darlene! do we need this chicken juice?

The Festivus Pole at twenty one forty five never fails to disappoint when it comes to confusing conversation, and Christmas 2005 was no different. Just a taste:

“I imagined that motorcycles were driving around in here just now.”

You can thank LittleBro for that one. During the Christmas Eve service at the Church I grew up in and which MJW and Her Honor still attend, a certain solo performance of “Happy Birthday Jesus” was, frankly, so wretched that something had to break it up. When LittleBro made that little gag, we started laughing like two little kids. I guess the Whitten boys still know how to cause a disturbance in Church. See the collection plate theft incident of 1988.

“That horse is still for sale.”

Uncle Terrell. Our attempts at demonstrating the beautiful palomino Missouri Foxtrotter Glory’s strut were not going well. She apparently isn’t fond of being the center of attention, and I hold the dubious distinction of having the “ability” to make any horse pace. So, I had to kick her like I meant it, and the next thing I knew I was at a full gallop in the big circle arena. That, friends, was quite fun, but didn’t bode well for the safety of everyone involved. I still want that horse though.

“Wear it to work when it gets cold.”

Her Honor. As a stocking stuffer, she bought me a new ski mask. It looks like Skeletor. When I reminded her that wearing a ski mask to work when my office is in the largest privately owned bank in the United States has all the makings of a very bad idea, she failed to relent. “I don’t want you to catch cold up there.”

“He’s going on vacation. Apparently, he makes more money than the rest of us.”

Spoken by a certain gentleman as he was wearing the new Rolex he got for Christmas.

“It was the Three Dog Night version, so you lose.”

I love the game Cranium. One of the songs a certain team had to guess while their partner hummed the tune was “Joy to the World.” We got their answer thrown out based on the fact that Isaac Watts did not have in mind the fact that Jeremiah was a bullfrog when he wrote that song in 1719. Trust me, I know, he was a good friend of mine.

“Take home some of that gravy, it’s made with bits of real panther, so you know it’s good.”

Aunt Karen. I had no idea she liked “Anchorman.” But, that gravy was good. It stang the nostrils.

yuletide adoxography at its verisimilitudenest

Dear Santa:

It has come to my attention that you are planning a visit to twenty one forty-five this Saturday evening. Your visit, ostensibly, is to bring gifts to all the boys and girls living under the 3/5 Lawyer Roof, never mind that the youngest permanent resident of the household was born one month after World War II officially ended. The rest of us merely pay the occasional visit.

All of us deserve the finest gifts your workshop has to offer this year. The owner of the Dallas Cowboys even wished me the best, telling me that he “hopes I do better under the stocking this year than I did under that tree up there.” He’s never been one for public speaking, so if you can’t take ol’ Skeletor’s word for it, let me remind you why I should be included on your nice list.

First, not once this year have I lied to anyone without getting caught. The “no harm, no foul” rule is in full effect as far as I’m concerned on this one. If someone finds out that I’ve been less than truthful, then it’s like I never actually lied, right? So, you can’t put me on your naughty list for that.

Second, I didn’t talk back to Her Honor even one time this year, despite her accusation that I lied to her about what I thought of the Christmas present she got me last year.

Third, in all other matters I have been a very good boy this year. I even managed to finish going to school and start earning a living, so this year I won't have to incur more unsecured debt to get you the milk and cookies you deserve. Also, I stopped with all the fast women and booze, because I know how you get jealous and I didn't want to anger you. I even cut my beard off a few months ago so the ladies would flock back to you. That was your early Christmas gift.

My argument being made, I really would like a box of C.A.O. Italias. Does your workshop employ real Cuban rollers? Have a safe flight on Saturday.

Sincerely,

mjw

mele kalikimaka

I couldn't resist making a Cousin Eddie reference two days in a row. I don't think anyone will mind.

"Crapper's full...Murry Chrissmuss!"

In case you're wondering, or even if you weren't, I do have a shopping list for Christmas. Apparently, I've already been bequeathed yet another horse, but aside from wallet-sucking equines, the following ten items could stand to be added to my otherwise unmaterialistic stable of Earthly desires:

(1) A weather-changing machine. Not only have I always wanted one of these, and the power trip would be spectacular, but, frankly, the weather in the Panhandle is beginning to whip me. Two days ago, it never got out of the teens and ice covered everything, including my new Cole Haans. On Christmas Day, the projection is 70 degrees and sunny. What the heck? With apologies to the Hoov, weather can be overrated.

(2) An "Amazin' Laser". For those of you unfamiliar with the great Chris Elliot Saturday Night Live bit from the early nineties, let me fill you in. The Amazin' Laser is a ray gun that disintigrates everything in its path. The commercial touts it as a handy gardening tool, and warns that the Amazin' Laser should not be used for evil, but I have plans. Big plans.

(3) A stocking stuffed with coal. I just want to be able to say that I've actually gotten this before.

(4) A new Christmas sweater. Preferably a red Ralph Lauren pullover just like the one that a certain shareholder spilled merlot all over at the Christmas party this weekend. He claims he'll pay the cleaning bill on that one. How he can be so cavalier to the truth I'll never know.

(5) A replica of the zeppelin Hindenberg, but filled with helium. Because that would be pretty cool, and oh, the humanity. Oh oh oh you don't have to go.

(6) More junk to put on my desk. I was told it looks like a real litigator's desk today. I guess that's because it's an absolute wreck of paper. Actually, now that I think about it, the Amazin' Laser could be of some use there.

(7) Someone to wash Revel Blue. And for that matter, Ike. They both need baths.

(8) A DeLorean and a Mr. Fusion. I can figure out the rest.

(9) A little brother who would update his blog once in a while. Like, now.

(10) I'd like Frank Shirley, my boss, right here tonight. I want him brought from his happy holiday slumber over there on Melody Lane with all the other rich people and I want him brought right here, with a big ribbon on his head, and I want to look him straight in the eye and I want to tell him what a cheap, lying, no-good, rotten, four-flushing, low-life, snake-licking, dirt-eating, inbred, overstuffed, ignorant, blood-sucking, dog-kissing, brainless, hopeless, heartless, bug-eyed, stiff-legged, spotty-lipped, worm-headed sack of monkey crap he is. Hallelujah.

Where's the Tylenol?

you serious clark?

Santa Claus exists, and the proof is in the pudding. That is, if you consider grimy road slush as something akin to pudding.

Winter weather made it's way into town this weekend. Thankfully, I wasn't here. But I had to come back, and the picture wasn't pretty. As I stepped off the plane and walked out to Revel Blue, I slipped on some ice. Emoticon.

Anyway, said weather is of course the surest sign that Christmas is near, and at the firm Christmas party, Santa Claus did show up. Sort of. It was actually the Swedish Mr. and Mrs. Claus that made their appearance. I didn't really get the bit, but whatever. I at least avoided saying, at least not in anything more than a hushed tone, that he wasn't the real Santa.

I hate disappointing children.

But, the real Santa did show up today, in the form of roads that dictated showing up to the office late and leaving early. There's nothing like working from home. Where else could I bill hours in my pajamas? Tis' the season...and I'll do it tomorrow.

which once again proves my theory...

I get to spend two hours at LUV tomorrow between flights. I need ideas to make doing so more entertaing than watching Hasselhoff.

Without KITT, he really is left holding a bag, isn't he? Germans do LUV him though...

i was trying to be ironical

Long-time readers no doubt recognize my flagrant, willful obsession with all things semantic. See Post of April 21, 2005 for an example.

Today, while editing and cite checking an appellate brief, I noticed that the word "cumbersomeness" had somehow found its way into a document meant to, inter alia, simplify things for judges that will no doubt spend five minutes preparing for the case but who will act as though they spent weeks preparing when it comes time for oral argument.

Simplify, simplify, simplify. That's litigation strategery.

Without hesitation, I brought this matter to the attention of the attorney responsible. I admit that I did so with more than a hint of irony. So, his response may have been justified -- "Don't treat me like I'm a Republican!"

Let's invent some new words, people. Irony works well. Even "cumbersomeness" would be good in certain situations. I'll even start you, the reader, off with an example:

The appellant's complex distillation of the case relied upon obfuscates what should be a simple issue - the trial court erred by allowing discovery requests that were notable only for their cumbersomeness.

a long time ago, we used to be friends, but I haven't thought of you lately at all

The United States Court of Appeals for the Ninth Circuit has finally lost me. Not that Newdow helped their cause, but Good Night, they've finally just taken things too far:

Activist Judge Cancels Christmas

One activist judge already helped me today, so maybe I'll let this one slide.

Short and sweet is all I intend.

do you have any idea what the street value of this mountain is?

Bone-chilling weather that began one week ago has subsided for the time being. But now I've got the itch. Roy Stalin, you're going down.

Twice-daily checking of the ski reports has begun in earnest. Granted, it's early yet, but don't judge me. If you lived a mere 4 1/2 hours from Taos Ski Valley, you'd be checking too. Taos only has a couple runs open right now, but soon, baby, soon...

Only six hours to Ski Apache in Ruidoso, but they're not open yet anyway. Too early.

Fortunately, greatness did not escape me today. The High Lift at the greatest mountain/town/resort/place I will move when I hit the lottery, Crested Butte, CO, opened today. Which of course means that as soon as I can get away from the office for a few days, I will be free to take many mucus-hardening trips up that lift in an attempt to ski down and break my legs on the Paradise Cliffs. Maybe I'll do what I've been telling myself I would do for years and make a trip up to the peak. Anyone have snowshoes I can borrow?

Let's just hope I don't take a 250-yard, seven feet in the air, hospital trip-mandating, 8-inch leg bruising spill down International while traveling at 50 mph. That sort of mucked up the trip last year...glad it was just my ski partner. But I was delayed for like 90 minutes before they took him to the hospital so I could start skiing again. Such inconvenience.

Ahhh ski trips...I feel like a little kid on Christmas right now. Who's coming with me? I'm buying at Buckaroo Beanery and Wooden Nickel.

i sure hope santa ana is in orange county

Disregarding excessive daydreaming and trips to the coffee room, I worked harder this week than I have since the week before the bar exam.

I doubt I need to paint any further picture for you to get the idea...

Yesterday, I took my first deposition. Clearly I won't know until after trial, but I'm pretty sure I didn't screw that up. So I got that going for me.

Today, I handled my first mediation. I have no idea if the result was a screw-up or not. But, as MJW told me on the phone tonight, "you can never lose a mediation."

I may be in the Panhandle of Texas right now, but the reaches of my three-week-old litigation practice have proven far reaching already. Since 7:00 am this morning, I have handled matters out of Houston; Plano; Denton; Lubbock; Washington, D.C.; and Santa Ana, California. And of course, good old Amarillo. And let's not forget the booming metropolis of Plainview.

Not that I'm a big shot. I just do what I'm told, and I happen to work for big shots.

The California thing is making me a little apprehensive. If anyone can confirm that Santa Ana is in Orange, that would go a long way toward ensuring I didn't mess up an affidavit. Thanks.

i need my nimbus 2000

Because this apartment is a mess...

For a couple of months, I have been giving serious thought to employing some nice lady to come and clean this place up like, twice a month. Unfortunately, every time I get close to making a call, I cannot justify the expense.

Nevertheless, there are, like, bread crumbs in my sink. There's some dust on the blinds. A slight cheese stain of about 3 milli-inches in diameter resides in my microwave. I cannot abide by that.

Maybe I can just cast a spell.

that's the smell of desire, my lady

Can someone please explain why I find the following ten normally offensive aromas so comforting?

(1) Tire stores
(2) The inside of my suitcase
(3) The Randall County Courthouse
(4) Ike
(5) CD Jackets
(6) My grandfather's garage and tractor
(7) My zip-up maroon/gray Gap sweater
(8) Electrical fires
(9) C.A.O. Italia cigars
(10) Okay, I'm admitting it -- Gasoline

Seriously, I spent the better part of this afternoon pondering these matters...

i've just created something totally illogical

A new career and other life details have got me in a tizzy these days. Very little can be done about it, so the best thing to do is watch Field of Dreams.

“I can’t tell you the secret of life, and I don’t have any answers for you…”

Am I doing the right thing right now?

“When primal forces of nature tell you to do something, the prudent thing to do is not to quibble over details.”

My law practice is already making a difference in the world for the better, I can say that much.

“We don't realize the most signficant moments of our lives while they're happening.”

Follow your dreams. Once you take the first step, it’s not that hard.

“Go the distance.”

with apologies to the orkin man, i have a theory on tom delay

I am utterly shocked to find out that Tom DeLay fights dirty. I'm even more shocked that the Justice Department acts on political rather than legal concerns.

Lawyers like me find themselves aggravated at the occasional cop or zealous Assistant District Attorney who takes the attitude that they're not too worried that the accused is innocent, because surely "he's guilty of something." Such attitudes accomplish nothing, and, thankfully, are rare.

But I'm not embarrassed to admit that such is my sentiment when it comes to Congressman DeLay. The guy clearly inhaled too much of something in his days as an exterminator.

Check out the following article from the Washington Post:

Justice Staff Saw Texas Districting As Illegal

By Dan Eggen

Justice Department lawyers concluded that the landmark Texas congressional redistricting plan spearheaded by Rep. Tom DeLay (R) violated the Voting Rights Act, according to a previously undisclosed memo obtained by The Washington Post. But senior officials overruled them and approved the plan.

The memo, unanimously endorsed by six lawyers and two analysts in the department's voting section, said the redistricting plan illegally diluted black and Hispanic voting power in two congressional districts. It also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections.

"The State of Texas has not met its burden in showing that the proposed congressional redistricting plan does not have a discriminatory effect," the memo concluded.

The memo also found that Republican lawmakers and state officials who helped craft the proposal were aware it posed a high risk of being ruled discriminatory compared with other options.

But the Texas legislature proceeded with the new map anyway because it would maximize the number of Republican federal lawmakers in the state, the memo said. The redistricting was approved in 2003, and Texas Republicans gained five seats in the U.S. House in the 2004 elections, solidifying GOP control of Congress.

J. Gerald "Gerry" Hebert, one of the lawyers representing Texas Democrats who are challenging the redistricting in court, said of the Justice Department's action: "We always felt that the process . . . wouldn't be corrupt, but it was. . . . The staff didn't see this as a close call or a mixed bag or anything like that. This should have been a very clear-cut case."

But Justice Department spokesman Eric W. Holland said the decision to approve the Texas plan was vindicated by a three-judge panel that rejected the Democratic challenge. The case is on appeal to the U.S. Supreme Court.

"The court ruled that, in fact, the new congressional plan created a sufficient number of safe minority districts given the demographics of the state and the requirements of the law," Holland said. He added that Texas now has three African Americans serving in Congress, up from two before the redistricting.

Texas Republicans also have maintained that the plan did not dilute minority votes and that the number of congressional districts with a majority of racial minorities remained unchanged at 11. The total number of congressional districts, however, grew from 30 to 32.

The 73-page memo, dated Dec. 12, 2003, has been kept under tight wraps for two years. Lawyers who worked on the case were subjected to an unusual gag rule. The memo was provided to The Post by a person connected to the case who is critical of the adopted redistricting map. Such recommendation memos, while not binding, historically carry great weight within the Justice Department.

Under the Voting Rights Act of 1965, Texas and other states with a history of discriminatory elections are required to submit changes in their voting systems or election maps for approval by the Justice Department's Civil Rights Division.

The Texas case provides another example of conflict between political appointees and many of the division's career employees. In a separate case, The Post reported last month that a team was overruled when it recommended rejecting a controversial Georgia voter-identification program that was later struck down as unconstitutional by a court.

Mark Posner, a longtime Justice Department lawyer who now teaches law at American University, said it was "highly unusual" for political appointees to overrule a unanimous finding such as the one in the Texas case.

"In this kind of situation, where everybody agrees at least on the staff level . . . that is a very, very strong case," Posner said. "The fact that everybody agreed that there were reductions in minority voting strength, and that they were significant, raises a lot of questions as to why it was" approved, he said.

The Texas memo also provides new insight into the highly politicized environment surrounding that state's redistricting fight, which prompted Democratic state lawmakers to flee the state in hopes of derailing the plan. DeLay and his allies participated intensively as they pushed to redraw Texas's congressional boundaries and strengthen GOP control of the U.S. House.

DeLay, the former House majority leader, is fighting state felony counts of money laundering and conspiracy -- crimes he is charged with committing by unlawfully injecting corporate money into state elections. His campaign efforts were made in preparation for the new congressional map that was the focus of the Justice Department memo.

One of two DeLay aides also under indictment in the case, James W. Ellis, is cited in the Justice Department memo as pushing for the plan despite the risk that it would not receive "pre-clearance," or approval, from the department. Ellis and other DeLay aides successfully forced the adoption of their plan over two other versions passed by Texas legislators that would not have raised as many concerns about voting rights discrimination, the memo said.

"We need our map, which has been researched and vetted for months," Ellis wrote in an October 2003 document, according to the Justice Department memo. "The pre-clearance and political risks are the delegation's and we are willing to assume those risks, but only with our map."

Hebert said the Justice Department's approval of the redistricting plan, signed by Sheldon T. Bradshaw, principal deputy assistant attorney general, was valuable to Texas officials when they defended it in court. He called the internal Justice Department memo, which did not come out during the court case, "yet another indictment of Tom DeLay, because this memo shows conclusively that the map he produced violated the law."

DeLay spokesman Kevin Madden called Hebert's characterization "nonsensical political babble" and echoed the Justice Department in pointing to court rulings that have found no discriminatory impact on minority voters.

"Fair and reasonable arguments can be made in favor of the map's merits that also refute any notion that the plan is unfair or doesn't meet legal standards," Madden said. "Ultimately the court will decide whether the criticisms have any weight or validity."

Testimony in the civil lawsuit demonstrated that DeLay and Ellis insisted on last-minute changes during the Texas legislature's final deliberations. Ellis said DeLay traveled to Texas to attend many of the meetings that produced the final map, and Ellis himself worked through the state's lieutenant governor and a state senator to shape the outcome.

In their analysis, the Justice Department lawyers emphasized that the last-minute changes -- made in a legislative conference committee, out of public view -- fundamentally altered legally acceptable redistricting proposals approved separately by the Texas House and Senate.

"It was not necessary" for these plans to be altered, except to advance partisan political goals, the department lawyers concluded.

Jerry Strickland, a spokesman for Texas Attorney General Greg Abbott, said he did not have any immediate comment.

The Justice Department memo recommending rejection of the Texas plan was written by two analysts and five lawyers. In addition, the head of the voting section at the time, Joseph Rich, wrote a concurring opinion. Rich has since left the department and declined to comment on the memo yesterday.

The complexity of the arguments surrounding the Voting Rights Act is evident in the Justice Department memo, which focused particular attention on seats held in 2003 by a white Democrat, Martin Frost, and a Hispanic Republican, Henry Bonilla.

Voting data showed that Frost commanded great support from minority constituents, while Bonilla had relatively little support from Hispanics. The question to be considered by Justice Department lawyers was whether the new map was "retrogressive," because it diluted the power of minority voters to elect their candidate of choice. Under the adopted Texas plan, Frost's congressional district was dismantled, while the proportion of Hispanics in Bonilla's district dropped significantly. Those losses to black and Hispanic voters were not offset by other gains, the memo said.

"This result quite plainly indicates a reduction in minority voting strength," Rich wrote in his concurring opinion. "The state's argument that it has increased minority voting strength . . . simply does not stand up under careful analysis."

stop, look, and listen baby, that's my philosophy

The King now resides in my office. An elaborately mounted 8 1/2" X 11" version of the photo below greeted me today when I got back from lunch, prominently placed in the middle of my desk with a note that explained it's significance in law firm lore and tradition. My research reveals that it is a still shot from Elvis' 1968 TV Comeback Special.

Apparently, the photo has been passed down through generations of lawyers. Come to find out that the temporary legate means I am now officially "one of the group." Evidently, this is some sort of honor.

A little more bite and a little less bark, a little less fight and a little more spark...

What do I get when I make partner? Hopefully not tickets to Graceland. Thanksgiving week claims of overratedness still resonate in my mind's eye.

As a Fightin' Texas Aggie, I have come to realize over the years that traditions don't have to make any sense to mean something. Who decided that America should sing the National Anthem before something as trivial as a baseball game? Why does the greatest University in the nation make a Collie the highest ranking member of it's military contingent? When my family gets together for the holidays, why do we all stand in a giant circle, holding hands, to say Grace? And perhaps most confusingly, why am I so superstitious?

The answer is different to each person. You just follow it, and figure out what it means to you. Like The King told us before he disappeared in 1977 and moved to Kansas, "When no one else can understand me...You're always there to lend a hand in everything I do."