A Clever Picture in a Legal Proceeding is Worth a Thousand Words

Our “distinct” professions often have a lot in common and that recently came to life. I’m a trial lawyer and my girlfriend, Renée Kennison, works in marketing as a creative concept developer. Among other things, both of us shape and distill ideas for maximum impact. There is a science, but also an art, to doing this well. We often look over each other’s shoulders as we work. Two days ago, it was Renée's turn to play lawyer.

I had been struggling to think of a good way to make an argument in an arbitration. I represented a married couple who had been the victim of fraud committed by a time share resort. One of the many issues of the case is that the resort was obligated by Missouri law to disclose in writing at the time of the sale that the couple had five business days from the date of the sale to rescind the deal. Missouri law allows time share purchasers to do this by merely sending a letter to the resort. Missouri law requires the resort to make this written disclosure in a precise way. The written disclosure needs to be 18-point type and it needs to have precise wording. Here’s the law:

Instead of simply printing this language as-is on a piece of paper and handing it to the couple, the resort played cute. First of all, the timeshare closing involves 50 pages of documents, many of them filled with with fluff and others with legalese. It's comparable to attending a real estate closing for a residence. Second, the resort camouflaged the disclosure by sandwiching the disclosure between two irrelevant paragraphs of fluff. It also made the entire disclosure document 18-point bold type to hide the important part of the notice, the part that gives the purchasers 5 days to cancel the deal, no questions asked. Also, instead of putting the word “Notice” at the top of the sheet as a warning to pay special attention to the notice, the resort tucked the word “Notice” into the text as though it were a verb. I can’t disclose the actual facts of this case because the resort contract forces this case to be in confidential arbitration, but the resort printed something comparable to this as its “cancellation notice”:

DEAR NEW OWNERS!

WELCOME TO OUR JOYOUS FAMILY OF RESORT OWNERS. IT IS GREAT TO HAVE YOU IN OUR FAMILY AND WE HOPE YOU ARE SO HAPPY BEING PART OF OUR COMMUNITY. PLEASE REFER YOUR FRIENDS AND FAMILY TO US, SO THAT THEY CAN BUY TIMESHARES TOO.

NOTICE YOU HAVE THE RIGHT TO CANCEL THIS AGREEMENT WITHIN FIVE DAYS AFTER THE DATE OF THIS AGREEMENT. CANCELLATION MUST BE IN WRITING AND IF SENT BY MAIL, ADDRESSED TO THE OTHER CONTRACTING PARTY AS SHOWN ON THIS AGREEMENT, CANCELLATION WILL BE ACCOMPLISHED AT THE MOMENT THE LETTER IS POSTMARKED. IF SENT BY MAIL, THE LETTER MAY BE CERTIFIED WITH A RETURN RECEIPT REQUESTED. YOUR RIGHT TO CANCEL CANNOT BE WAIVED.

AGAIN, IT’S GREAT TO HAVE YOU IN OUR COMMUNITY. ENJOY HIKING, BIKING AND ALL OF THE OTHER AMENITIES. NEVER HESITATE TO REACH OUT TO US IF WE CAN BE OF ASSISTANCE TO YOU. YOU ARE IMPORTANT TO US. NOW GO ENJOY YOUR RESORT.

The resort is claiming that it followed the law simply because all the statutorily-required words appear in their written notice.   I was looking for a way to make a high-impact argument that the resort’s method of disclosing the 5-day right to cancel violated both the terms and the spirit of Missouri Law. After hearing my concern, Renée said, “What the resort has done is like creating a highway sign that hides the important warning in between two unimportant things. Perfect! Renée offered to create an image for me, and I used her image today in my closing argument:

I argued the case today. In a few weeks, we'll see whether my clients prevail.

Continue ReadingA Clever Picture in a Legal Proceeding is Worth a Thousand Words

A Giant Leap Backwards for Humankind: What the Smithsonian’s National Museum of African American History & Culture Thinks About White People

What would you think if a Fortune 500 Corporation Human Resources Director walked up to a podium and announced the following to a big crowd: "Whiteness and white racialized identity refer to the way that white people, their customs, culture, and beliefs operate as the standard by which all other groups of are compared.”

Say what?

Assume further that this HR Director then announced that the following are the “common characteristics of most U.S. White people most of the time”:

  • White people are self-reliant;
  • White people are independent and they highly value autonomy;
  • White people use the Scientific Method, with objective rational linear thinking, cause-and-effect relationship and quantitative emphasis;
  • White people delay gratification and follow rigid time schedules.
  • White people believe the ideal social unit is the nuclear family of father, mother and 2.3 children;
  • The children of white people have their own rooms and they are independent;
  • White people believe hard work is the key to their success and they believe “work before play”;
  • White people plan for the future by delaying gratification and they follow rigid time schedules.

Upon hearing this list, you would strongly suspect that you were listening to a white supremacist or that you had unwittingly stepped into a time warp that threw you back 200 years. Upon reminding yourself that this is actually the year 2020, you would conclude that this big corporation should be sued out of existence based on civil rights violations for creating a hostile work environment for its Black employees.

Unfortunately the source of these words and ideas is a webpage of the National Museum of African American History & Culture, a Smithsonian museum supported by U.S. taxpayers. Here is separate image of the “Whiteness” infographic. 

How does one even begin to articulate the many problems with these ideas?  How should concerned people respond when false information is being used to divide us. What is the solution when a public museum dedicated to African American history mocks the words of Martin Luther King?

I write this article fully acknowledges that racist conduct can still be found in many places in 2020 and that this bigotry should be dealt with aggressively through civil rights laws and social condemnation. We must condemn all real instances of racism, but we must simultaneously question the foundational concept of "race" from which the possibility or racism sprouts.  In short, anyone who wants to eviscerate racism needs to fight a two-front war. NMAAHC's "Whiteness" page doubly fails to fight this two-front war on racism.

Advocating that we should treat people differently based on skin color (as NMAAHC is enthusiastically doing) is throwing gasoline on our racial fires. The "Whiteness" page is stunningly divisive and it is factually unhinged. I would no more expect NMAAHC to be teaching us to be racist than I would expect the American Museum of Natural History to be teaching us that the earth was created 6,000 years ago and that modern humans co-habited our planet with the dinosaurs.

It is demonstrably false that people are born color-coded such that others can determine their personalities, habits and skills by noticing their skin color. That's because immutable traits of individuals, such as skin color, do not determine personality, resilience, aesthetics, capacity for empathy, intelligence, aspirations, parenting skills or any of the other human traits discussed on the NMAAHC "Whiteness" webpage. Skin color doesn't  dictate content of character any more than the many other things over which we have no control, things such as eye color, hair color, whether we have six toes, our birth date or the types of bumps we have on our heads. Constricting the way we evaluate people by using an Overton Window of black versus white  uses the exact same flawed approach used by astrology and phrenology, which also proclaim content of character by reference to equally irrelevant observations.

Many of the human traits listed on the museum’s website ("work before play" and "rational thinking") are demonstrably not true of many “white” people. Many of these same traits are compellingly true of (and embraced as valuable by) many successful Blacks.

NMAAHC's suggestion that we bifurcate people into "white" and "black" is based on an enormous falsehood. There is no meaningful way to distinguish who is white and who is black, because we are all varying degrees of brown, we are all from Africa (and see here) and we are all interrelated.Trying to determine who is more closely related to whom by physical appearance is often counter-intuitive:

By analyzing the genes of present-day Africans, researchers have concluded that the Khoe-San, who now live in southern Africa, represent one of the oldest branches of the human family tree. The Pygmies of central Africa also have a very long history as a distinct group. What this means is that the deepest splits in the human family aren’t between what are usually thought of as different races—whites, say, or blacks or Asians or Native Americans. They’re between African populations such as the Khoe-San and the Pygmies, who spent tens of thousands of years separated from one another even before humans left Africa.

Nor is there any meaningful basis for declaring that there is any unified "white culture" or a unified "Black culture." No people of any color all think the same. Not even close. No person has been authorized by all whites or all Blacks to speak on their behalf.  Not even close. "Race" is a stunningly unscientific concept.

There is more genetic diversity within a “race” than between "races.". Further, "there is no homogeneous African race" and "there is more diversity in Africa than on all the other continents combined" (see graphic under this title here) . As reported by National Geographic in an article titled, "There’s No Scientific Basis for Race—It's a Made-Up Label,"

[W]hen scientists set out to assemble the first complete human genome, which was a composite of several individuals, they deliberately gathered samples from people who self-identified as members of different races. In June 2000, when the results were announced at a White House ceremony, Craig Venter, a pioneer of DNA sequencing, observed, “The concept of race has no genetic or scientific basis.”

Continue ReadingA Giant Leap Backwards for Humankind: What the Smithsonian’s National Museum of African American History & Culture Thinks About White People

Musical Brief-Writing

I'm working on a long legal brief tonight, third day in a row. Due Monday. Tonight's music: Tori Amos, "Scarlet's Walk." Currently playing: A sweet and lofty song called "Your Cloud."

My brief-writing music earlier today: "In Stride," an album by an excellent eccentric jazz group called "Oregon," featuring Ralph Towner, stunningly good on both piano and guitar. Check out the comments for a sample video, a song called "If."

When it's time to do mechanical proof-reading, I sometimes ride the hypnotic energy of Essentials of Deadmau5. Played Loudly. Rather amazing thing about Deadmau5. He composes on a regular keyboard (numbers and letters, not a keyboard that looks like a piano). I watched his Masterclass course and was mesmerized.

I have a difficult time sitting still when reading and writing 12 hours per day. Music helps to keeps me in my seat . . . I have many other favorite artists, but many of them take my focus too easily from the legal work to the music (e.g., Wes Montgomery, Tower of Power, Sarah Tavares, and lots and lots of covers).

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Defending Free Speech versus Suppressing Free Speech

Excellent Tweets from Paul Graham:

Thus, we should guard the right to free speech like we should guard (though we often don't) against restraining competition. Everyone is free to speech and to be heard it is not often easy. The temptation is to gag the competition rather than to prevail on the merits in the marketplace of ideas. Putting undue pressure on an organization to fire someone from their job to deplatform them is not having one's ideas prevail in the marketplace of ideas. The only type of fair fight is ideas versus ideas, and these days anyone with a computer and an internet connection has a right to compete.

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There is no better Time Than Right Now to Make Certain that Colleges and Universities Affirm Their Commitment to Free Speech

Free speech is increasingly being attacked at colleges as university. It it claimed by many the vigorous and free speech is a bad idea in that it allegedly harms students and faculty. This is a critical time to push back hard on such claims. Muzzled speech and censorship conflict with the main purpose of colleges, which is to expose students to many diverse ideas and to train them to deal with the ideas they find objectionable by discussing them civilly.

Greg Lukianoff of FIRE (FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION) warns:

Threats to free speech and academic freedom on campus constantly change: One year, it’s speech codes and federal government overreach that present the greatest danger. The next, it could be speaker disinvitations and heckler’s vetoes.

With the targets constantly shifting, what are some effective steps college presidents can take right now to fight censorship, regardless of where it originates? Presidents like to say they are in favor of free speech, but few have presented a plan of action that would improve the state of free speech for their students and faculty members.

In this video, Lukianoff asserts that the presidents of colleges and universities need to hear these five things loud and clear:
1. Stop violating the law.
2. Pre-commit / recommit to free speech and inquiry.
3. Defend the free speech rights of your students and faculty loudly, clearly, and early.
4. Teach free speech from day one.
5. Be scholars: Collect data.

Lukianoff urges everyone concerned with these issues to take action today:

Share this list with your college or university president to let them know that you want them to lead the way in protecting free speech and academic freedom on campus.
Lukianoff urges everyone concerned with these issues to take action today:
Share this list with your college or university president to let them know that you want them to lead the way in protecting free speech and academic freedom on campus.

The Mission of FIRE:

FIRE’s mission is to defend and sustain the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience—the essential qualities of liberty. FIRE educates students, faculty, alumni, trustees, and the public about the threats to these rights on our campuses, and provides the means to preserve them.

Continue ReadingThere is no better Time Than Right Now to Make Certain that Colleges and Universities Affirm Their Commitment to Free Speech