Law And More

That First Trial of the Century: Theory Hauptmann was innocent

On February 13, 1935, Bruno Richard Hauptmann was found guilty of murder in the first degree and sentenced to death.  At the time, it had been called the trial of the century, not matched again until the O.J. Simpson trial.

The victim was the first child, a son, of Charles and Anne Morrow Lindbergh.  He had allegedly been kidnapped on March 1, 1932.  Based on two decades of investigation, Ana Kyle contends Hauptmann was innocent.  The rest of the facts, she explains in her two books, are ambiguous.  She speculates that the evidence seems to point to a cover up of something that had happened to the child.  And that cover up was engineered by Charles Lindbergh himself along with his friend from Harvard the author Thomas Wolf. The wife and servants in the house were deluded or cowed into silence.  A number of those servants met untimely deaths.

As we sat mesmerized in the New Haven Public Library tonight, Kyle presented her theory. She has 36 years experience as a court-certified Document Examiner of Questioned Documents and conducts psychological profiling through handwriting.  Her books include:

• "Two Men and One Pair of Shoes: The Trial of Richard Hauptmann" [2007]
• "The Dead Poets Plus One: The Lindbergh Kidnap Case" [2004].

She had reviewed the documents, ranging from the ransom notes to the trial transcript [located at the Yale Law School], along with what had been reported to the police.  What she concluded is that, with Charles Lindbergh sitting in the room directly under the child's nursery, it would have been unlikely or downright impossible for a supposed kidnapper to set up a ladder, enter the nursery, carry down the child, and exit.  In addition, she detected that the original ransom notes couldn't have been composed by the uneducated Hauptmann. 

Kyle hypothesized they were written by Wolf, author of "Look Homeward, Angel." He could have participated in the hoax for the adventure and money.  She does not know what happened to the child but suspected something had prior to the alleged kidnapping which was orchestrated as a cover-up.  The corpse discovered over two months after may or may not have been him.  Lindbergh ordered an immediate cremation.  Did the son survive?  No one knows.

Soon after the trial, the Governor of New Jersey reviewed the trial documents and had a sense the original crime scene investigation had been botched because the police obeyed Lindbergh's order not to search the house or question anyone in it.  Perhaps feeling guilty, Wolf indirectly contacted him.  The author died at the age of 38.

This isn't the first time the finger has pointed at Lindbergh.  He was known as a cruel man, with a strong mean streak.  Some speculate he might have been jealous of the baby or engaged in tormenting him that went too far. He was known to frequently hide the baby in the big house.  That mean streak might had drawn him to Hitler who was also a master of cruelty.  What makes Kyle's theory so persuasive is that it's so comprehensive.

We who attended this presentation had to be thrown out of the library at closing time.  We debated Kyle's contentions on the sidewalk for a long time.

Before you leak to ATL or redo your Facebook page, read this

In leakville, there should be a hierarchy of sins.  That could range from the venial sin of emailing the managing partner's smug memo to Abovethelaw.com to the mortal one of transmitting trade secrets to the competition.  But for some organizations, all leaks are equal, as in equally bad. 

As a result, some organizations are pulling out all stops - e.g. 33% have dedicated staff to monitor outgoing email -to prevent unauthorized disclosure.  In the process, they are probably deep-sixing morale and risking a lawsuit for invasion of privacy.  Perhaps a better use of resources is to explore why there are so many leaks and reset the organizational culture, policies, and procedures. 

But, that's not likely to happen.  In THE NATIONAL LAW JOURNAL, Tresa Baldas reports on a recent study by Proofpoint, a web security firm.  It found that among large organizations about 38% monitor and might read email that's going out from employees.  There's more.  They are also tracking what employees are disclosing on social networks.  That has gotten employees fired by 8% of companies.

Companies which are thriving, despite the Black Swan economy, make it a priority to keep employees happy and digitally in the loop.  One of them is Best Buy.  In the book "Grown Up Digital," Don Tapscott describes that outreach in Chapter 6.

Reflection: If your law firm is the victim of extensive leaking, look inward.

Summers Bump Up Against Black Swan Mindset

Law firms, like all the rest of us in business, seemed to have developed a respect for those Black Swans.  They're the unexpected developments or events which have profound, game-changing impacts.  Financial-markets expert Nassim Taleb chronicles how they play out in his book by that title.

So, law firms are not being coy with summers in not handing out offers a year before the start date.  Who knows what will happen in that year?  Also, the tradition of hiring a year before is being looked at the same way as the publishing industry is reviewing the practice of printing a large amount of books without knowing if any of them will sell.

In THE AMERICAN LAWYER, Susan Hansen quotes a summer at Gibson, Dunn & Crutcher who pleads, "For the love of God, please be more transparent about the offer process and outlook."  I think that the summer would find transparency just as frustrating as no information.  Full disclosure for a law firm would be: We don't know. 

Dan Rather's Lawyer Martin Gold Asking NY Court of Appeals for Review

As most everyone knows, Dan Rather's lawsuit was dismissed, which overturned the lower court's decision.  We should have known that was not the end of it.  Rather's lawyer Martin Gold has announced that he is asking the New York Court of Appeals for a review.

Could this be called career suicide by lawsuit?  Rather could have found a position of leadership or at least authority through his contacts after he was dumped by CBS.  Now, he's become a caricature of those former brandnames who can't or won't let go.  Perhaps he looks that old or it's just the malice of the news media but the photos of him show a very aged man.

O'Melveny & Myers - The New Jones Day?

The O'Melveny & Myers brand couldn't be better.  Soon enough one of its head honchos might have a memo leaked in which he or she gushes about how well the firm is doing and badly the competition is stumbling.  Yeah, just like Sims at Jones Day.

As you might recall, O'Melveny & Myers's manifesto about how it will operate the business and soft issues at the firm received the attention of just about every attorney under-35 and every law student.  The way it helped its counselor Darren Tucker get another job during slow business was cited in THE WALL STREET JOURNAL.  And now it brought home the gold for client Disney in the Winnie the Pooh long-running lawsuits by licensee Stephen Slesinger.

In THE AMERICAN LAWYER, David Bario reports, "Los Angeles federal district court Judge Florence-Marie Cooper granted Disney's motion to dismiss all of Stephen Slesinger Inc.'s remaining infringement claims, committing the parties to continue a business relationship that began in 1971 when Slesinger's widow transferred the Pooh rights to Disney in exchange for royalties."  This was a summary judgment and it brings the 18-year saga to a close. 

Sounds to me as much a victory for the client as Jones Day achieved for its client Sherwin-Williams in the almost decade-old Rhode Island lead paint litigation.

"Capitalism" - Pols flock to see it, may get White House screening

Politicians are survivors and so they are among the first who pick up on trends.  Since The Crash and the joblessness that won't budge down, they got it that folks are attacking how the economic system operates.  Being seen earnestly viewing Michael Moore's "Capitalism: A Love Affair" is a shrewd move for them to make.  And they can certainly use the phrases as soundbites. 

So they are flocking to the movie by a director they previously scorned as blowhard and menace.  In Politico.com Kiki Ryan reports that both politicians in the film [Cummings, Kaptur, Hill] and those who aren't [Harkin, Conyers, Grayson, Sanchez] were booked to attend the opening last night.  You bet many others will follow and have their aides form a conga line to movie houses.

Moore's agent Ari Emanuel, who is Chief of Staff Rahm Emanuel's brother, Ryan goes on to say, indicates there could be a White House screening.  

"The Good Wife" - How could a public official afford $3000 an-hour prostitutes?

The Good Wife's resolve must be wavering.  In the first episode there was the tense rite of passage of returning to a law firm.  That preoccupied her.  Then there was the amazing win in her first case.  That euphoria distracted her. 

In the second episode she lost her second case.  To bring it to a civil trial, the plaintiff turned down a half-million dollar settlement. 

The civil case, since it involved a wealthy man and former stripper who claimed to have been raped, was a high-profile one.  So of course the whole enchilada belongs now to the media which can't get enough of this tragic family. The law firm and Alicia look bad, especially since her husband's replacement is now pursuing it as a criminal case.  

In addition, the bits and pieces of her husband's behavior hit her straight in the face.  She found out that the kind of prostitute he enjoyed could cost up to $3000 an hour.  How is a public official able to afford that and even if he could how could he be so selfish as to siphon that money away from his family.  More likely is that, as accused, he dipped into funds that were not his for recreation.  His family, unlike Spitzer's, is not a wealthy one.  Alicia had to go out to work.

The episode ends with Alicia's listening to the tape of her husband and the prostitute.  He indicates that he would give "everything" for this sexual thrill.  Well, he did, didn't he. 

Now, it's up to Alicia to decide if she is going to sustain the role of the good wife, in her heart and in public.  If she dumps the guy, she would be freed up to give her career all she got. 

"This world isn't set up for lawyers to get anywhere"

In an article on necessary risk-taking in THE WALL STREET JOURNAL, Penelope Trunk opined, "This world isn't set up for writers to get anywhere."  She took charge of her own career destiny.  She left writing and established startup Brazen Careerist.  So far, so good.  The venture plunged Trunk into massive debt and cost her a marriage.  But she isn't looking back.  She's looking out for number-one.

What she asserted about writers holds for attorneys.  Even in the boom times, associates soon got it that law-firm life "isn't set up for lawyers to get anywhere."  The shrewd ones did whatever it took to stay in the game long enough to learn the trade, then upon not making partner moved on to a smaller less lucrative game, government work, or some branch of public affairs. 

Currently bloated bodies of unemployed lawyers are everywhere.  Everyone in the know predicts that the business of law of the future will be partner heavy, a few star associates, and myriad lower-paid, just-in-time contract lawyers, in the U.S. and in India.  Like Trunk, attorneys have to take charge of their career destiny. 

That means breaking away from the herd and taking radical risks.  In time one or more of the latter might catapult a career into the big time or give it fresh runway.  Look at Robert Shapiro's web start-up LegalZoom.    Look at Elie Mystal becoming Chief Leak Officer on Abovethelaw.com.  Look at Bill Marler owning the food-borne-disease territory via digital before the web was cool in legal circles.

Gens born into affluence, ranging from Baby Boomers to Millennials, were socialized to trump standardized tests, not take risks.  We all have to change that.

Rather's Last Hurrah - NY Appeals Court Tosses $70 Million Lawsuit

Dan Rather was, just like a lot of former BigBrands, trying to stay in the limelight.  His way seemed to be the way of filing a bizarre lawsuit against CBS.  Well, that didn't pan out. 

Reuters writer Edith Honan reports, "A New York state appeals court on Tuesday dismissed [the] ... lawsuit against CBS in which Rather claimed he was made a scapegoat in a scandal over a 2004 report on then-President George W. Bush's military record."  The court didn't agree that CBS's actions blocked his ability to obtain other employment opportunities.  The evidence didn't support that. This reverses the lower court's ruling which gave it the green light.

Rather will have to ride out of Dodge now.  He's damaged goods aka trouble in the dying medium of television.  Networks need team players, not prima donnas who supposedly stand up for their conception of the right thing to do. Had Rather not tried this end run to retain celebrity he might be working today.  Isn't that what the game is all about these days: Simply staying employed.

Death of a Salesman

Has the so-called tort reformer aka plaintiff-bar hater become a Willy Loman type?  Somehow it is having little luck in convincing us that we should buy into the common good - at least at the Philip Howard-type defines it - and forget about looking out for number-one.

Life has become way too hard for us.  We can't think about abstractions like the common good.  We can only see the world in terms of paying our bills, at least until the recovery picks up steam.  Yet, the tort reformer insists on pitching what it views as the higher road and doing it in the aloof rhetoric of someone who seems to have it pretty good.  Maybe that's what the tort reform movement sees as the common good?