything in the Middle Ages.”  It appears that the judge forgot about his ruling from mere minutes before.

The prosecution immediately moved for the court to take judicial notice of the Book of Genesis from the Holy Bible —  King James Version.  The court granted the motion.

Please note:  Taking judicial notice of anything is an extreme action.  When it is done, parties are precluded from challenging the “fact” at issue.  A court may take judicial notice of a fact that is not the subject of reasonable dispute either because a) the fact is so generally known; or b) the fact is readily determined from sources whose accuracy cannot reasonably be questioned.  When charging a jury, the judge will instruct the jury to accept the noticed fact as conclusive.

Before the first witness was ever called, Judge Raulston deemed the entire Book of Genesis to be judicially noticed.  The Biblical story of creation was deemed a fact beyond challenge in this supposed non-religious trial.  Thereafter, the prosecution’s case was rather mundane with presentation of the school superintendent and seven students each of whom testified that Scopes taught the chapter on Evolution from the Civic Biology textbook.

The defense called Dr. Maynard Metcalf, a zoologist, as its first witness.  Dr. Metcalf, an expert on biology, would explain the Theory of Evolution.  Out of the presence of the jury, Judge Raulston allowed Dr. Metcalf to testify before deciding whether the jury should hear his testimony.  The cross-examination of Dr. Metcalf by William Jennings Bryan was more a mocking speech about Evolution than an effort to question the witness.  Bryan went so far as to note that Dr. Metcalf believed man descended “not from American monkeys, but Old World monkeys.”  Oh, great.  Let’s add not so subtle Nationalism and racism to this dumpster fire of a trial.

Judge Raulston ruled the testimony of Dr. Metcalf inadmissible.  The defense presented excerpts from expert reports from five additional scientific experts and proferred the topics on which each expert would opine.  The court ruled that each expert would be inadmissible.  Asked if he had any further witnesses, Clarence Darrow told the court he had but one witness left to call:  William Jennings Bryan.

The defense called William Jennings Bryan as an expert on the Holy Bible.  Over advice from his co-counsel, Bryan accepted the request to testify.  He stated that he had studied the Bible for over fifty years and, indeed, considered himself expert on the topic.  By all accounts, what followed was Clarence Darrow eviscerating William Jennings Bryan on the stand.

Darrow asked a series of questions regarding the literal interpretation of Biblical stories and whether each such account constituted science to be taught in schools.  Was Jonah actually swallowed by a whale and survived?  Did Joshua make the sun stand still?  Was everything under the sun actually created in six days (remember that the seventh day was for rest)?  The press compared Bryan’s performance on the stand akin to a “pitiable, punch drunk warrior.”

Recognizing that Bryan failed to uphold well under Darrow’s examination, co-counsel for the prosecution objected with a demand to know the legal purpose of the defense questions.  Still on the stand, William Jennings Bryan, and not the judge, retorted that the purpose of the defense was “to cast ridicule on everybody who believes in the Bible!”  With equal force, Clarence Darrow responded: “We have the purpose of preventing bigots and ignoramuses from controlling the education of the United States!”

Judge Raulston held the testimony of William Jennings Bryan inadmissible and ordered it stricken from the record.  At that point, with no witnesses and no defense to the fact that Scopes taught from the textbook at issue, Clarence Darrow asked the judge to instruct the jury to return a verdict against his own client.  Procedurally, under Tennessee law at that time, this step precluded William Jennings Bryan from making any closing argument to the jury (and the hordes of reporters).

In 8 minutes, the jury found John Thomas Scopes guilty of violating the Butler Act.  The court assessed a $100.00 fine.  Two years later, the Tennessee Supreme Court overturned the verdict on a technicality and did not reach the constitutional issues.  The Tennessee Supreme Court refused to remand the case to the trial court noting: “Nothing is to be gained by prolonging the life of this bizarre case.”  The United States Supreme Court did not hold anti-evolution laws unconstitutional until 1968.

Five days after conclusion of the Scopes Monkey Trial, William Jennings Bryan lied down for a nap and never woke up.  

Returning to Bruce Springsteen’s song, Part Man, Part Monkey, The Boss included the line: “They could have settled that case without a fuss or a fight.”  Sorry Bruce.  Hard disagreement on that one for the Scopes Monkey Trial.  First, the trial arose from a conspiracy to push emotionally charged issues as well as economics of a small town.  Settlement would defeat the entire purpose.  The Scopes Monkey Trial had very little to do with the law or the actions of John Scopes.  The litigants were more in the court of public opinion than in a county courthouse.  

I admit that I have never been requested to serve as mediator in any case with such public scrutiny and attention as the Scopes Monkey Trial.  Settlement or resolution remained the antithesis of all stakeholders, including, apparently, the judge.

However, at times, I have mediated cases where participants claim they will not settle under any circumstances.  They want their case to be tried in a public court.  They want their story to be heard by the masses.  They want the world to know just how terribly the opposing party acted.  They declare that a victory, loss or compensation at trial is irrelevant as long as they can get out the word about the scoundrels on the other side.

We typically settle those cases.  Sometimes, those positions are presented as leverage or bargaining chips to gauge concern in an opponent.  Sometimes, those positions are more sincere, but the mediation participant learns through the mediation process that trials are lengthy, expensive and most importantly, unpredictable.  As the light of day may possibly never be shed on their story, they see the benefits of resolution through mediation.

And, sometimes, the mediation participant entrenched in the “we must go to trial” position eventually yields, but only after the mediator and other stakeholders listen to and hear their story, their pain, and their concerns.  The cathartic nature of mediation releases the deeply held frustrations and allows the party to move forward.  Someone else heard them and respected their story.

Lawyers representing clients in mediation should appreciate the dynamics at play.  The client rarely has an opportunity to be directly heard in the litigation process.  Necessarily, and correctly so, all communications are through counsel.  Even in a deposition, the ability of a client to present their story is critically limited by questions of the opposing counsel.  At trial, there may be legal or strategic reasons to carefully craft any presentation by the client.  That leaves mediation and settlement conferences as potential outlets for the client.  Use the process for the benefit of the client.

Mediation may not resolve grave societal disputes such as in those at issue in the Scopes Monkey Trial.  Good thing America has moved on and we no longer have any grand societal issues dividing us.  Or, do we need to return to Dayton for more trials?

Underdogs Celebrate February 24

Underdogs Celebrate February 24

Underdogs.  We root for them.  We cheer for them.  We use adjectives such as “scrappy” and “tenacious” to describe them.  They have “vigor” and “fight”.  Something in our DNA appears to be wired to will them to success.  Underdogs appear genuine whether in literature, movies or sports.  We will leave underdogs in the arts to other writings and view this article through the world of sports.

The Loyola – Chicago men’s basketball team became the darling of the 2019 NCAA Basketball Tournament.  As a low 11 seed out of 16 teams in its assigned Region, Loyola handed defeat to the larger and established programs of Miami, Tennessee, Nevada and Kansas State on its way to the Final Four.  Jean Dolores Schmidt, BVM, all five feet and zero inches of her, serves as the Chaplain for the Loyola team and remains better known as Sister Jean.  We rooted for 100 year old Sister Jean in her Loyola scarf as much as we did Loyola during the NCAA run.  A small school with a plucky but ever so polite Chaplain taking down Blue Blood basketball programs fit comfortably as an underdog for whom we could cheer.  Go Ramblers!

Loyola’s bid fell short at the Final Four.  Need an underdog champ?  How about the 1983 NC State basketball team that defeated heavily favored Houston in the 1983 NCAA Basketball Tournament.  Houston, the overall number one seed and top team in the nation, played a frenetic pace resulting in countless fast break scoring opportunities.  That style earned the Houston team the nickname Phi Slama Jama.  The team was loaded with future NBA stars.  No one could keep up with Houston until they met NC State in the Championship game.  After NC State outran Houston to a 54-52 victory, we all recall the famous video of NC State coach Jim Valvano running around the court looking for anyone to hug.  True underdog material.

Off the field or court, issues may play in our perceptions of underdogs.  Berlin hosted the 1936 Olympics.  In no small measure, the host country, Germany, used the Olympics as a platform to promote its ruling political party, the Nazi Party, and its leader, Adolf Hitler.  Somehow, in this tense, politicized arena, Jesse Owens, a black U.S. Track and Field athlete, won 4 gold medals, set 3 world records, and broke or equaled 9 Olympic records.  As the Nazi’s promoted their brand of hate, prejudice and racism, Jesse Owens kept climbing to the top of the podium to the angst of the host nation.

Need a feel good underdog?  Take the 1969 New York Jets football team.  The Jets met the Baltimore Colts in the fledgling Super Bowl (Super Bowl III).  As an 18 point underdog, the Jets were scheduled to be the annual punching bag representing the American Football Conference sent to the Big Game.  The leader of the Jets, a confident and cocky quarterback named Joe Namath, “guaranteed” a Jets victory.  To the shock of the sports world, the Jets beat the heavily favored Colts, 16-7, in a game which many credit as setting professional football on a path toward the success it has become today.

Sports Illustrated came up with its own 100 greatest sports moments of the past 100 years.  Many underdogs earned their rightful place on that list.  Did these underdogs who knocked off mighty basketball teams from their coveted perches find themselves on top?  What of individuals who gave awe-inspiring performances under intense geo-political pressure?  Could Broadway Joe carry the Jets to the top with his delivery on a promise of an improbable win?  Not even close to Sports Illustrated Number One top sports moment of the past century.

We need to go back 41 years ago today, February 24, 1980 in otherwise quiet and quaint Lake Placid, New York, for the Winter Olympics and the Miracle on Ice.  The Soviet Men’s Hockey Team, comprised of career, professional players, each with substantial experience in international play, entered the Olympics as the odds on favorites.  Indeed, the Soviets won the hockey gold medal in five of the last six Winter Olympics.  Heading into 1980, the Soviet team had not lost an Olympic hockey game since 1968.  The Soviet Union skirted the required “amateur only” status of athletes by having its hockey players serve in military organizations with the exclusive purpose being to play hockey while receiving shelter, food and a regular paycheck from the government.  These Soviet hockey players were professionals in every sense.

In contrast, the U.S. team consisted of a collection of college players.  The U.S. put forth the youngest team at the 1980 Olympics.  For perspective, a month before the Olympics, the U.S. and Soviets played an exhibition game at Madison Square Garden which the Soviets won by a score of 10-3.  The Soviets had also just bested the National Hockey League All Star Team by a score of 6-0.

For even greater perspective, recall that 1980 remained firmly entrenched within the Cold War.  While the U.S. and Soviets played the exhibition game at Madison Square Garden, U.S. Secretary of State, Cyrus Vance, denounced the upcoming Summer Olympics to be played in Moscow due to the Soviet Union’s invasion of Afghanistan.  The U.S. ultimately boycotted the Moscow Summer Olympics.  International Olympic competition during this period remained viewed through the geo-political prism of the Cold War.  A superior and dominating hockey team was viewed as an extension of the Soviet Union itself by the Soviets and as aggressors by the Western World.

Preparing for the Olympics, the U.S. Coach, Herb Brooks, recognized that changes were required in order for the U.S. team to compete with the elite hockey teams.  Brooks utilized a more uptempo and wide open style of play more aligned with the European teams.  In addition, Brooks sought players with a certain mindset in addition to physical skills.  Tryouts for the team included a 300 question psychological examination to determine a player’s response to stress.  Only one player from the 1976 Olympic team made the cut for the 1980 team.

During the preliminary Group Play stage of the 1980 Olympics, both the Soviets and and the U.S. teams remained undefeated in their respective groups.  Shockingly, the Soviets averaged over 10 goals per game in this Group Play stage, collectively outscoring their opponents 51-11.  In the final Group Play game, the Soviets finally faced stiff competition from the Canadian hockey team.  Being so close to the Canadian border in Lake Placid and with legions of passionate fans, the Canadian fans packed the arena.  The rabid fans chanted “Rah, Rah, Canada!  Nyet, Nyet, Soviet” for all three periods.  Despite putting up the best game in Group Play, the Canadians fell just short in a 6-4 Soviet victory.

In the Elimination Round, the U.S. faced the Soviets with most (all) expecting another lopsided Soviet win on the march toward another gold medal.  In fact, ABC television planned to air the game not live, but on tape delay.  ABC even broke away from coverage of the hockey game to show men’s slalom competition and even a cartoon, “The Pink Panther in: Olym-Pinks”.  Good thing the game took place before Twitter, Facebook and the invention of social media platforms.

After the first period, the score was knotted up at 2-2.  The Soviets started the second period with its backup goaltender.  Apparently, the starting goaltender had been shipped off to Siberia for allowing 2 goals by the U.S.  After the second period, the Soviets lead 3-2.  In the third and final period, the U.S. scored two goals in the span of minutes and found themselves leading 4-3 with ten minutes left to play.  The Soviets ferociously attacked for the remainder of the game.  The Soviets took 39 shots on the U.S. goal as opposed to 16 shots on goal for the U.S.

Years later, some Soviet players admitted to panicking once falling behind the Americans.  The Soviets were not used to playing from behind against any opponent much less in an Olympic contest.  The Soviets remained even more confused when the U.S. did NOT fall back into a defensive posture, but rather continued to play the wide-open offensive style.  U.S. Coach Brooks could be heard yelling “Play your game.  Play your game” to the U.S. team.  Under pressure and stress, the psychologically evaluated U.S. team members just continued to “play their game”.

To the surprise of all, in the last minutes, the Soviets did not pull their goalie from the net in order to get a player advantage on offense.  That approach represents a basic hockey tactic when trailing by one goal very late on the game.  After the game, when questioned, the Soviet coach conceded that the goalie was not pulled as the Soviet team never practiced that play as they were never trailing an opponent.

With the clock ticking down in the final minute and the American fans going wild in the arena, announcer Al Michaels delivered his famous call:  “. . . Five seconds left in the game.  Do you believe in miracles?  YES!”  

While the U.S. team continued on and defeated Sweden for the gold medal, that game appears as a mere afterthought.  The U.S., the youngest hockey team at the Olympics with the least amount of international hockey experience, took down Goliath in a Bear suit.

Under the format in place in the 1980 Olympics, the Soviet team won the silver medal for hockey.  Traditionally, each member of a team which earns a medal turns in the medal at the Olympics to have it engraved with the player’s name.  No Soviet player turned in his medal to be engraved.

The 1980 Miracle on Ice combined various underdog elements.  The Soviets were the ultimate dominant team on the world stage arguably with the most talented and experienced players.  The U.S. lacked experience with its talent unproven.  Entering the 1980 Olympics, the Soviets simply did not lose at the Olympics while the U.S. did not know how to win.  The Soviet Union had just invaded a foreign country and the Soviet hockey team bullied its way through the international system.  The U.S. was forced to lead an international response to the aggression in Afghanistan and the U.S. hockey team had to take on the bully on the ice rink.  Intrigue on multiple levels!

But what also adds to the underdog scenario is a good back story.  In wanting to cheer for the underdog, we want to like them and, if possible, identify with them.  It became easy to root for the 1980 U.S. hockey team as we learned that the team members were true amateurs barely beyond their teen years.  We could envision ourselves taking these guys to early morning practices at the local rink just as we took our kids to soccer or baseball practice.  When the hockey game ended, these students still needed to worry about Chemistry experiments or an upcoming Economics exam.  The players were real and not some elite and untouchable group of “superior” athletes.  

Here we are 41 years later to the date and the “story” of the 1980 U.S. Olympic Men’s Hockey Team still feels good.  It resonates.  I can still root for that underdog.

OK, so we like underdogs and their stories.  We feel good cheering for the underdog.  The reality remains that most underdogs do not win precisely because they lack the talent, skills, abilities or experience of the opponent.  Can we still learn from the underdog?  Of course!  Underdogs remind us of life lessons and even help me in mediations.

Every Dog Has Their Day

Quite often, in presenting positions in mediation, lawyers can well advance their arguments and equally well tear down the anticipated positions of adversaries.  They conclude by stating that the opponent has very little chance of success if the parties proceed to trial.  Amazingly, as the mediator, I hear those same arguments from both sides with each side convincing itself that only its position can carry the day.  There are rare times, however, when all parties acknowledge that a particular case or even the judge assigned to the case present a meaningful obstacle for one side.  One side will have an uphill battle and can truly be considered the underdog in the litigation.

In those instances, I need to remind the party adverse to the underdog that not only is there a chance of success for the underdog, but underdogs do sometimes come out on top.  Loyola did not win the NCAA National Championship as the team was beaten in the Final Four.  That fact is of little solace to the University of Miami, University of Tennessee, University of Nevada, and Kansas State University – each of whom were heavy favorites and each of whom were eventually taken down by the underdog Loyola Ramblers. 

Parties can handicap the odds and determine who may be favored to win.  Yet, that process is no assurance of actually winning.  The “win” for the favored party in mediation would be to use the superior position to gain some leverage in negotiations and bring finality to the dispute through settlement.  The heavy favorite who proceeds to trial may find itself with Miami, Tennessee, Nevada and Kansas State on the sidelines wondering “What happened?”

Everyone (i.e., the Judge and the Jury) Loves the Underdog

Whether it is the Miracle on Ice, Rocky Balboa, Jesse Owens, or Atticus Finch, we all want the underdog to succeed despite all that is confronted.  We like the underdogs and love their stories.  We can feel in the underdog our own insecurities, shortcomings, and challenges and want to know that we have at least a chance as does the underdog.  We connect with the underdog.

An underdog’s story will easily and readily resonate with judges and juries in trials.  I do not suggest that these triers of fact will disregard their obligations to remain impartial and be swayed by emotions in favor of an underdog.  Rather, judges and juries are still human and they may connect or identify with an underdog.  The party who establishes a connection with a jury clearly has an advantage in the process.  Do not underestimate the underdog.

The Underdog Usually Has a Good Story

When I was a young lawyer, an old, salty, experienced trial lawyer confided one of his secrets to success.  He viewed each trial as a Shakespearean Tragedy.  There would be a side of “good” and a side of “evil” as decided by the jury.  The jury would want to be on the side of “good”.  The trick is to represent the clearly good actor or be able to position your client or the claims on the side of good.  The nature of the case was pretty much irrelevant.

One way to get to the side of “good” would be to tell a story through the trial to which a jury could relate.  Underdogs present with a ready made storyline already built in.  Underdogs, by and large, are the little guy going up against the heavyweight or the immovable establishment.  Their stories are organic and easily told.  Underdogs are well positioned to be on the side of “good” in the view of the trier of fact.

In a few weeks, we will be treated to March Madness otherwise known as the NCAA Men’s Basketball Tournament.  When the games are revealed and everyone can study the brackets, we will find ourselves looking for those underdogs to succeed and not plotting a path for the top favorites.  We fundamentally think in this fashion as we yearn for an underdog to keep making noise at the Big Dance.  The college basketball royalty may again find themselves in the Final Four.  But maybe, just maybe, an underdog may have its day and we find ourselves rooting for another Loyola-Chicago and Sister Jean.  The 1980 U.S.Men’s Hockey Team was given no chance to succeed as well.  Remember those underdogs when you hear yourself claim that an adversary has no chance of success.  Everyone else may just be rooting that underdog.

That’s an Ugly Baby!

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That’s an Ugly Baby!

Upon meeting someone’s new child, have you ever heard anyone exclaim: “That’s an ugly baby!”  Of course not.  You hear “What a beautiful cild!” or “What a pretty little baby!” or maybe even “What a sweet little thing!”.  We inflexibly utter these responses even if we secretly think that the baby looks like Yoda’s less attractive sibling.  

More on the ugly baby later in this story.  We need to turn to Congress to really start this post.  More specifically, we need to visit the words of one U.S. Representative, Michael McCaul, who represents Texas’ 10th District.  Representative McCaul communicated with others in real time while barricaded in the Capitol on January 6, 2021.  McCaul, a Republican, believed his life and the lives of many others were imminently and directly threatened with the violence.  Fast forward about one week and the prepared and measured words of Representative McCaul differ dramatically when it comes to an impeachment vote.  These differences in statements and tone provide a useful lesson and remind us how amazingly different the political world operates versus the reality in which the crest of us find ourselves every day.

Spoiler Alert:  This blog uses the words of Representative McCaul to demonstrate a few points.  It matters not if McCaul is Democrat or Republican, conservative or liberal.  We can find examples of such dichotomies from any member of Congress.  All of these politicians engage in the same behaviors and practices, regardless of party affiliation.  I am picking on poor Representative McCaul as his own words so clearly establish the points to be made on issues so very fresh in our minds.  Also, I am not picking on ugly babies.  In fact, I have never met an ugly baby and believe all babies are beautiful and sweet children.

On January 6, with the Senate scheduled to certify the votes from the Electoral College, Representative McCaul recalled the scene around the Capitol.  “I’d seen this group gathering in the morning [for the Trump rally], and I was very worried that something like this was going to happen because you have a lot of hostile people outside the Capitol.”  

Later in the afternoon on January 6, Representative McCaul remained barricaded within his Congressional offices when the U.S. Capitol was attacked by the very group about which he expressed concern.  McCaul found the composure, and time, to speak with reporters from the Houston Chronicle over the telephone as events unfolded.  Speaking from the confines of his offices, McCaul stated: “It’s a sad day for America.  The last time something like this happened was when the British invaded in 1812.”  An amazingly accurate historic reference while under siege!  McCaul described the scene: “I’ve never seen the Capitol under attack like this, where they literally broke down the barricades, they broke the windows and doors and got into the Senate chamber, and took that over trying to get into the House chamber.”  McCaul continued: “We were very worried they were going to bust the doors down.”

Representative McCaul concluded: “It’s disgraceful.  One of our finest institutions, and really the building that represents our democracy, is under attack. . . .  This is not how democracy is supposed to happen.”  In the moment, Representative McCaul presented himself as incredibly poised and thoughtful, especially for one in grave danger.  McCaul cogently offered the details and could still envision the larger picture of the impact on the institutions and democracy itself.

One week later, all members of the House, including Representative McCaul, were called upon to vote on the Article of Impeachment of the President.  In voting against impeachment, Representative McCaul stated that he wanted more time to review “the facts and the evidence” about the events relating to the Capitol riots.  McCaul noted that he opposed impeachment “at this time” but observed “I truly fear there may be more facts that come to light in the future that will put me on the wrong side of this debate.”

Huh?  More time?  Review of facts and evidence?  Representative McCaul proved himself a witness in his telephone call with the Houston Chronicle.  McCaul possessed first-hand, personal knowledge of the events at issue.  He fortunately lived through the experience, with the key being that he experienced it.  As the events unfolded, he compared the circumstances to the British military attacks on the United States in 1812.  In real time, he concluded that the actions undercut the pillars of democracy and threatened the republic itself.  No additional time or review would be necessary.

Perhaps Representative McCaul referred to President Trump’s role in inciting the crowd, as opposed to the rioting itself.  McCaul again needs to look back at his own words.  He remained worried that “something like this” would occur based on the nature of the crowd gathered in hearing President Trump speak.  

We are all aware of President Trump’s speech.  In sum, President Trump encouraged the crowd by telling them that they numbered in the hundreds of thousands, they were strong, they needed to fight, and he was with them.  Representative McCaul understood well the dynamics in play.  His preliminary comments to the Houston Chronicle on January 6 confirmed this knowledge.  Even if some details were missed, McCaul, and every House member voting on impeachment, had a week of unrelenting news stories about the incidents to become well-versed on the potential impacts.  On these issues, there could be no new or additional “facts or evidence” for McCaul to review.

Perhaps Representative McCaul wanted to better evaluate all the “facts and evidence” leading up to January 6.  We must remind ourselves that Representative McCaul himself was on the ballot on November 3 and had campaigned alongside candidate Trump.  McCaul remained fully cognizant of all positions raised in the national election, including the questioning of the integrity of the election itself.  Since November 3, Representative McCaul lived within the Washington political bubble and most surely knew of all the efforts to overturn the election, as did all of America.  There would be no need for additional facts.  There could be no need for additional evidence.  McCaul himself was part of the “Palace Intrigue”.

In casting a vote on impeaching the President, for this article, I take no issue with a vote in favor or against impeachment.  I do, however, believe that Representative McCaul claiming he needs additional time for further investigation represents a disservice to his constituents and the country.  McCaul could have stated that, in his view, the matters do not constitute high crimes or misdemeanors.  He could have opined that, in his opinion, the issues do not merit impeachment.  He could have claimed that impeachment with only a week remaining in a Presidency would further hurt a nation already divided.  Any reason along those lines would allow his constituents the ability to judge his vote.  Instead, on such a vital national issue, Representative McCaul played the classic Washington “Heads I win, Tails you lose” card.  

The claims that more time would be necessary for evaluating the conduct ring hollow.  No additional facts or evidence would be necessary as McCaul experienced the reality himself as he detailed to a reporter.  With his statement, McCaul sought to sidestep the issue in its entirety and set up himself for victory regardless how the matters eventually turn out.  If public opinion breaks against Trump, Representative McCaul can point to his claim that he, as a reasonable person, could not have rushed to judgment on matters as serious as impeachment.  But now, with the benefit of hindsight, he would have voted to impeach, just as he stated when he voted.  Alternatively, if his constituents still strongly support Trump, McCaul has the safety net of claiming that he voted against impeachment.  He would claim that nothing new or additional came out to change his mind.

I fully appreciate that Representative McCaul, and all members of Congress regardless of party affiliation, make a political calculation in positions adopted. In general, each member of Congress seeks to offend no one and be able to explain away any action or vote, as circumstances dictate.  I do not cast blame on Representative McCaul or others who so act as the system encourages and rewards that behavior.  Unless and until the system demands accountability, that dynamic will persist.  Representative McCaul can only get himself in hot water if he exclaims: “That’s an ugly baby!”

Years ago, when I represented a large corporation, I got know a plant manager fairly well.  He is credited with coining the phrase “That’s an ugly baby!”  No one wants to say “That’s an ugly baby!”  No one wants to admit or note that the baby is less than attractive.  The ugliness of the baby is hardly the baby’s own fault.  Nonetheless, at rare times, you may encounter a baby that is, well, ugly.  Yet, if you exclaim that the baby is ugly, you will encounter the wrath of parents, grandparents, and probably most with any sense of decency.

The plant manager empowered his team members to utilize this phrase in describing circumstances which had become completely screwed up or “ugly”.  Perhaps a production run was lost as product cured a minute too long in process as a timer malfunctioned. Perhaps an environmental inspector showed up for a surprise inspection just as a valve malfunctioned on a tank.  Perhaps the production manager misread the order and produced 1,000 instead of 10,000 widgets.  Each circumstance could be overcome, perhaps at significant cost and effort.  Each circumstance might have been avoided, perhaps with greater training and preparation.  Each circumstance might have been avoidable, perhaps with redundant protective systems in place.  

Sometimes, you just have to say “That’s an ugly baby!”  Once managers, operators and employees accepted accountability, they would be able to claim “That’s an ugly baby!” as there simply is no way to avoid the hard truth.  Recognition of an “ugly” baby liberated all involved to discuss the baby, accept responsibility, and find a path forward without having to again address just how ugly the baby might be.

In mediations, I tend to encounter more lawyers and participants acting like Representative McCaul rather than the plant manager.  When presented with adverse facts and circumstances which undercut their legal positions, so many practitioners assert that the “facts and evidence” yet to come out in discovery will undoubtedly support their positions.  At a minimum, more time and effort in discovery is needed before conclusions can be reached.  If fact discovery is completed and support failed to materialize for positions, the storyline becomes that yet to be seen expert reports may surely carry the day for that party.  If fact and expert discovery have been completed, it becomes “just wait for the summary judgment motions” not yet drafted.  Just as Representative McCaul can always claim he needs more facts and evidence as well as more time, so too can these participants.  

What these mediation participants fail to recognize is that the Representative McCaul approach actually keeps the issues in play for the adversary.  The opponent can, and will, keep pushing on the issue inquiring exactly as to what facts or evidence could possibly be developed that have not already been disclosed or pressing the adversary for case law on point.  No one is present to call members of Congress on the carpet for their vote, at least not when the vote is cast.  In mediation negotiations, you will be challenged and you need support beyond “give me more time”.

Where “facts and evidence” have been set beyond legitimate debate, I find it a more useful and productive approach to concede “That’s an ugly baby!” when appropriate.  Where participants turn to the mediator and acknowledge that particular facts are troublesome or positions a challenge to overcome, the discussion moves beyond those points.  The parties can change course and evaluate the worth of the position and no longer dwell on the merits.  If one party keeps pushing those points, the mediator will advise that the opponent understands and actually valued that position into the offer on the table.  All parties move forward and away from the challenging issue.  The ugly nature of the baby no longer needs to be discussed.

The mediator can assist by calling out an ugly baby if the party refuses to do so.  The mediator can explain the benefits in leaving the ugliness of the baby behind once it is acknowledged and addressed.  As for Congress, they appear to be on track to host their own ugly baby contest.  I am not certain I can assist them.

The Work of Another . . .

Lady Justice

The Work of Another . . .

January 6.  A date that may live in infamy.  One knows that he must do the right thing.  One knows that he must follow the Rule of Law.  One knows that he should follow established norms and procedures.  One knows that he should avoid the spotlight and try to avoid becoming the the story himself.  Should all this be abandoned for short term gain?

Immense pressure has been placed on him.  A number of people, including one quite famous person in a power position, has asked him to undertake actions he himself may question.  These suspect actions may well, if not certainly, benefit those demanding such conduct.  But, in the long run, will these dramatic actions benefit him?   Will he and others involved in this scheme ultimately be remembered only for this dark episode?

Of course, these inquiries relate to Jeff Gillooly who orchestrated the January 6, 1994 attack on Nancy Kerrigan.  Gillooly, soon to be ex-husband of Kerrigan’s rival figure skater Tonya Harding, served as the “mastermind” in having Harding’s bodyguard Shawn Eckardt hire hitman Shane Stant to club Nancy Kerrigan’s knee with a 21 inch metal baton as Kerrigan left the practice iceskating rink.  Stant was to break Kerrigan’s leg and force her out of the U.S. National Figure Skating Championships as well as the upcoming Olympics.  The plot was worthy of its setting having been developed in Gillooly’s double-wide trailer.

The attack took place 2 days before the national championships and, indeed, did sideline Kerrigan with but a bruised knee.  Tonya Harding easily won the national figure skating championship without the competition of Kerrigan.  However, the U.S. Olympic Committee still offered Kerrigan a spot on the U.S. Olympic Figure Skating Team.  Tonya Harding and Nancy Kerrigan together represented the United States at the Lillehammer Winter Olympics.  The drama dripped from our television screens.

Tonya Harding initially denied involvement in, or knowledge about, the planned attack on Nancy Kerrigan.  Cracking the case appeared none too difficult for the authorities as the baton wielding hitman, Shane Stant, turned himself in on January 14.  Stant immediately implicated Jeff Gillooly and Shawn Eckardt.  Gillooly surrendered to authorities on January 19 and quickly implicated his then wife, Tonya Harding.

As for her part, Harding apparently could not read the tea leaves or appreciate that she made deals with those who ultimately looked out for their own interests first and foremost.  While her initial FBI interrogation was in process, Harding’s lawyer issued a press release noting that Harding and Gillooly were separating and included the following quote from Tonya: “I continue to believe that Jeff [Gillooly] is innocent of any wrongdoing.  I wish him nothing but the best.”

Before the ink dried on that press release and from the the file of “No Honor Among Thieves”, Tonya Harding subsequently implicated Gillooly’s involvement in the attack on Nancy Kerrigan during this same interrogation.  Harding stated: “I hope everyone understands.  I’m telling on someone [Jeff Gillooly] I really care about.”  Well, at least Tonya Harding felt bad about ratting out Jeff Gillooly who was busy ratting out Harding after the hitman ratted out everyone.

What became of those involved?  Harding skated to a U.S. National Championship and a place on the Olympic Team heading to Lillehammer.  After shedding tears for the judges about a broken skating shoelace during warmups, Harding finished in eighth place.  Nancy Kerrigan’s knee recovered and she was awarded a place on the U.S. Olympic Figure Skating Team.  She took home a silver medal wearing the same dress she wore when attacked by Shane Stant.  However, Nancy Kerrigan never gained the title of America’s Sweetheart which usually goes along with an Olympic medal in figure skating.

Stant and the getaway driver plead guilty to conspiracy to commit second-degree assault.  They each served jail time.  Bodyguard Eckardt plead guilty to a charge of racketeering and also served time.

In a plea deal, Tonya Harding plead guilty to conspiracy to hinder prosecution.  The guilty plea was conditioned on Harding’s resignation from the U.S. Figure Skating Association — a move which effectively ended her skating career.  Harding was even frozen out of Ice Capades and all other skating programs where retired skaters go to earn a living.  

But what of Jeff Gillooly?  Until the knee-capping caper, Jeff was the guy to do all of Tonya Harding’s bidding.  He would do anything for her and she clearly called all the shots.  He was content to remain in the background while Harding received all the credit and accolades.  

When called upon, Gillooly cast aside the rule of law in favor of improper and illegal acts.  So what if others were torn down so that Harding could advance.  So what if Harding would advance not on merit, but because Gillooly crippled the system.  So what if America’s figure skating team might be viewed as a disgrace by the rest of the world.  Winning is everything and all else be dammed.

But society has not placed Jeff Gillooly on a pedestal.  In fact, to avoid more serious charges, Gillooly plead guilty to racketeering in exchange for his testimony against everyone else involved in the planning and executing the attack on Nancy Kerrigan.  The court sentenced Gillooly to two years in prison.  Tonya Harding immediately separated from Gillooly and divorced him while, of course, wishing him the very best.  Those good wishes did not last as Harding eventually sued Gillooly for damages over other issues.  Due to unfavorable press over the incident, Gillooly changed his name after leaving prison.  His last name is now Stone (at least he did not change his first name to Roger).  

Marriage shattered, a convicted felon, forced to change his name, Jeff Gillooly eventually became nothing more than the answer to a trivia question.  When viewed with the benefit of the passage of time, Jeff Gillooly deserves to be cast on the pile of “nobodies” who abandoned societal norms, rules and laws all with the aim of benefitting the nefarious scheme of another.  

When he needed her help the most, Tonya Harding abandoned Jeff Gillooly.  H.R. Halderman, Chief of Staff for President Nixon, ultimately served 3 years in prison for conspiracy and obstruction of justice for his part in the Watergate break ins.  Halderman committed the crimes for his boss and believed that a pardon would be his reward if ever needed.  Halderman was abandoned by the one he served.  More recently, long time Trump attorney Michael Cohen bragged that he would “take a bullet” for Donald Trump.  Cohen admitted to what the sentencing judge called a “smorgasbord of criminal conduct” in representing Trump.  Cohen’s reward?  Three years in prison and no pardon.  Completely abandoned by the one he served.  

Just some lessons to consider for those who may feel compelled to undertake questionable or disingenuous actions on a January 6.  Just ask Jeff Gillooly, I mean Jeff Stone, about his memories of January 6.