f/k/a archives . . . real opinions & real haiku

July 31, 2008

chilly response to cuil

Filed under: viewpoint — David Giacalone @ 6:00 pm

cuilLogo . . . Uncool.

So far, the f/k/a Gang is not warming up to the new search engine cuil [pronounced “cool”], which went public on Monday. See “Former Employees of Google Prepare Rival Search Engine” (New York Times, July 28, 2008) Cuil says it is far more comprehensive than Google (indexing “all the internet” not just part of it), and that they’ll both protect the privacy of users and help you find more relevant results — by looking at the context of the searched term rather than just the popularity of the page where it is found, by giving you longer excerpts from the pages found, and by providing images to assist in your culling through the results.

Saul Hansell, of the NYT “Bits” weblog, had about the same reaction that I did on Monday:

I played with the site a fair bit when it turned on this morning. So far it doesn’t do much for me. My test of Ms. Patterson’s claim about the size of its search index was to type in the names of some not-so-famous high school and college friends. In half a dozen tries, Google consistently found more pages and put the more general and authoritative pages higher.


Many across the internet have had similar reactions in their reviews, including Tim Beyers of The Motley Fool, who wrote “Google is Cooler than Cuil” (July 29, 2008). The Guardian quotes a Techcrunch commentator: “If this wasn’t started by some ex-Googlers, nobody would give a hoot.” [update (Aug. 2, 2008) S. E. Kramer at Popular Mechanics has a lengthy review and says: “it’s hard to see why anyone would use it as a backup engine, never mind as a primary one.”]

Meanwhile, linguists have looked into Cuil’s claim that their name is derived from an old Irish word for “knowledge” and found it lacking. See Language Log and Language Hat. Language Log’s Mark Liberman notes: “There are two words `cuil’ that I know. One means `enmity’ or `bad attitude’ or `resentment’, . . . The other means `fly’.”

Others, such as Hanno Kaiser at the Antitrust Review weblog (see here and there) and Phillipp at Google Blogoscoped are having fun with the frequently misplaced photos that Cuil includes with their listings. (e.g., George Pataki for Bill Clinton, Martin Luther King, Jr., for Mahatma Gandhi) Some of the linked photos are rather bizarre and definitely funny. Don’t go asking for a date based on the image alone!

I’ve also noticed that if you right-click on a Cuil image, you don’t get referred to the original image Cuil has culled from the internet. Instead, you find the image on a cuilimg.com webpage. If you left-click on the result image, you are most often brought to a page that doesn’t even contain that image.

Thus, this photo of the street signs at the Schenectady intersection of Church and State Sts. (which I snapped myself) is included with many of the results when you Cuil-search “David Giacalone.”. But, the way Cuil has things arranged, you’d be hard-pressed to know that it originated here at f/k/a.



Monday night, like most first-time Cuil users, I did the vanity search of my own name, “David Giacalone.” The results were depressing. It took 14 pages before there was a direct link to this weblog, which is — let’s face it — the thing I’m best known for in cyberspace. On Tuesday, there was a link to f/k/a on the first Cuil page, but it gave no title for the posting, and showed mostly nonsense font for the text — not exactly likely to lead to a click-through. You then had to go many pages deeper into Cuil to find another link to f/k/a. Both Google and Yahoo! start right off with links to my homepage, when someone searches for “David Giacalone,” and Yahoo!’s second link is to our informative About page. A prominent Cuil result was to a site that said “No Profile has been submitted by David Giacalone.”

sleuthSm As the proprietor and author of this weblog, however, my concern with Cuil results goes much deeper than quibbling about misplaced and unidentifiable images, or over what happens when you search my name. If you come here often, you know that I have long been most amazed and grateful over our placement in Google and Yahoo! search results. (e.g., way back in May 2005, and just last May) For a wide variety of topics that mean the most to me, f/k/a lands at or near the top of the search results of the major search engines. As a result, my Stats Page tells me that this little weblog has had well over 100,000 visitors referred by Google in the past two years.

However, my browsing of topics at Cuil suggests that the flow of visitors will be greatly reduced if too many people switch from Google and Yahoo! to Cuil. And, because we often have quite detailed (and, yes, thoughtful and entertaining) pieces on topics that catch our fancy or our conscience, Prof. Yabut and Mama G. have concluded that the searching public will be the losers, if they switch from Googling to Cuil-ing.

For example:

  • Baseball Haiku: Nowhere else on the web will you find as many “real” haiku about baseball as we’ve got here at f/k/a. Our baseball haiku page went up in April 2005 with dozens of haiku and senryu on the subject. We’ve also been telling you about the wonderful Baseball Haiku book for a year and a half — and posting much more of its contents than any other website (because so many of our Honored Guests are included in the book). If you Google “Baseball Haiku”, our baseball haiku page is the first result, and our first major post about the book is the second result. In contrast, if you Cuil-it, you will find page after page of links to vendors selling the Baseball Haiku book, but no link to f/k/a until page 9. And, that link doesn’t even go to any of the many pages with the term “baseball haiku” in the title, which focus solely on the topic.

sides chosen
the boy not chosen
lends me his glove

…….. by Ed MarkowskiBaseball Haiku (2007); bottle rockets (7:1, 2005)

  • got breastmilk?” As we noted yesterday, the story of the “Got Milk?” folks going after the Alaskan breastfeeding advocate Barbara Holmes, who made a few “got breastmilk?” t-shirts, for trademark infringement has received a lot of blogispheric attention over the past week. If you Google /”got breastmilk?” alaska/ you’ll find nothing but links to relevant weblog posts (including ours) on the first page, and then many more after that. However, if you Cuil it, you will be steeped in links to WIC programs and advocacy groups, but not one of the measly 48 responses is about the trademark controversy. (One bonus from Cuil, however, was finding Barbara Holmes’ website.)
  • Speed Limits and Gas Efficiency: This important and timely topic only pulls up four results at Cuil, none of which discusses the science or politics of the issue. On the other hand, Googling /speed limits and gas efficiency/ garners over 200.000 results, with the national policy discussion monopolizing the first page, which includes a link to a major post here at f/k/a.
  • Obama Satire: Our post on The New Yorker cover is the 4th result today (it’s been higher) when you Google /Obama satire/. When I Cuil it, that posting does not appear on the first twelve pages of results (and I have no patience to keep clicking to see if it appears there at all). “Nuff said.

umpireG I could go on and on, but there would be little to gain from it. My biggest concern about the Cuil results I’ve seen so far is that it will be very hard for haiku fans to find the treasure trove of poems by each of our Honored Guest Poets. With Google or Yahoo!, searching the name of one of our poets will almost always bring their f/k/a Archives Page as one of the first few results (or at least on the first page). I tried lots of their names with Cuil, and could not find our archives pages listed at Cuil (although each of those pages has the poet’s name in its title), even when looking through a dozen pages of Cuil results. When there was an early link to f/k/a, it was often to a post that had no poetry and merely listed all 26 of our Honored Guests.

Like many others who have experimented this week with Cuil, I’m not sure what would draw me back. Rather than finding more relevant results than with Google or Yahoo!, I kept finding merchandisers and links to non-substantive mention of the issue searched, or to blog aggregators and not the posting in question. I’m going to spend my limited time with Mssrs. Google and Yahoo, and maybe head over to Cuil — with low expectations — if I strike out with the other two. Feel free to join me sticking with what works.

afterwords: (Aug. 2, 2008) Google says it has over 100,000 results for the query /Cuil responses/ and the post you are now reading has been #1 the past couple of days. The same query at Cuil has 26 results, only five of which are actually presented — none of which is this posting.

using his nose
the dog searches
the violets

… by Kobayashi Issa, translated by David G. Lanoue

one glass of wine
Google keeps asking
“Did you mean ____?”

stone sober
Cuil keeps saying
“no results were found”

.. by dagosan

July 30, 2008

got jugs?

Filed under: Haiku or Senryu,lawyer news or ethics,q.s. quickies — David Giacalone @ 10:35 am


. . . R U confused? . . .

it’s not swearing
it’s the only language
those cows understand

… by DeVar Dahl – from A Piece of Egg Shell (Magpie Haiku Poets, 2004)

ooh ooh Just a bunch of boobs? What were Knox Lemmon Anapolsky LLP, lawyers for the California Milk Processors Board, thinking when they sent a heavy-handed cease-and-desist letter to Alaskan artist and breastfeeding adovocate Barbara Holmes? The letter claimed that her hand-lettered baby onesies and t-shirts asking “got breastmilk?” infringed on the Milk Board’s “got milk?®” trademark. (See “‘Got milk’ lawyers huff at Talkeetna artist’s parody” (Anchorage Daily News, July 25, 2008); via Overlawyered.com; and see “Legal Blog Watch;” Language Log; and ) According to Paul Bratton, her “Alaska Backwoods Lawyer“:

Holmes has been given a deadline of July 22nd to ship to CMPB “all ‘got breastmilk?’ onesies and t-shirts”; destroy or remove all depictions of the offending items; and account for all profits generated by the sale of the items [Ed. Note: a total of either 6 or 16 shirts].

Click to see Barbara Holmes’ “one-woman operation” Mountntop Designs, where you can see a lot of her products and learn more about her. Her baby bugs clothing page does not have the Got Breastmilk? design.

Given the over-weaning ubiquity of the internet and the gleeful cattiness (and adolescent prurience) of the blawgisphere, the Board’s lawyers must have known that coming down hard on a sympathetic “Little Guy” like Holmes, with so little apparent legal justification and no competitive urgency, would earn them universal ridicule and condemnation. (see, e.g., The Legal Watercooler, “Attorney needed course in P.R.;” and Info/Law, “The most thorough trademark policing ever“) Are they just churning for billable dollars or out of their client’s control? Maybe not.

At their website, Knox Lemmon proclaims: penny smpenny sm

“Our practice encompasses business counseling and business litigation. Our business counseling lawyers work closely with our business litigators to exchange ideas and develop strategies for success. This close working relationship between our business counselors and business litigators benefits our clients’ interests because it takes account of the practical realities facing today’s businesses. (emphasis added)

Let’s accept their bragging as true: CMPB’s trademark lawyers know what they’re doing. They knew the near-frivolous C&D letter to the Alaskan artist concerning breastmilk would generate a gigantic response among the legal community and the press. They counted on it to achieve:

Their ultimate goal: Informing anyone else planning to free-ride on the fabulous success of the Got Milk? campaign — for commercial gain or make a point with stinging parody (as PETA tried to do last year) — that the Milk Board would protect its “beloved trademark” with a vengeance.

If so, they might be right and have benefited their client. But, that won’t stop me from concluding that this attack on Barbara Holmes and her onesies is silly as a matter of law and one more example that we’ve become an “overlawyered” nation.

In his post “got confusion?,” Linguistics professor Roger Shuy of Language Log asks and explains “[W]hat sort of claim could CMPB hope to make if it formally charges that “Got Breastmilk?” infringes its own trademark and will confuse consumers about the quality, nature, and origin of the product?:”

The three most common questions in trademark disputes are:

* Do the two names sound alike?
* Do the two names mean the same thing?
* Do the two names look alike?

In recent years some trademark cases also charge dilution, meaning that the reputation of the original mark has been diluted, tainted, blurred, or eroded by a second user, thereby causing consumers to be confused about the quality and origin of the products.

(In case you’ve somehow forgotten what the Got Milk? advertising campaign looks like, click to see samples of Got Milk? Posters, and check out the Official Got Milk? website)

Professor Shuy walks us through the above questions and — even without himself having seen a photo of Holmes’ onesies (a b&w version appears above) — sure convinced me that the chance for confusion is next to zero.

. . . . For one thing, the Milk Board’s trademark always uses the same distinctive font, which is a far cry from Holmes’ hand-lettered batik inscription.

According to lawyer Bratton:

“This law firm is representing Ms. Holmes and is sending a reply asserting the artist/advocate’s free speech rights, the fair use doctrine’s support for parodying of well-known trademarks, and the simple fact that encouraging mothers to breastfeed their infants cannot possibly create any real confusion or ‘tarnishment’ of CMPB’s trademarks.”

As several commentators have pointed out, Barbara Holmes — who has stated “It’s silly, but scary at the same time” she said. — herself probably makes the best pithy response to the Milk Board’s trademark claim:

“They say I’m going to confuse milk consumers,” she said. “How can you get confused between a boob and a bottle of milk from the store? They’re two different kind of jugs.”

Judging from their past practice, this seem like the kind of case that would interest our friends David, Hanno and Manfred at the Antitrust Review weblog. Perhaps they could help us understand the intersection of Intellectual Property and Antitrust laws, and whether the Milk Board could reasonably claim that human breastmilk poses a competitive threat to the bovine variety.

If the gang at the Knox Lemmon law firm are into etymology as much as Prof. Yabut is, they might want to point out in rebuttal that any kind of jug makes people think of milk and/or breasts. [The Got Milk? campaign has always featured both breasts and moustaches prominently in their ads.] You see, the slang term “jugs” for breasts apparently was inspired by milk jugs — but, the word jug meaning a container for liquids seems to come from the early English word for maidservant. As they say at Etymology Online:

. . jug: “deep vessel for carrying liquids,” 1538, jugge, variant of jubbe, of unknown origin, perhaps from jug “a low woman, a maidservant” (mid-16c.) . . . . Jugs for “woman’s breasts” first recorded 1920 in Australian slang, short for milk jugs.

passing the jug
the warmth
of many hands

… by Jim Kacian from from Presents of Mind (1996)

my hand curves
to fit your breast …
the windowsill, snowladen

…. by Michael Dylan Welch – from Open Window, haiku and photographs

ooh ooh Give ’em jug: Despite the possible etymological justification, I’d say the Milk Board’s lawyers deserve JUG – the term used in Catholic schools (including my Jesuit high school, as discussed here) for detention. Although some wags have opined that JUG is an acronym for “Justice Under God,” I’m inclined to think the word comes from the Latin word “Jugum” (burden or yoke), which led to the following meanings of the word (per The American Heritage® Dictionary of the English Language: Fourth Edition. 2000):

jug n. 3. Slang A jail.
jug v. 2. Slang. To put into jail.

I’ll let my intelligent readership draw its own conclusions about the likelihood of confusion or dilution, and otherwise muse upon the many meanings of jug.

afterwords (July 30, 2 PM): Coincidentally (and maybe a wee bit ironically), August 1 through 7 is World Breastfeeding Week. To celebrate, Linda at the courageously-named Got Milk?: Make Life Sweeter weblog is having a “Got Milk? Contest,” and is seeking recipes for a “sweet dish with milk as an ingredient.” She wants bloggers to post about their entry and is taking direct entries from those without weblog. (via Crunchy Domestic Goddess)

(update: July 31, 2008): I wonder when the lawyers at Knox Lemmon will get around to harassing the Oshkosh, Wisconsin breastfeeding advocates selling this Got Breastmilk? Onesie.

update (Dec. 1, 2008): Thanks to a Comment below from Jill Jalen, we have learned that the Milk Board is seeking a trademark for “got breastmilk?”.  See our follow-up post.

For those who came here looking for more one-breath poetry, here a jug-full by f/k/a‘s family of haiku poets:

the baby finds
the breast

……………………. by Yu Chang from Upstate Dim Sum

praising the hostess
in his moustache

. . . by Randy Brooks – from School’s Out

morning milking
the white
of mother’s breast

………. by alice frampton – New Resonance 3; Haiku Canada Newsletter XVI:3

heat wave–
the cow’s udder
hangs in the pond

… by DeVar DahlBasho Mem. Museum (English selections, 2005)

my best moo
all the cows
stop and look

… by DeVar Dahl – A Piece of Egg Shell (Magpie Haiku Poets, 2004)

fine print on her tee-shirt
she glares at me
for staring

… by dagosan — with photo haiga – at MagnaPoetsJF (Sept. 28, 2007)

winter moon
she tests the milk
on her wrist

.. by w. f. owen — Haiku Notebook

spilt milk
spreading along the grout lines
morning chill

… by Carolyn Hall – Heron’s Nest 11:5

our son spills his milk,
not an iota
of reaction from him

… by Tom Clausen – from Homework (2000)

bristled pine –
the autumn moon
has a moustache!

…. by Laryalee Fraser – Simply Haiku Vol. 2:2

dairy country…
in the pharmacy window
a breast pump display

… ed markowski – Bear Creek Haiku

.. p.s. Got Time? A friendly warning from the f/k/a Gang: I’ve again learned an important lesson this week. To wit, unless you’ve got nothing to do but hang out in a pasture chewing your cud, there are two weblogs you need to avoid, Legal Blog Watch and Overlawyered.com. Bob and Carolyn at LBW and Walter and Fred Overlawyered simply stuff far too much interesting stuff into their blawgs every single day — finding the most intriguing law-related stories from across the internet. They’re much too distracting and titillating for anyone with a deadline or in a rush. And, if you’re trying to mend your procrastinatin’ ways, stay away from the above-mentioned sites (and from Simple Justice, too).

one button undone
in the clerk’s blouse I let her
steal my change

.. by George Swede – from Almost Unseen (Brooks Books, 2000)

The above post is a great example of how easily one can be led astray. I’m not usually fixated on jugs — being a “leg man,” who is lactose intolerant, and addicted to caffeine rather than alcohol — but, Walter pointed me to this story, as did Carolyn, and I was hooked, spending far too much time chasing down this story and its penumbra.

So, don’t say you weren’t warned. If you can only afford one dalliance at a time, you better stick with f/k/a and stay away from that very seductive pair of bloogs.

July 28, 2008

a big bow to Judge Hellerstein re contingency fees

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 2:13 pm

. . Thank you, Judge Alvin K. Hellerstein . .

In a post at Overlawyered.com, I learned this morning that Judge Hellerstein, of the Manhattan federal district court, refused last Thursday to approve a legal fee of $7 million for representing four Pentagon workers’ families, because it “would reflect a very large windfall,” given that the firm’s “entire strategy seems to have been to coast on the work of others.” The decision was part of the In Re September 11 Litigation proceedings and the firm was Maryland’s Azrael, Gann & Franz.

SlicingThePie See “Judge Overturns Accords in 4 Suits by 9/11 Victims” (New York Times, July 25, 2008); “Judge nixes ‘rich’ 9/11 deal” (New York Daily News, July 25, 2008); “Judge Blasts Md. Law Firm for Seeking ‘Windfall’ Fees in Sept. 11 Cases” (ABAJournalNews, July 25, 2008).

As Dan Slater reported at the WSJ Law Blog (July 25, 2008), “Here are some reasons why, according to Hellerstein:”

  • “[Jonathan Azrael] did not function in a liaison capacity.” noloShark
  • “Neither he nor any lawyer in his firm appeared, according to my memory, to argue any motion or present any pleading. He or another member of his firm attended most conferences, but rarely spoke.”
  • “Although the description of his services contains self-flattering statements of his contributions to the common effort, they are all conclusory and I have no perception of any contributions on his part.”
  • “Azrael’s entire strategy seems to have been to coast on the work of others, and to wait for last position before entering into any meaningful settlement discussions with respect to his clients. Azrael’s strategy made little contribution to the progress of the cases before me, or to the settlements that largely have resolved this litigation. . . And he sought, as well, to advantage his clients by leveraging on Motley Rice’s settlements.”

Bravo to Judge Hellerstein for refusing to automatically approve the Azrael fees and reminding the p/i bar of the principles to be applied to contingency fees. As we have long argued [at length, with many citations and links, in our essay “contingency fees: risk matters“]:

The reasonableness of a contingency fee in a particular case will depend on how much risk the lawyer assumed of working extensive hours and incurring expenses without adequate compensation, and how much skill and exertion it will take to perform the tasks involved. The validity of the fee arrangement will also depend on whether the client was adequately informed (given his or her level of sophistication and knowledge) of the relevant factors when negotiating the fee level with the lawyer. The necessary corollary is that applying a “standard” fee to each client [be it 25%, one-third, or more] without taking the degree of risk into account is unethical, because it will inevitably overcharge many clients. [For more detail, see our 4-part essay on the ethics of contingencies fees, including the importance of risk and the lawyer’s duties; and our post on related fiduciary duties.]

These principles are particularly relevant in the vast majority of personal injury cases that are not part of multi-plaintiff, very public litigation, but instead involve everyday cases with typical clients (e.g., car accidents, slip-n-falls, etc.) — the “bread and butter” of the typical p/i practice. Such cases are virtually never scrutinized by a judge and are ripe for over-reaching by lawyers and over-looking by disciplinary authorities.

So far, the only actual discussion of Judge Hellerstein’s decision in the “blawgisphere” has been in the Comment section of the posting “Judge Hellerstein Lambastes 9/11 Law Firm over Fee Request,” at the WSJ Law Blog (by Dan Slater, July 25, 2008). [but see July 29 update below] The WSJ comments contain many of the old excuses foisted on the public by p/i lawyers for their refusal to vary fees with the risk involved in a particular case. I will be keeping an eye peeled to see whether p/i lawyers and legal ethics experts will be mentioning, discussing and opining on Hellerstein’s action.

As in my post last December, “unconscionable silence over Graubard’s $42 million contingency fee,” re Graubard v. Miller, I’m afraid that the Contingency Fee Omerta rule will kick in (the One-Third-Third Rail), preventing and averting talk in public about the judge’s refusal to accept a 25% fee automatically [or even the 15% he was applying to other lawyers in the 9/11 Litigation]. Why? As I said in December:

Any discussion about the possible invalidity, unreasonableness, or unethical nature, due to inadequate risk [or work] in a particular case, of a [25% or] one-third or 40% fee charged to any particular client, presupposes that contingency fees are supposed to relate to the actual perceived risk in each separate case. It directly undermines the attitude of the p/i cartel that the existence of any risk justifies any percentage rate that is permitted in the jurisdiction, or any rate agreed-to by the client (absent, perhaps, actual fraud or felony on the lawyer’s part, or the extreme mental incompetence of the client). And, it particularly condemns the near-universal practice of presenting as a fait accompli a “standard” percentage rate to virtually every client — a rate that is usually the maximum permitted in the State absent special judicial consent to go higher.

This is another instance when I would love to be pleasantly surprised by my brethren at the Bar.

p.s. As I said in a comment at the WSJ Law Blog: This is not a “Tort Reform” issue (which limits the ability to sue or the amount of damages) as much as a Legal Ethics and Client’s Rights issue (assuring that the client gets all he deserves from the damages awarded, and the lawyer only takes what he deserves). If the Azrael firm succeeded in obtaining a larger award than other firms, it should be compensated by getting a fair percentage of that larger award, not by taking an unreasonably large share of it.

update (July 29, 2008):  When trying to find online discussion of this case yesterday, I missed Carolyn Elefant’s posting “Judge Overturns 9/11 Settlements” (Legal Blog Watch, July 25, 2008).  Carolyn questions Judge Hellerstein’s reasoning, saying:

“Huh?  How can the lawyers have coasted on the work of others, if they managed to achieve settlements well in excess of similar cases?  The judge’s ruling seems internally inconsistent.  While I agree that it’s appropriate to cut contingency fees to reflect a firm’s reduced risk in bringing a case forward, any reduced risk that Azrael may have achieved while waiting to file its clients’ claims was counterbalanced by the extraordinary results that the firm obtained presumably as a result of holding out.  Why should the firm be penalized?”

My response to Carolyn is something like this:

Risk is by far the primary factor in determining the reasonableness of a contingency fee.  By filing late in this 9/11 Proceeding, the Azrael firm removed at least three of the primary risks when taking a p/i case: Are we going to win a significant amount of money for the client? Will the “defendant” have deep enough pockets so that we can expect to collect? And, are we likely to have to do major amounts of work (motions, pleadings, trial prep, etc.) in order to prove our case and secure an award?

Therefore, if 25% was the maximum permitted in these cases, Azrael should have asked for a number significantly less than that from the start.  Even the 15% contingency fee allowed most of the other firms seems high, compared to the limited risk involved, but 15% should have been the ceiling.  Remember, the risk is what justifies asking for a fee that is significantly higher than a reasonable hourly rate.  (Which reminds me: Once you know you have a valid 9/11 plaintiff, with a healthy payout guaranteed, why is any fee other than an hourly or flat fee justified other than habit and the p/i bar’s refusal to offer clients the ethical option of different fee structures?)  When setting a reasonable hourly rate, the firm’s experience and superior skills certainly allows it to charge more than the hourly rate of less talented lawyers, but wouldn’t normally permit it to double the customary rate nor ask for a bonus the size of the one sought here.

In general with contingency fees, the ability to get a bigger award for you client is compensated by taking a fair share of the bigger award.  The lawyer is not the client’s partner in a business enterprise; he is a skilled worker helping the client to get a good result.

For example, if Azrael got twice as much for a particular client as most plaintiffs were getting — say $3.5 rather than $7 million — a 15% contingency fee would be $1,050,000, which is $525,000 more than the typical lawyer handling a comparable client [15% of the typical $3.5 million award is $525,000].

Isn’t half a million dollars enough of a skill-and-strategy bonus for this law firm for the amount of services performed and risk taken? If, instead the firm takes 25% of the full $7 million, its $1,750,000 fee would be three times as much (well over a million dollars more) than the typical firm in this proceeding received for representing a comparable client.  That eats away an awful lot of the improved award accomplished for the client.  Who deserves that extra million dollars, the client whose injury is the whole basis of the enterprise, or the lawyer, who was taking very little risk and apparently did very little work?  In addition, we don’t even know if it was procrastination or some other unimpressive factor (the clients’ delay), rather than strategy that caused the late entry into this case.  There is nothing illogical or inconsistent with Judge Hellerstein saying both that the awards seem too large and the fees seem excessive.

noloShark followup (August 28, 2010): “NY judge blocks interest in Sept. 11 litigation” (Associated Press, by Tom Hays, August 28, 2010); and  “Already Under Fire, Lawyers for 9/11 Workers Are Ordered to Justify Some Fees” (New York Times, Aug. 27, 2010).  The AP story reports that, on August 27, Judge Hellerstsein “barred lawyers representing Sept. 11 responders exposed to World Trade Center dust from billing them $6.1 million in financing fees for the litigation, saying their fees are already ‘too much’.”  The Judge told the firms Worby Groner Edelman and Napoli Bern Ripka “In the context of $150 million, I believe you can absorb $6 million,” and “What you’re getting is too much.”  AP notes that:

“[T]he lawyers took two law professors to court to tell the judge that the arrangement was legal and ethical.  The attorneys also argued they were already making concessions: Under a compromise reached in a revised settlement, they were taking a 25 percent cut of the deal rather than the usual 33 percent.

“But the judge wasn’t swayed. ‘Beyond legality and beyond ethics, it’s important to have a sense of balance,’ the judge said.”

One of the lawyers, William Groner whined that the judge had ruled against them “for no other reason than it’s 9/11.”  I would like to hope that, thanks to Judge Hellerstein’s example, cases with a lower profile will also get similar scrutiny from state and federal judges.

our August 2008 haiga calendars

Filed under: Haiga or Haibun,Haiku or Senryu — David Giacalone @ 8:46 am

July rains and wanes, and it’s time to remind you that we’ve created two haiga calendar pages for August 2008 for your use and enjoyment. Below are sample-sized calendar pages for August from both of our free 2008 haiga calendars — the artsy Giacalone Bros. Haiga Calendar 2008 and the nostalgic fka Haiga Memories Calendar 2008.  See our prior post from last December for descriptions and links of the free 12-month calendars. (FYI: Haiga are pictures — paintings, sketches, photos —  combined with a subtly-linked haiku or similar poem.)

Just click on the sample calendar pages below to go to a printable full-size version. A link is also provided to a larger version of each of the original haiga used for the calendars.

– from the 2008 Giacalone Haiga Calendar

[full-sized for printing]

a blue tongue
and a red mustache –
trading snow cones

poem: David Giacalone -orig. pub. Frogpond (Winter 2008)

photo: Arthur Giacalone

– larger orig. haiga – also posted at MagnaPoets JF, in b&w (July 27, 2007)

And, from the 2008 f/k/a Haiga Memories Calendar

full-sized for printing –

the lifeboat
suddenly too small —
his guilty face

Poem: David Giacalone

Photo: MAMA G (1952)

[original haiga, Magnapoets JF, April 24, 2007]

July 27, 2008

listening to our post-oil prophet James Howard Kunstler

Filed under: Haiku or Senryu,q.s. quickies,Schenectady Synecdoche — David Giacalone @ 11:34 am

.. microphoneF . . If you’re interested in insightful and lively commentary on the history and future of suburbia and urban development in America, and the likely effects on our way of life of $4/gal. gasoline, head over to James Howard Kunstler‘s new website, The KunstlerCast — “a weekly audio program about the tragic comedy of suburban sprawl.” The site has offered weekly podcasts since Feb. 18, 2008 (with the inaugural podcast titled “Drugstores”). At KunstlerCast, Jim suggests that newcomers get acclimated with installments #8 (“The Glossary of Nowhere”), #6 (“Children of the Burbs”), and #10 (“Zoning”). Don’t fear that he might be too enmeshed in prophetic gloom-and-doom. As the Albany Times Union noted last March:

“When all hell breaks loose after the oil runs out and the military-industrial complex grinds to a halt, Kunstler will be the one rosining up the bow, cracking jokes, grinning broadly and intoning his signature phrase: ‘It’s all good!”’

For fellow podriahs, who still prefer to use eyeballs rather than ears when acquiring information or scanning web content, you’ll also find KunstlerCast Transcripts (currently with about a month delay). See, e.g., the transcript to the installment “Glossary of Nowhere.”

half a tank —
Old Glory in tatters
above the gas pump

… by dagosan (Oct. 13, 2005; hat tip to elizabeth macfarland)

From his nonfiction landmark “The Geography of Nowhere: The Rise and Decline of America’s Man-Made Landscape” in 1993, through “The Long Emergency: Surviving the End of Oil, Climate Change, and Other Converging Catastrophes of the Twenty-First Century” (2006), to his latest novel, “World Made by Hand” (2008), author (and painter) Jim Kunstler has been explaining what’s wrong with America’s sprawling suburbs and depdence on fossil-fuels, and suggesting solutions.

Kunstler was surely right when he warned in 1993, in The Geography of Nowhere, that:

“The newspaper headlines may shout about global warming, extinctions of living species, the devastations of rain forests, and other world-wide catastrophes, but Americans evince a striking complacency when it comes to their everyday environment and the growing calamity that it represents.”

But, he was also correct when he said:

“I believe a lot of people share my feelings about the tragic landscape of highway strips, parking lots, housing tracts, mega-malls, junked cities, and ravaged countryside that makes up the everyday environment where most Americans live and work.”

Jim Kunstler lives in Saratoga Springs, here in the New York Capital Region. The Schenectady Sunday Gazette ran an interview with him today, that will give you a good feel for Kunstler’s notions about what will and won’t work in America as we face dwindling supplies of fossil fuels and very expensive oil. “James Kunstler insists suburbs are done for” (July 27, 2008) Here’s a good sample Q&A:

Q: Where do you see things going in terms of the housing market? Will America abandon the suburbs in favor of the cities?

A: A lot of people (Realtors, builders, bankers) are waiting for the “bottom” of the housing crash, with the idea that we’ll re-enter an up-cycle. I see it differently. There won’t be a resumption of “growth” as we’ve known it, certainly not in suburban residential and commercial real estate. The suburban project is over. We’re done with that. (I know people find this unbelievable.) The existing stuff will represent a huge liability for us for decades to come as it loses value and utility and falls apart.

However, I also believe our big cities will contract. They are simply not scaled to the energy realities of the future. The successful places, in my opinion, will be the smaller cities and towns that 1.) have walkable neighborhoods, 2.) have proximity to water for power, transport and drinking, and 3.) have a meaningful relationship with a productive agricultural hinterland. Some places you can forget about completely: Phoenix . . . Las Vegas . . . they’re toast.

That’s about enough from me this sunny Sunday in Schenectady. I’m going to get out and enjoy my lovely, walkable neighborhood along the Mohawk, or maybe take a short drive to our agricultural hinterland.

early morning cool
men in hard hats gather
on the last patch of grass

……. by Randy Brooks – the loose thread: rma 2001; Modern Haiku XXXII:1

long wait alone
in the parking lot. . .
a dog in the next car

….. by Tom Clausen – being there (Swamp Press, 2005)

traffic jam
my small son asks
who made God

… by peggy willis lyles – To Hear the Rain (2002)

on the bridge
hundreds died to defend
end-to-end graffiti

…… by George Swede – Acorn #17 (2006)

corporate parking lot
another starling
settles on the power line

….. by Yu Chang – Upstate Dim Sum (2005/I)

p.s. Just as Jim Kunstler is a prophet ahead of his time, master-debater Scott Greenfield at Simple Justice is the premature host of Blawg Review #170, which he posted this morning rather than waiting ’til Monday. As the only colleague who encouraged him not to weigh down his turn as host of Blawg Review with an clumsy, annoying theme, I take some solace in reporting that Scott used such a light hand presenting his compilation of the best lawyer-blog posting of the past week (purportedly tied together by the 14th Amendment) that it seemed both seamless and themeless. As usual, you’ll find Scott’s mischievous brand of humor throughout his post, plus pointers to a lot of good blawgging (and purloined photo of the Giacalone Boys from 1971).

July 26, 2008

email etiquette: use Bcc for groups, please

Filed under: viewpoint — David Giacalone @ 8:51 pm

black envelope Twice this past week, an otherwise-thoughtful person sent an email to me and dozens of other people, putting all of our names in the “To” field. Like many of you reading this now, neither Sender stopped to think that they were invading the privacy of recipients who did not want to share their email addresses with one or more of the other addressees — and who rightly want to make that choice for themselves. Even worse, because the Senders requested or expected the messages to be forwarded to many others, they set the stage for much broader privacy invasion and unwanted spamming. (In addition, they created a great risk of swamped In-Boxes by asking recipients to “Reply to All” and not just to the sender).

After trying to diplomatically explain this problem to many correspondents over the past decade using return email, I’ve finally remembered that I have this little soapbox for exposing and explaining (kvetching and correcting).

Summary: (explanations and instructions below):

  • Sending Original Email: Do not send an email message to a group of persons by putting their names in the “To” field unless you are certain that each recipient has already shared his or her email address with every other recipient and will not forward their addresses to others. Instead, use the Bcc field [from “background/blind carbon copy”]. Each recipient will receive a personally-addressed Bcc copy, with the email address shielded from the other recipients.
  • Forwarding: If you are going to forward an email that has the addresses of prior recipients in it (the address is there, even if you only see the name on the To or Cc line), first remove all prior email addresses. [Yes, you can delete anything that you see in your email window, the same way you delete any text in a document.]

– share this email with this short URL: http://tinyurl.com/BccGroups


Lucky for all of us, Judith Kallos has thought about this netiquette problem, and hundreds thousands of others, and shares her knowledge with clear and lively prose, at NetManners.com, plus two weblogs [E-mail Etiquette Matters and the Business Etiquette Blog], as well as in several books. Her goal: “Using Technology to Communicate with Knowledge, Understanding and Courtesy!”

Therefore, rather than my turgidly judgmental preaching, here are some of Judith Kallos’s lessons for those who answer “yes” to the question: Do you send or forward emails with everyone’s email address in the To: field?

Email Etiquette Info Courtesy of NetManners.com

Her Essay “Courtesy #1” offers the minimal online basics you need to know “in order to be taken seriously in your online communications,” and advises:


July 25, 2008

big boo for botoxed bridesmaids

Filed under: Haiku or Senryu,viewpoint — David Giacalone @ 1:35 pm

Like any normal American male, I often find myself both amused and appalled by the Fashion & Style Section of the New York Times. Appalled — and apprehensive over the state of our nation’s soul — was my main reaction to yesterday’s article titled “It’s Botox for you Dear Bridesmaids” (by Abby Ellin, July 24, 2008). In the piece, we meet bride-to-be Kacey Knauer, for whom “cosmetic interventions for herself and her entourage are as vital as the centerpieces or food.”

With help from an aesthetician, Kacey and many other women planning their weddings are now adding treatment plans for bridesmaids — “a quick chemical peel, say, or an injection of a wrinkle-filler,” or perhaps a series of Fraxel laser treatments over months [which “could set you back $1,200 a session”]. Over months? Yep:

“[Camille] Meyer of TriBeCa MedSpa suggests that a bride contact her the minute the question is popped. ‘ . . . If you have to do eight treatments, six weeks apart, that could take up to a year, she said.” And,

“It is no longer sufficient to hire a hairstylist and makeup artist to be on hand the day of. Instead, bridal parties are indulging in dermal fillers and tooth-whitening months before the Big Day.”

Okay, I admit that I’m a little bit touchy about this subject, and have been since certain female relatives strongly suggested that my brother and I needed to get haircuts for our sister’s wedding back in 1971. We both declined and were said by some to have “ruined your sister’s wedding photos.” [see their proffered proof at the head and foot of this posting] That little incident, combined with my natural distaste for ostentatious expenditures of money in the vain hope of creating a “perfect wedding” for the bride, plus many tales of chubby or pimply cousins left out of bridal parties, make me shudder to know that:

  • “Dr. Fardad Forouzanpour, a cosmetic surgeon in Beverly Hills, Calif., said his business has increased more than 40 percent since he began offering what he calls Bridal Beauty Buffets in 2006.” And,
  • “In the last two years, bridal party tuneups have increased roughly 25 percent, estimated Susie Ellis, the president of SpaFinder.com, a site that lists 4,500 spas worldwide.”

Even worse, it’s the over-30 brides (and grooms) — who simply should have better priorities — who are leading this new trend, as they are most likely to have wrinkly girlfriends and mothers. Happily, the NYT article informs us :

  • “But for every accommodating pal, there’s another who feels going under the knife is beyond the duty of bridesmaid. Becky Lee, 39, a Manhattan photographer, declined when a friend asked her — and five other attendants — to have their breasts enhanced.” And,
  • “A bride’s request that you whiten your grayish teeth can strain a relationship.”

Of course, the Times writer has cogent advice: “And how does a bride break it to a mother-in-law that she’d love her crow’s feet to be frozen into submission? Very delicately.” You can draw your own conclusions about this new trend in wedding-party beautification. Sadly, it looks like neither Issa nor I will be invited to be best man, or to give away a bride, at any posh weddings this year.

shielding a wrinkled
paper fan of Edo

comparing my wrinkles
with the pickled plums…
first winter rain

looking up, wrinkles
looking down, wrinkles…
a cold night

tired of walking
my wrinkled arm
the flea jumps

lightning flash–
no way to hide
the wrinkles

by the maiden flower…
my wrinkled foot

the night spent looking
at my wrinkled hands…
autumn rain

………….. by Kobayashi Issa, translated by David G. Lanoue




rain on
my bald spot —
recalling dry-scalp Aprils


. . . . . david giacalone – Magnapoets JF
poem – Haiku Harvest (Spring 2006, Vol. 6 No. 1)


wedding rehearsal
she models her new
cup size

ceremony over
the bride unveils
her tattoo

… by roberta beary – Simply Haiku (Winter 2005)

hazy harvest moon
the face I met
when our skin was smooth

………. by David Giacalone – The Heron’s Nest (Vol. IX: 4, Dec. 2007)
Happy 60th Anniversary to Mama and Papa Giacalone –

. . . . . . .

Everywhere I Look
by Roberta Beary

products promise me younger looking skin now that sixty
is the new forty in a world where no one grows old
movie stars with wrinkles look so last century

purple bouquet
it looked so good
in the store

– haibun from Frogpond, Vol. 31:2 (Spring/Summer 2008) –

. . . . . .


junk drawer
under a pile of tangled laces
our wedding portrait

…………. by ed markowski

Linda & Brian marry (April, 1971), without an aesthetician intervention. Naturally, the bride did not need one.


July 24, 2008

video of the Chautauqua Baseball Haiku Roundtable

Filed under: haijin-haikai news,Haiku or Senryu — David Giacalone @ 11:38 am

. . Baseball Haiku at Chautauqua, June 26, 2008 . .

see the 49-minute Roundtable on video at FORA.tv

Has your game been rained out? Have storms or floods forced you indoors, too? Are you looking for a family- or workplace- safe video to watch at your computer this afternoon? Well, I suggest the 49-minute video of the Base Haiku Roundtable, from the Chautauqua Institution (June 26, 2008), available free online from FORA.tv.

I just discovered FORA.tv today (thanks to Ed Markowski), and it is a Prolific Playground for the Pensive Procrastinator. As they say on their About page:

FORA.tv delivers discourse, discussions and debates on the world’s most interesting political, social and cultural issues, and enables viewers to join the conversation. It provides deep, unfiltered content, tools for self-expression and a place for the interactive community to gather online.

After you’ve watched the Baseball Haiku video, savor some of the poems again, with this reprise from our June 28th recap of the Roundtable:

summer loneliness . . .
dropping the pop up
i toss to myself

… by Ed Markowski – Baseball Haiku (2007); pop up (tribe press, 2004)

biking to the field
under a cloudless sky
my glove on the handlebars

…. by Cor van den Heuvel – Baseball Haiku (2007) and Play Ball (Red Moon Press 1999)

at the produce stand
a kid with a baseball
plays catch with the awning

…. by Al Pizzarelli – from Baseball Haiku (2007); The Windswept Corner (2005)

rainy night
a hole in the radio
where a ballgame should be

…. by Ed MarkowskiBaseball Haiku (2007); Games (2004)

Cor & Ed at the Roundtable (by Sara Etten)

through the blue sky
the tape-wrapped baseball trails
a black streamer

conference on the mound
the pitcher looks down
at the ball in his hand

..… by Cor van den Heuvel, from Baseball Haiku (2007) and Play Ball (Red Moon Press 1999)

late innings
the shortstop backpedals
into fireflies

summer haze infielderG
i pick off
the invisible man on first

“red hots!”
for an instant i’m ten
father’s still alive

April rain
my grandson practices
his infield chatter

………………………. by ed markowskiBaseball Haiku (2007)

game over
all the empty seats
turn blue


at shortstop
between innings
sparrows dust-bathing

the score keeper
peeks out of the scoreboard
spring rain


.. by Al Pizzarelli – from Baseball Haiku (2007)
“score keeper” – The Windswept Corner (2005)
“at shortstop” – Past Time (1999)

One more reminder to check out Ed Markowski’s free online brochure, “American Sports . . . American Haiku” (June 2008; cover), which has two dozen sports haiku and senryu that were compiled to celebrate the Sport in America week at Chautauqua.

July 23, 2008

making frivolous lawyers pay

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 4:13 pm

It’s been three years since I posted this quote — in a piece called “counsellor or mercenary?” — from Sol Linowitz‘s book The Betrayed Profession (Scribners, 1999; the passage is also found in the June 1999 issue of DCBA Brief):

SolLinowitz “Elihu Root . . . put the matter more simply: ‘About half the practice of a decent lawyer,’ he once said, ‘consists in telling would-be clients that they are damned fools and should stop.’

“Today there are too few lawyers who see it as part of their function to tell clients (especially new clients) that they are damned fools and should stop: Any such statement would interfere with the marketing program. The public pays, because the rule of law is diminished.“

Later in the same chapter, titled “Living the Law,” Linowitz notes:

“The doctrine that professionalism means respect for the client’s ‘autonomy’ and commands doing whatever the client wants is, after all, most convenient. Nobody ever lost a client by doing exactly what the fellow wanted, but much lucrative legal work has been sacrificed by lawyers who regretfully told prospective clients that this was something they were not willing to do.”


Sol’s words and quotations came to mind today, when I saw the Law.com article “Law Firms Held Liable for Fees in ‘Tissue of Lies’ Patent Suit” (New York Law Journal, July 23, 2008). Anthony Lin’s piece begins:

NoYabutsSN “A federal judge has ordered a patent holder and his lawyers to pay attorney fees for bringing an infringement suit based on ‘nothing more than a tissue of lies’.

Irving Bauer had sued Romag Fasteners Inc., a manufacturer of magnetic snap closures for handbags, for infringing a 1996 patent on a new type of closure he claimed to have invented.

Last week, in Advanced Magnetic Closures Inc. v. Rome Fastener Sales Corp., 98 Civ. 7766, Judge Paul A. Crotty of the Southern District of New York invalidated Irving Bauer’s patent (for magnetic snap closures for handbags), finding that Bauer’s testimony about his inventorship “bore clear indicia of fabrication,” and adding that he was “convinced beyond a shadow of a doubt” that Bauer was no inventor.

Here’s the part of the article that most interested me:

“The judge held New York law firm Abelman, Frayne & Schwab, which initially represented Bauer in his suit against Romag, jointly and severally liable for Romag’s attorney fees after Feb. 11, 2006. That was the earliest date, the judge said, Abelman Frayne should have realized expert testimony the firm planned to use to support Bauer’s claim had been contradicted by testing.

‘By persisting with this claim to trial, Abelman counsel played a central role in so unreasonably and unnecessarily multiplying the proceedings so as to give rise to bad faith litigation,’ the judge said.

Bauer replaced the Abelman firm in August 2007 with David Jaroslawicz of Jaroslawicz & Jaros. The judge held Mr. Jaroslawicz jointly and severally liable for Romag’s costs after Oct. 5, 2007, finding he also should have been aware of the deficiencies of Bauer’s claims.”

Romag’s lawyer, Norman Zivin of Cooper & Dunham in New York, said he had previously requested around $1.2 million in attorney fees, though he said the judge would likely modify that amount.

just say no Judge Crotty’s willingness to hold the lawyers responsible for their opponents’ fees is a welcome change from my last direct experience with frivolousness petitions in 1990 (see my war story for some of the facts). At that time, I specifically asked that opposing counsel be liable for fees after bringing a frivolous claim against my client (which was contrary to the existing police vehicle accident report and their own client’s guilty plea to vehicular manslaughter), and then continuing to maintain the claim for four years, despite expert reports and legal memoranda making it clear they had no valid basis for a claim. [Remember, “frivolous” does not simply mean without merit, it means “without a reasonable basis in fact or law.” See, e.g., Model Rule 3.1]

At the time, opposing counsel were outraged that I would ask that they be held responsible. The judge granted my motion for fees, saying that commencing the action was “irresponsible and frivolous,” and the failure to discontinue it compounded their bad faith. Nonetheless, he directed that the client corporation and individual pay our fees and costs, without even mentioning my request concerning their lawyers.

Root and Linowitz are clearly right: It is the lawyer’s job to say no when a client wants to press a frivolous claim, or when the lawyer is tempted sua sponte to make a baseless claim in order to curry favor with a client. The mere fact that saying no might lose you a client, or anger one, is not a good enough reason to go along. Lawyers are gatekeepers, with important responsibilities to the courts and the public. Seeing that Bauer’s lawyers might have to pay $1 million in fees should have a major deterrent effect on the rest of the Bar. It should.

The sole poem that I posted three years ago today gives me another idea for deterring cases like Bauer-Romaq:

in the misty day
no window can be seen…
a prison


……. by Kobayashi ISSA, translated by D.G. Lanoue

This one from one year ago today suggests another party we might want to intervene when confronted with such a “tissue of lies:”

thunder . . . erasingS
little leaguers chatter

……………………. by Randy BrooksBaseball Haiku (2007)

These don’t seem to be related in law or fact, but are worth reprising from July 23, 2007:

mountain butterfly
from her boulder
to mine

moonrise . . .
cattle single file through
the narrow pasture gate

early morning cool
men in hard hats gather
on the last patch of grass

tongue out
the boy guides a new airplane
round and round

……………………. by Randy Brooks
“early morning cool” – the loose thread: rma 2001; Modern Haiku XXXII:1;
“moonrise . . .” – the loose thread: rma 2001; tundra 2
“mountain butterfly” – a glimpse of red: RMA 2000; Modern Haiku XXXI:2

July 21, 2008

grinning chimps, hot stocks and hotham

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 10:59 pm

Chimp Abuse? Did you see the op/ed piece by Steve Ross in today’s New York Times, titled “Chimps Aren’t Chumps” (July 21, 2008)? He wants an end to the use of cute chimpanzees on greetings cards and in ads and marketing — such as “the exaggerated grin on the face of a young chimpanzee, often one that’s wearing sunglasses or a grass skirt.” Ross, the supervisor of behavioral and cognitive research at the Lester Fisher Center for the Study and Conservation of Apes at the Lincoln Park Zoo, says of the grinning chimp:

“But this picture, harmless as it might appear, is giving the public the mistaken and even dangerous impression that chimpanzees have a safe and comfortable existence — and nothing could be further from the truth.” And,

“A progressive society should weigh the moral costs and benefits of practices like these. Misrepresentations of chimpanzees may not be as repugnant as racism, bigotry or sexism. But they can still serve as a benchmark for our society’s moral progress.”

“. . . The good news is that a growing number of companies, including Honda, Puma and Subaru, have pledged to stop the use of primates in advertisements.”

Yikes. I’m sorry Dr. Ross, but there are far too many important things to worry about on this planet of ours to fret over “misrepresented” chimpanzees. I can’t take your argument seriously enough to work up a cogent response. (Ditto for the post at Animal Person yesterday “On Speciesism and Animal Actors.”) But, I will say that it has never crossed my mind that pictures of cute pandas, peaceful dolphins or grinning chimpanzees meant their species were all thriving and safe — and I can’t imagine why you’d think [reasonably thoughtful] members of our species would have that illogical reaction.

evening loon call —
nothing makes it
call again

.. by Gary Hotham – from Missed Appointment (Lilliput Review, Modest Proposal Chapbooks 2007)

I’m pleased, however, that Ross’ piece got me to Google my favorite childhood chimp, Cheeta, to see how he’s doing. In 2006, I wished the co-star of a dozen Tarzan movies, and oldest living nonhuman primate, a happy 74th birthday. Today, I want to congratulate Cheeta (that’s him at the head of this paragraph and of this posting) for getting a star on the Hollywood Walk Of Fame earlier this month. (See The Mirror.co.uk, August 7, 2008). And, we can celebrate Cheeta’s latest comeback, at 76 — appearing in a new video of the hit country music song “Convoy,” which can be downloaded from iTunes.

window window–
the child pressing against
the rain

flashing ambulance lights–
rain still filling
every puddle

…… by Gary Hotham – Missed Appointment

Greenfield’s Bullish on Tasers: We don’t usually look to criminal lawyer Scott Greenfield of the Simple Justice weblog for investment tips. But, today we find Scott touting Taser International (July 21, 2008).

“As the stories of police using tasers in lieu of thinking become legion, there can be only one smart move: invest. Jonathon Turley posts about the latest taser target: [a blind Ohio woman with cancer)]”

It seems to me, however, that private citizens, not law enforcement, are going to fuel the growth in Taser sales over the next few years — and that scares me more than the continuing Taser abuse by police. Some real stock experts agree (see “Taser misfires but Still Has Potential,” The Street.com, by Tom Au, April 16, 2007):

“Electric stun-gun maker Taser International(TASR – Cramer’s Take – Stockpickr) seems more of a venture capital play than a conventional stock play on the basis of company’s recent earnings and news.”

That’s because:

“Taser is also planning to shift its marketing strategy, following the strong reception its new pocket-sized C2 personal protector received at January’s Consumer Electronics Show and the resulting favorable media coverage. The company now hopes to sell more of its products, including the C2, to individual consumers as well as to members of the ‘self defense’ and private security markets rather than law enforcement agencies.”

. . . “[I]n the wake of its earnings report, the company may appeal more to those of a venture capitalist bent than the private investor, which is why my position is smaller than usual. Taser has a bunch of scientifically innovative products that potentially address a major need: preventing more Virginia Tech (and smaller-scale) shootings. Depending on societal acceptance, the market could be huge.” “

Yes, it’s shocking. One online seller of Tasers declares:

The TASER can be used more effectively and safely with less training than other self-defense technologies.


TASER devices are not considered firearms. They can be legally carried (concealed or open) without permit required in 43 states.

Indeed, “The TASER X26C series [available for $999.99] offers the highest take-down power available. With advanced new Shaped Pulse technology, the TASER X26C provides Electro-Muscular Disruption (EMD) technology which . . . debilitates the toughest targets, without causing injury or lasting after-effects.” Still not convinced Taser is for you and those you love? Remember:

“TASER technology has been available to citizens concerned with self-defense for over a decade. Unlike conventional weapons, TASER is effective with a hit anywhere on the body. To be effective for self-defense, bullets risk more lethal consequences, striking the head or vital organs. Similarly, chemical or pepper sprays must hit an assailant in the face � a much less reliable alternative in fast moving confrontations. And, in a windy environment, sprays can be blown back onto the user.”

For now, I’m glad to be living in New York, as “TASER is not available for private citizen defense in DC, HI, MA, MI, NJ, NY, RI, & WI.” But, recent Supreme Court action on the 2nd Amendment suggests they’ll soon be available legally everywhere. So, as Scott says: “there can be only one smart move: invest [in Taser]” — and never leave home.


Enough monkey business ’round here. How about a few more selections from Missed Appointment by Gary Hotham?

snow covering things
we see every day —
the fortune left in the cookie

farewell dinner–
more hot coffee poured
into what’s left

long after sunset–
darkness not stopping the odor
of fallen leaves

…… by Gary Hotham – Missed Appointment (Lilliput Review, Modest Proposal Chapbooks 2007)

doubts over debt negotiation fees

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 1:29 pm

follow-up (June 19, 2010): See today’s New York Times article, “Peddling Relief, Industry Puts Debtors in a Deeper Hole” (reg. needed)

Our mention last month of an upcoming FTC Debt Settlement Workshop attracted some “comment spam” from NetDebt, a for-profit company that “negotiates” with creditors in an attempt to reduce your overall debt. NetDebt calls itself a “100% online debt settlement solution” and emphasizes the participation of lawyers in providing its services (nonetheless, you apparently never meet your lawyers). They claim that “In some cases, your total debt will be cut in half.”

I first heard of NetDebt on June 9th, when they tried to plant a link from f/k/a to their affiliated weblog, in order to increase NetDebt’s online profile. When the Comment showed up for “moderation,” my response was: “I just looked at your ‘NetDebt’ web site and have many questions about your services — especially the fees. Until I get a chance to review it more fully, I do not want a link from this weblog to yours, and have removed your URL.”

Having now looked more deeply into NetDebt, I want to present my continuing concerns about their fees — which are 15% of the amount of debt you bring to their program (regardless of results or the number of creditors it must deal with), plus a “small” monthly service fee of $50.

For example, the so-called “flat” 15 % fee would be $1500 if you have $10,000 of debt in the program; $3000 for $20,000 of debt; $6000 in fees for a $40,000 debt load. The $50 monthly service fee quickly adds up, too, and would add another $2700, if you stay in their program the full 54 months.)

Although many debt negotiators make no mention of the cost of their services at their websites, it appears that similar percentage-based fees have become common among debt settlement firms. (See, for example here and there) update (July 25, 2008): As discussed below, in response to this posting, Charles Phelan has written an extensive”History of Debt Settlement Fees” at The ZipDebt Blog (July 25, 2008).

Despite the traditional lawyer reluctance to talk about excessive fees, I hope that legal ethics counsel or professors, other lawyers, and consumer advocates will help us determine if or when such fees are “reasonable” or appropriate for lawyers to charge. At a time when many in the legal profession are promoting the use of “alternative” and “value-based” fees instead of hourly billing — while offering so little guidance on how to make the switch in an ethically-responsible manner — it would be especially useful to hear what standards or criteria they believe should be applied to prevent excessive fees under our professional and fiduciary principles. My assumption is that “what the market may bear” is not an appropriate test for protecting consumers — especially unsophisticated ones in dire economic straits — from unreasonably high legal fees. [Consumers can get some tips for protecting themselves in our post “understanding and reducing attorney fees“.]

There are many voices on the internet warning about “debt settlement scams” and the money wasted due to the high fees. [For example, this post at the ZipDebt Blog, and this article.] An article from SmartMoney.com, “Debt Settlement Could Cost More Than You Think” (June 20, 2007), gives an excellent summary. SmartMoney says, “Debt settlement is, in fact, a perfectly legal solution for consumers who are in deep and seeking an alternative to bankruptcy. But having a debt-settlement company do the legwork for you is fraught with risk, not to mention outrageous fees.”

Still, unless the purveyors are engaged in actual fraud or deception, regulators can’t do much about non-lawyers charging excessive fees for a questionable service that exploits desperate people, beyond providing information and warnings. However, the legal profession can hold lawyers to a higher standard and should require lawyers engaged in debt settlement to charge only reasonable fees. As with many similar easy-money schemes, my guess is that the services would not be offered by members of the Bar, if only a fair price could be charged.


July 19, 2008

more hot air relief

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 11:37 am

It’s Saturday, it’s sultry, it’s superb hammock season, so don’t expect lengthy punditry today from the f/k/a Gang — and don’t expect us to come over to cut your lawn. Here are a few quickies for those attached to their computers this weekend and needing some breathless diversion.

at the bus stop
our backs to the wind
the sunrise changes color

… by gary hothambreathmarks: haiku to read in the dark

[go here for more of our wind haiku]

donkey flip . .

brand this! Over at Ed’s Blawg Review, I see that Blawg Review #169 will be hosted on Monday, July 21, by Whisper, a weblog about brand strategy (which, honest, they call B.S.) — and which is “founded on one big idea: ‘The key to any effective marketing, branding or advertising effort is to change and take ownership of the conversation’.” For a contrarian perspective on branding and lawyers (that continues to believe clients are king and should own the conversation, while lawyers are mere shield-bearing esquires), you might want to check out a few posts from the early days of ethicalEsq:

  • Brand LEX” (April 3, 2004) “None of this is reassuring or inspiring — earning your client’s trust so that you can charge him and her more. Rather non-fiducial, don’t you think?
  • Another Lap Around Law Firm Branding” (April 11, 2004) “How does the law client benefit from this expensive branding campaign? Is getting “a friend” who shares your love of motor-racing advantageous to the “upset” personal injury client? The DUI defendant?”
  • lawyers and cashews (and premium pricing)” (June 9, 2006) “Fiduciaries don’t manipulate clients to reduce their price sensitivity. Period.”

update (July 21, 2008): For a good list of last week’s best blawg posts, see the thoughtful Blawg Review #169 at Whisper, where f/k/a got two pointers and a nice compliment, despite our curmudgeonly stance on law firm branding. To their query of how this baby boomer “gets all the energy for his creative poetry and erudite punditry,” I can only offer these tips: Borrow lots of haiku from your friends; take lot of naps; don’t have much of a life.

she comes back–
the ocean drips off
every part of her

…………… by gary hothambreathmarks

Environmental Inspiration: Read “Visionary of the Visayan Sea” (Harvard Law Bulletin, Summer 2008), to learn about the decades of work (often despite physical danger) by Philippine lawyer Antonio Oposa, fighting to protect marine habitat. In 1993, he helped win the right to sue on behalf of future generations, in the case Minors Oposa v. Factoran, where the high court said:

“Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors’ assertion of their right to a sound environment constitutes, at the same time, the performance of their obligations to ensure the protection of that right for the generations to come.”

huge trees in the park–
a different dog
chasing the stick

… by gary hothamthe heron’s nest (April 2001)

Who’s A Narcissist? With the label being thrown around a lot lately, today’s New York Times looks at what it takes to be a true narcissist, “Here’s Looking at Me, Kid” (July 20, 2008) In case you didn’t already know:

“Many people are condescending and self-involved, but they may not necessarily be narcissistic. Therapists say that to affix the label, the trait or the diagnosis, one must spend considerable time with the person. Determining that someone is a narcissist, Professor Ames added, ‘is not something you can gauge from television’.”

the mirror
wiped clean
for a guest

………………… by John Stevenson from Quiet Enough (Red Moon Press, 2004)

open window
I polish a mirror
from my childhood home

……….. by peggy willis lylesFreeXpressSion, February 2007

white lie
the mirror doubles
the white chrysanthemum

………… Roberta Beary – from Fish in Love (2006)

don't forget What did we learn in Law School? Prof. Daryl Levinson won the Sacks-Freund Teaching Award this year at Harvard Law School. See “On accepting Sacks Freund Award, Levinson reminds students what they learned in law school” (June 12, 2008). Prof. Levinson says he appreciates “brilliant, demanding, opinionated, contrarian, and relentless” law students. In case they forgot what they had learned, Levinson offered a “review session” of the “ten ideas that explain virtually all of law.” Click that link to watch a webcast of Levinson’s Class Day remarks. The article tells us:

Levinson proceeded to help the graduates “recollect [the] three years of knowledge” they learned in law school. Joking that “class participation is how [we] stretch these few minutes of material out to three years,” he touched upon some of the major themes of the law, including rules vs. standards, collective action problems, and agency.

dead silence
the senior partner
has another senior moment

…. dagosan

July 18, 2008

sure could use a breeze

Filed under: Haiku or Senryu — David Giacalone @ 8:03 am

old dog and master
for the tiny spot of shade

rattle, whir, hum –
august night

. . . by dagosan
“old dog” – Legal Studies Forum XXIX:1 (2005)
“rattle, whir” – Nisqually Delta Review (summer/fall issue 2006)

Given the weather forecast for Schenectady, the f/k/a Gang will be seeking shade, air conditioning and breezes this weekend. As mentioned yesterday, we’ve collected nearly a hundred wind/breeze haiku for you, written by our talented family of Honored Guest Poets. Here are a few for those too listless to click the link:

a shut-off notice
flaps in the wind–

autumn wind —
a leaf and homeless man
cross paths

…………………… by Andrew Riutta
“a shut-off notice” – Shiki Monthly Kukai (Jan. 2006)

sultry breeze
she teaches me to whistle
with a blade of grass

………………………………… by ed markowski

wind-rippled pond –
bright whirligigs twirl
in all directions

. . . by Billie Wilson – Haiku Harvest (Spring 2001)

warm city wind
cherry blossoms filling
the potholes

ladybug descending
this windwhipt blade of grass
last blaze of sun

………….. by Pamela Miller Ness
“warm city wind” – Haiku Canada Newsletter XIII:3 (June 2000)
“ladybug descending” – Summerday, Puget Sound sequence

fierce wind
street sweeper has
another coffee

… by George Swede – from Almost Unseen (2000)

p.s. Cop Mugs Starbucks: Whether you take your coffee hot or iced this weekend, take the time to check out the story of a Daytona Beach police lieutenant who took free coffee for years (sometimes six times a day) from a Starbucks — and then threatened retaliation when the new shop manager refused any more freebies. Scott Greenfield covers it at Simple Justice in “Cop, Coffee and Crime” (July 18, 2008); and see Jonathan Turley’s “Don’t Tazerberry Me, Bro.” Scott reminds us that there’s nothing funny about this kind of police extortion., recalling the NYC Knapp Commission.

July 16, 2008

Cuomo tilts at pols and windmills

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 6:21 pm

With a New York State SEQR specialist and home-owner champion in the family (see prior post), I’ve heard a lot of stories over the past few years about local politicians who seemed far too amenable to the blandishments of industrial wind power companies and far too willing to ignore potential environmental effects of large wind-farms. Therefore, I was pleased to learn this morning that New York Attorney General Andrew Cuomo has opened an investigation into possible improper dealings between two wind power companies and local government officials, and into possible anticompetitive behavior by the firms.

See “Cuomo investigating alleged ‘dirty tricks’ in local windmill projects: Two WNY companies under investigation” (Buffalo News, by Maki Becker and Tom Precious July 16, 2008); “Wind Farms Face Investigation” (Wall Street Journal, July 16, 2008); “Wind farm deals under investigation” (Business First, July 14, 2008); and “Cuomo: Celebrate but Still Investigate Alternative Energy Sources,” (Legal Line News.com, July 16, 2008)

update: See “Wind power companies, Cuomo reach agreement,” The Buffalo News (Oct. 30, 2008); and “Amid Talk of Hidden Deals, Wind Firms Agree to Code of Conduct ” (New York Times, October 30, 2008), for details of a voluntary code of ethics promulgated by the AG’s Office to make wind deals more transparent. We discuss the voluntary code in the third section of this post, dated Nov. 8, 2008.

According to its July 15, 2008 press release, Cuomo’s office has received numerous complaints from private citizens and public officials in eight counties alleging “improper relations between the companies and local officials” and other questionable practices. The allegations include accusations that the companies improperly sought or obtained land-use agreements with public officials and the officials’ relatives and acquaintances; gave bribes and other improper benefits to public officials; and entered into anti-competitive agreements or practices.

Subpoenas have been sent to First Wind/UPC Wind and Noble Environmental Power, LLC. In his statement, AG Cuomo stressed that “The use of wind power, like all renewable energy sources, should be encouraged to help clean our air and end our reliance on fossil fuels.” However:

honest! “[P]ublic integrity remains a top priority of my office and if dirty tricks are used to facilitate even clean-energy projects, my office will put a stop to it,” he said.

By the way, as the AG states, “Wind farms are clusters of large electricity-generating turbines powered by wind and connected to the electric grid.” The Buffalo News article, “‘dirty tricks’ in local windmill projects,” has the fullest coverage so far of the investigation.

In his Frequently Asked Legal Questions About Wind Farms (orig. pub. The Daily Record, Rochester, NY, June 30, 2005), East Aurora, NY, attorney Arthur J. Giacalone [note: your editor’s brother] has this FAQ about conflicts of interest in the local decision-making process:

Q: Conflicts of Interest:. Do any of the local decision-makers have a conflict of interest requiring recusal from discussions and votes on matters relating to wind farm development?

A: In a various towns throughout upstate New York, elected and appointed officials (or members of their families) have been or will be approached by wind farm developers and offered option agreements or long-term lease or easement agreements to place wind turbine facilities on their land. The payments offered in these contracts clearly create a situation where local officials have, or could potentially have, a direct or indirect pecuniary interest in decisions the town makes, or chooses not to make, regarding wind farm development.

New York courts have stressed how critical it is that the public be assured that their officials are free to exercise their best judgment without any hint or suggestion of self-interest or partiality, especially if a matter under consideration is particularly controversial. Failure of town officials to openly address potential conflicts of interest undermines the people’s confidence in the legitimacy of the proceedings and the integrity of the municipal government. Decisions tainted by even the appearance of a conflict of interest are also vulnerable to reversal in a subsequent court challenge.

National Wind Watch — which offers a brochure brochure detailing alleged adverse effects from industrial wind power — has good coverage of wind power issues and news, and has posted the Attorney General’s Press Release announcing the New York wind farm investigation.

Finally, forget windy controversy, and enjoy over 90 haiku on the f/k/a haiku on the wind page. Here is a sampler:

wind change
the tumbleweed now chases
the kitten

. . . by George Swede – – Almost Unseen (2000)

withering wind…
the scarecrow’s jacket

… by ed markwoski

the narrow place
between my neck and my collar
November wind

. . . by DeVar Dahl – A Piece of Egg Shell, Snapshot Press Haiku Calendar 2003

autumn wind –
trying to keep myself
under my hat

… by John Stevenson – Upstate Dim Sum (2005/I)

sharp wind
the metal gate bangs shut
bangs shut

.. by jim kacian – Presents of Mind (1996)

loud wind–
the bed unmade
all day

. . . by gary hotham – – breathmarks (1999)

summer stillness
the play of light and shadow
on the windchimes

.. by peggy willis lyles – To Hear the Rain (Brooks Books, 2002)

the pinwheel stops
grandpa catches
his breath

… by randy brooks – from School’s Out (Press Here, 1999)

farewell picnic –
wind blows the blossoms
off the dogwoods

… by dagosan – – Haiku Harvest (Spring & Summer 2006 Vol. 6 No. 1)

p.s. RuN It Up ThE FlaGpole muses over who to trust when it comes to information about the dangers of windmills.

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