One Law Dude’s Reflections on #MeToo, and Seinfeld

One Law Dude’s Reflections on #MeToo, and Seinfeld

You have to feel bad for us men in the workplace these days, what with the #MeToo movement and everything. I mean, we just don’t know what we’re allowed to say or do anymore.

Can you hold the door open for a lady at the office? Compliment a woman on her new dress? Roll up to the parking garage blasting “Panama” on the car stereo?

Of course, back in the “good old days,” things were not so good for women in the workplace. There was plenty of overt sexism. It was wrong, but at least the rules of polite society were better defined.

That all changed beginning with the social upheavals of the 60s. Now everything’s upside down, and we need somebody to tell us the new rules.

Fortunately, there was a TV show in the 90s that examined the new social rules, sometimes in minute detail. It was billed as a “show about nothing,” but it was actually a meticulous comedy of manners.

Seinfeld was brilliant because it explored the social world’s unique standards of conduct. You don’t want to be one of those “low talkers.” You don’t make out with your date during Schindler’s List. You stand at a certain distance behind someone at the ATM. You certainly don’t double dip.

At the same time, Seinfeld showed that these norms cannot be reduced to a code of conduct with rules, sub-rules, exceptions, and counter-exceptions. This is what distinguishes manners from the law, or at least from what the law wants to be. It’s why someone with autism might be able to memorize the NFL rulebook but struggle with simple social cues.

And it’s why us guys might have a hard time grasping the new rules for how to interact with women. Take George Costanza, for example. In Season 5, Episode 4, “The Sniffing Accountant,” George gets a lesson in appropriate workplace conduct.

In the opening scene, Elaine gushes over her new boyfriend. They met at the office:

Elaine: So, I was sitting at the reception desk, I was looking pretty hot. I was wearing my sling back pumps.

George: What are those?

Elaine: Ask your mother, you live with her now, don’t you? Anyway, so then this guy comes up to me and starts feeling my jacket through his thumb and his forefinger, like this.

Jerry: So, what did you do?

Elaine: I said, “So, what do you think?” And he said, “Gabardine?” And I said, “Yeah.” That was it.

George: Wow, just felt your material?

Elaine: Yeah, Jake Jarmel.

George: Sounds like a cool guy.

Later, George decides to try out Jake’s maneuver. After a successful job interview with Mr. Farkus for a position as a brassiere salesman, George is on a roll as he waits for the elevator. There’s an attractive woman standing next to him, so he reaches out and touches the sleeve of her jacket. It does not go well:

Ms. De Granmont: What do you think you’re doing?

George: Oh, nothing.

Ms. De Granmont: Farkus, get out here!

Farkus: Yes, Ms. De Granmont?

Ms. De Granmont: Who is this perverted little weasel?

Farkus: This is Costanza, he’s our new bra salesman. He’s supposed to start on Monday.

Ms. De Granmont: If he’s here on Monday, you’re not. Take your pick.

Farkus to George: Get out!

You have to pity George. When Jake pulled this move on Elaine, it was charming. But when George tries the same thing, it’s just creepy.

How is this fair? What is the applicable rule?

The problem, of course, is that all men are not created equal. Jake is handsome and smooth. George is short and bald and awkward. But you couldn’t have an employee handbook that says “debonair men may touch women’s clothing and comment on it; others are prohibited.”

That’s the difference between manners and law. This episode teaches us two things about social conventions: they are hard to rigorously define, and they are decidedly unequal as applied to different people.

This is just not fair, us dudes tend to think. How are we supposed to navigate the gray areas of acceptable conduct towards women?

You hear this kind of complaint a lot from certain guys. But then a funny thing happened on the way to Monk’s Diner. The #MeToo movement exploded, and it exposed an ugly truth: a lot of men have done a lot of really horrible things to women at work.

Let’s just take some of the obvious public examples:

  • Harvey Weinstein
  • Matt Lauer
  • Al Franken
  • Bill Cosby
  • Donald Trump

Obviously, some of their alleged offenses were worse than others. But all of them have one thing in common: these men allegedly did things that everybody knows you shouldn’t do. These things were wrong before the Sexual Revolution, and they are wrong after it. They are not gray areas.

Not only that, I’d wager that part of the attraction for these men was knowing the things were wrong. That’s the whole point. Proving you’re a big shot guy who can take advantage of women and get away with it. “When you’re a celebrity they let you do it.”

Of course, everyone is innocent until proven guilty . . . yadda, yadda, yadda. But let’s assume for the sake of argument these men did the things they’re accused of. One defense they cannot assert in good faith is “I didn’t know it was wrong.”

That’s why the common lament of “we just don’t know what’s ok anymore” rings a little hollow to me.

And that brings me back to Seinfeld. Specifically, Season 3, Episode 12, “The Red Dot.” It’s another one of George’s misadventures at work. George has an affair with the cleaning lady at his office, leading to this confrontation with the boss:

Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?

George: Who said that?

Boss: She did.

George: Was that wrong? [audience laughs . . .] Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, [more laughs] you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.

Boss: You’re fired.

This time we don’t pity George at all. It’s not like the fabric incident at the brassiere company, where we laughed because George was so pitiful. In this case, the “was that wrong?” line gets laughs precisely because it’s so absurd. Of course it was wrong!

And once again, Seinfeld delivers an insightful lesson about social norms. Some rules don’t have to be written down; they’re just obvious. The employee handbook doesn’t need to say “employees may not have sexual relations with the housekeeping staff in the office.”

So men, here’s my modest proposal on sexual harassment: let’s agree not to tolerate the stuff we all know is wrong, and not complain so much that there will inevitably be borderline cases.

Don’t get me wrong. I’m not saying that women should just chill about the minor incidents and only complain about major felonies. I’ve got a wife, a mom, sisters, a college-age daughter–I don’t want them or any woman to be subjected to even minor incidents of harassment.

I’m also not saying that men are totally off base when they complain that the standards are so ill-defined today. There is at least a grain of truth to that.

But maybe us guys could focus more on cutting out the stuff we know is bad. I think #MeToo has done a great service by shining a light on those things.

Was that wrong?

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Thanks to Rebecca Wolfe and Hailey Wolfe for their advice on my initial draft (though I bear full responsibility for the final content).

Totally Apolitical Lessons for Lawyers from the Mueller Report

Totally Apolitical Lessons for Lawyers from the Mueller Report

If you’re a lawyer, or if you’ve ever had a lawyer, you’ve probably had a conversation something like this.

It was a conference call I had with a Texas client—let’s call him Fred—who had been dragged into a big lawsuit in another state. We had our local counsel on the line—let’s call him Frank. Frank was an accomplished litigator from the place where the client had been sued.

Frank had a way with words. He meticulously yet simply outlined the legal issues facing our client. He skillfully walked through the pros and cons of the strategy decisions we faced. In short, he laid out all the factors beautifully. I was impressed.

Our client, Fred, was a self-made businessman who had done quite well for himself. He was smart, but plain spoken. Fred’s reaction to Frank’s brilliant presentation of the issues? “Ok, so what should I do?”

That, in a nutshell, is the problem with the Mueller report.

The Mueller Report

Obviously, people have different political views of the Mueller report and the investigation that produced it. Let’s set that aside for a moment.

I’ll start with some easy things we can all agree on. The report has two volumes. I don’t think that’s controversial.

Volume I is about whether Trump and his campaign conspired or coordinated with the Russians to interfere in the 2016 presidential election.

Now we’re slightly drifting into the controversy lane, because some people would say Volume I is about “collusion.” But Volume I is careful to point out that it did not analyze “collusion,” which is not a legal term. See Vol I, p. 2 (“we applied the framework of conspiracy law, not the concept of ‘collusion’”).

Volume I stated a conclusion. The conclusion was: “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” (Vol I, p. 2) While some people might dispute this conclusion, I don’t think anyone disputes that this was the conclusion.

Volume II was about obstruction of justice. I think everyone agrees on that, although some people might think obstruction of justice should not have been investigated.

In contrast to Volume I, Volume II did not state a conclusion.

Now we’re getting controversial (sort of). Because Trump and his team have claimed that the Mueller report cleared Trump on obstruction of justice. “No collusion, no obstruction.” “Total exoneration.” “Case closed.”

But that claim is simply false. Any intelligent and honest person who has read Volume II would have to concede that.

And this shows us the impossibility of a completely “apolitical” or “neutral” discussion of the Mueller report. Even the simplest objective observation about the report directly contradicts things the President has said about it.

I’m not saying this to bash Trump. It’s just a fact.

But I promised no politics. So let’s get back to the things we can all agree on. Like why didn’t Volume II state a conclusion on obstruction of justice?

Oh crap. Controversy again. Trump’s team would say Volume II didn’t state a conclusion on obstruction of justice because there was insufficient evidence that he obstructed justice.

But again, that would be demonstrably not true. The report says the opposite: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.” (Vol. II, p. 182)

So why no conclusion on obstruction? The report identifies two related reasons: (1) the OLC memo and (2) the difficulty of the question.

A Strange Asymmetry

The Office of Legal Counsel memo is an internal Justice Department policy that says you cannot indict a sitting President (there is an original 1973 memo and a 2000 update). This is a hotly contested issue of constitutional law. But the Mueller team decided they were bound to follow this policy.

And then they went a step further. The Mueller team decided that, because they could not charge the President with obstruction of justice, they could not state a conclusion that the President obstructed justice, even if that’s what the evidence established. The Conclusion of Volume II stated: “Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct.”

I think this was the most important decision the Special Counsel made, and I think it was the wrong decision.

It produced a strange asymmetry: if the evidence established that the President did not obstruct justice, the report would say so; but if the evidence established that the President did obstruct justice, the report would not say so.

And all of this because of that pesky OLC memo, right?

If only it were that simple. The Conclusion to Volume II adds this: “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.”

Those “difficult issues” are largely questions of the President’s intent, where the report takes pains to lay out the evidence both for and against corrupt intent.

The statement about difficult issues muddies the water. Putting it all together, here’s what I think Volume II is saying:

  1. The evidence does not clearly establish that Trump did not obstruct justice. If it did, we would say so.
  2. There is evidence that Trump obstructed justice, but the evidence presents some difficult issues.
  3. We are not allowed to state a conclusion that Trump obstructed justice.
  4. Because we are not allowed to state a conclusion that Trump obstructed justice, we are not going to bother with trying to resolve the “difficult issues” presented by the evidence of obstruction of justice.

The result is a report that has the same problem as Frank’s advice, recounted earlier. It leaves the public and Congress in the same position as Fred. They are left asking “ok, so what should we do?”

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This ceiling is symmetrical. Mueller’s methodology was not.

What should we do? The Mueller report doesn’t tell us. It is much like a legal memo from a lawyer to a private client laying out the arguments and evidence on both sides of an issue, but not giving the client a recommendation on what to do.

But is that wrong? Was it the Special Counsel’s job to tell Congress what it should do? Is it the lawyer’s job to recommend to the client what decision to make?

In my opinion, the answer to these questions is a qualified yes.

Answer the Question

Now, don’t get me wrong. I’m not saying that the Mueller team’s decision not to state a conclusion on obstruction of justice was unreasonable. There is at least a reasonable argument that if you can’t indict the President for obstruction of justice, then you shouldn’t accuse the President of obstruction of justice. The report explains this.

And I’m not saying the Special Counsel acted in bad faith. I don’t think the Mueller team avoided answering the difficult issues because of laziness, fear of being criticized, or some other inappropriate reason.

But I do think the Special Counsel came up short. The report should have stated a conclusion, yes or no, on whether the evidence established that Trump obstructed justice.

If the answer was no, that would likely be the end of it. Sure, some Democrats would have tried to keep the issue alive, but as a practical matter the obstruction of justice charge would be dead.

If the answer was yes, the report could have stated the conclusion that the President obstructed justice. Then it could have simply added that the President could not be indicted because of the OLC memo. At that point the ball would be squarely in Congress’s court.

Either way, it would be an improvement over the current situation. As it stands, we are left to wonder what the Mueller team would have said. I expect some member of Congress will ask Mueller this question when he testifies this week, and that he will avoid giving a direct answer.

But is there any group of people anywhere in the world more qualified to answer the question than Mueller’s team? Whatever you may think of their political allegiances or motivations, these are some of the top lawyers in the country. They have spent hundreds of hours of their professional lives investigating the facts and analyzing the law.

That doesn’t mean we would all have to agree with their conclusion (and you can guarantee that, either way, a large percentage of voters would not). But wouldn’t it be nice to know what they think?

The Lawyer’s Assignment

The same is true when us “ordinary” lawyers give advice to clients. No one is in a better position to recommend to the client what to do than us.

There are, of course, exceptions. The most obvious reason not to give the client a recommendation is if the client doesn’t want one. If a client says “analyze the issues and give me all the pros and cons, but don’t tell me what you think I should do,” then sure, follow those instructions.

But that’s not the way it usually goes down.

Usually the client does not identify the scope of the assignment so precisely. Clients come to lawyers with problems. They rely on lawyers not only to answer their questions, but to make sure the questions they ask are the right ones. The scope of the assignment is usually somewhat open-ended.

Lawyers can be reluctant to give recommendations. There are several reasons for this. An obvious one, especially for the cynical, is that lawyers don’t want to get sued for malpractice. If lawyers don’t give explicit recommendations, one might think, they can’t get sued for giving the wrong recommendation.

That is surely a factor, but I think it’s a minor factor. There are more fundamental reasons lawyers like to leave it to the client to decide what to do.

First, there is the simple human fear of getting criticized for making the wrong recommendation. Legal malpractice suits are very rare, and judgment calls do not make for good malpractice claims. But being blamed for recommending a decision that does not turn out well is all too common. Hindsight is 20/20, and no one likes getting thrown under the bus.

Second, there is the simple fact that sometimes the client doesn’t really want the lawyer’s recommendation. What some people actually want are legal reasons to support the decisions they have already made in their minds. In these situations, lawyers who are good at keeping clients don’t want to recommend what to do until they figure out what the client already wants to do. You don’t want to take the risk that you recommend the opposite.

In both cases, the lawyer’s impulse to avoid giving a sincere recommendation on what to do is understandable, but not commendable.

Just as the Mueller team was in a unique position to give an opinion on the obstruction question, a lawyer is a unique position to give a client guidance on the best thing to do. Who is better qualified to give a recommendation?

Of course, there are often things the lawyer does not know. It can be hard to gauge the client’s risk tolerance. There can be unidentified factors, especially personal factors, that bear on the decision, e.g. the lawyer may not appreciate that taking that settlement offer is better than the emotional toll of two years of litigation. And it is even possible—gasp!—that there are undisclosed facts the client knows but the lawyer doesn’t.

But factors like this underscore the importance of understanding the client. You have to get to know Fred before you tell him what to do.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

 

Legislation Aims to Reign in the TCPA, Protect Non-Compete Suits

Legislation Aims to Reign in the TCPA, Protect Non-Compete Suits

Winston Churchill said democracy is the worst possible form of government, except for all the alternatives. I recall that sentiment any time I think about the Texas legislature. I also think of the words of another wise man, Obi-Wan Kenobi, when he described Mos Eisley spaceport to a young Luke Skywalker.

But sometimes the legislature surprises you and does something halfway sensical.

To wit: on February 28, 2019, Representative Jeff Leach (R-Plano) filed House Bill 2730, which would amend the Texas Citizens Participation Act (“TCPA”). My Fivers already know the TCPA is the hottest thing in Texas litigation right now, and that it could use some amending.

The bill would make these fundamental changes:

  • The TCPA would be limited to suits implicating the constitutional rights to petition, speak freely, or associate, as those rights are applied by state and federal courts—not as those rights were broadly defined in the original TCPA.
  • The TCPA would not apply to suits to enforce non-competes or NDAs.

Notably, the bill does not exempt suits brought under the Texas Uniform Trade Secrets Act (TUTSA) from application of the TCPA.

The bill would also make these less fundamental, but still important, procedural changes:

  • Certain motions—including a motion to compel and a motion for summary judgment—would not trigger the right to file a TCPA motion to dismiss.
  • The TCPA would expressly state that its purpose is procedural (to avoid application in federal court?)
  • At least 14 days’ notice of a hearing on a TCPA motion would be required.
  • The responding party could avoid the TCPA motion—and any award of attorney’s fees—by filing a nonsuit at least three days before the hearing.
  • The statute would not apply to a compulsory counterclaim.

In departing employee litigation, the overall effect would be to shift the balance of power back towards companies who sue to stop their former employees from working for competitors.

More bills have since been filed. Senator Angela Paxton (R-McKinney) introduced SB 2162, which matches HB 2730. Rep. Joe Moody (D-El Paso) has offered a narrower bill, HB 3547, that would exclude trade secret and non-compete claims from the definition of “right of association.” And Rep. Dustin Burrows (R-Lubbock) has offered House Bill 4575, another more limited rewrite, which would exempt DTPA and non-compete claims.

You can find a useful comparison chart of these bills here at Sean Lemoine’s “Anti-Slapp Texas” blog, which is a great source for TCPA developments generally.

How the Sausage Gets Made

No doubt these bills were in response to Five Minute Law’s call for reform in It’s Alive, It’s ALIVE! How to Kill a TCPA Motion in a Trade Secrets Lawsuit. Right?

More likely it was in response to the chorus of Texas appellate judges saying something has to be done to limit the TCPA it to its stated purpose of protecting constitutional rights. Nobody really intended the statute to apply to, for example, an ordinary departing employee lawsuit alleging breach of a non-compete and/or misappropriation of trade secrets.

On the other hand, I doubt much happens in the legislature unless either (1) some powerful donor or interest group is pushing for a change (I was going to say “special” interest group, but that would be somewhat redundant), or (2) some issue has personally irritated a legislator.

Then it hit me. Leach, a Republican representing parts of Collin County, practices complex commercial and civil litigation with Gray Reed. So I’ll bet he has some firsthand experience with TCPA motions.

Plus, as I speculated in Can You “Plead Around” the TCPA?, “[c]ompanies that want to enforce their non-competes and protect their (alleged) trade secrets are going to push back on broad application of the TCPA.” You had to think that business groups were going to get behind some effort to reign in the TCPA.

And right on cue, “Texans for Lawsuit Reform” circulated an 18-page report urging changes to the TCPA. See TLR Comes Out Swinging Against the Texas Anti-SLAPP. From the press I’ve seen, it appears that TLR is backing the more sweeping changes in the bills offered by Leach and Paxton.

Naturally, this has produced a counter-offensive from media interests and free speech groups, resulting in editorials like the Fort Worth Star-Telegram’s Your right to share your opinion is threatened by this proposed state law. The Star-Telegram prefers Moody’s narrower bill, warning that the broader rewrites “would allow anyone to file a lawsuit against a speaker or writer regardless of whether the claim is valid.” (Can you imagine?!)

For more articles, see Media Groups Come Out Swinging Against Changes to the Texas Anti-Slapp.

This is politics, of course, so you don’t always know exactly who is backing what and with what motives. But I can tell you that the opinions you find in the editorials have very little to do with the actual reality of TCPA practice. When practicing litigators who actually handle TCPA motions read the heated rhetoric, we just kind of shake our heads and chuckle.

If I Ran the Zoo . . .

Some have asked me, as a lawyer who handles a lot of departing employee litigation, what I think about the proposed legislative changes. But I’m a guy who thinks Texas should have a state income tax, so that tells you how much currency my opinions hold.

As with so many things in politics, I don’t even know where to begin.

If it were up to me, Texas would encourage more competition by only allowing non-competes in the sale of a business. This would mean less non-compete litigation, thus less billable work for me. On the other hand, employers would just shift to suing former employees for misappropriation of trade secrets—the “de facto” non-compete—so maybe my business wouldn’t dry up.

And if I made the rules, we wouldn’t have special-interest legislation that adopts a different set of rules for one particular type of litigation. So the TCPA (and a lot of other statutes) would have never passed in the first place.

But of course, we are not writing on a blank slate. In politics, as in law, you have to take the world as it is, not as you wish it to be. Considering Texas has a non-compete statute that allows reasonable non-competes and a TCPA that has the stated purpose of protecting constitutional rights, it does make sense to change the TCPA’s broad definitions and to carve non-compete suits out of the statute.

The Preemption Predicament

But does the TCPA apply to non-compete lawsuits in the first place? Section 15.52 of the Texas Covenants Not to Compete Act states that its criteria for enforceability, procedures, and remedies for non-competes are exclusive and preempt other law. Citing this provision, some have argued that the non-compete statute already preempts the TCPA.

Similarly, Section 134A.007 of the Texas Uniform Trade Secrets Act states that it “displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret.” Does this mean that TUTSA preempts the TCPA?

Texas appellate courts have yet to rule on these preemption questions.

Ironically, if House Bill 2730 becomes law, it could imply that the non-compete statute never preempted the TCPA. If the non-compete statute already preempted the TCPA, one could argue, there would be no reason for the legislature to add an exemption for non-competes to the TCPA. After all, the law is a seamless web.

And what would passage of the legislation mean, if anything, for trade secrets claims?

As with so much legislation, the proposed changes to the TCPA in House Bill 2730 and the other bills would answer some questions but raise others. Every time the legislature messes with the civil justice system, there are unintended consequences. But this is how we do it.

As Obi-Wan might say, “Who is more foolish? The fool or the fool who follows him?”

*Update: HB 2730 later passed. See Turn Out the Lights, the Party’s Over: Texas Legislature Takes All the Fun Out of the TCPA.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

 

Lordy, There are Text Messages! Lessons from the Roger Stone Indictment

Lordy, There are Text Messages! Lessons from the Roger Stone Indictment

Like most lawyers, I still recall the very first lawsuit I worked on. It was an insurance coverage case arising from a huge jury verdict. I remember going through the correspondence from the underlying case, mainly looking for evidence about why the insurance companies didn’t settle the case.

That’s thrilling stuff for one group: insurance coverage lawyers. For everyone else, not so much.

But here’s one thing I remember about that correspondence you might find interesting: there was not a single email or text message.

That was 1997. There were a lot of letters in that file, most of them by fax. We had email, of course, but I wasn’t surprised that the file had no emails. And very few people were texting then (certainly not about business or legal matters).[1]

Fast forward two decades, and emails are ubiquitous in litigation. Of course this change has not gone unnoticed. I remember a few years ago a senior litigator lamenting how emails had ruined litigation (he was mainly referring to the time and expense of e-discovery battles). But the degree of the change really hit me when I read the Roger Stone indictment last week: 90% of it is about emails and text messages.

The Stone Indictment

I’m sure you’ve heard about the Roger Stone indictment, but if you haven’t read it, first you’ll need a players list:

“Organization 1”: WikiLeaks

“Head of Organization 1”: Julian Assange

“Person 1”: political commentator Jerome Corsi

“Person 2”: radio personality Randy Credico

“Senior Trump Campaign official”: Steve Bannon

“Supporter involved with the Trump Campaign”: I’m not sure who this is.

For better readability I’m just going to use the proper names in my references below.

The seven-count indictment accuses Stone of three things: obstructing a Congressional investigation (Count 1), false statements to Congress (Counts 2-6), and witness tampering (Count 7).

If you’ve paid any attention to the Mueller investigation, or if you’ve just watched Law and Order, you’re familiar with Mueller’s “flipping” strategy. It’s the same approach prosecutors take to organized crime. You start by charging the lower-level people and getting them to flip on the people above them. You work your way up the ladder until you get the boss.

But the striking thing about the Stone indictment is that Mueller doesn’t need anyone to flip on Stone. Why not? Because he can prove his case against Stone with Stone’s own emails and text messages. Let’s break it down.

Count 1: The Special Counsel alleges that Stone obstructed the Congressional investigation by giving false testimony, failing to turn over responsive documents, submitting a false letter to Congress, and attempting to have Credico testify falsely to Congress. (¶ 41)

This count can be proven simply by the existence of emails and text messages that Stone either failed to produce or falsely stated did not exist. That’s before we even get to the substance of what they said.

Count 2: “STONE testified falsely that he did not have emails with third parties about Assange, and that he did not have any documents, emails, or text messages that refer to Assange.”

The emails show that Stone had communications with Jerome Corsi and Randy Credico about Assange. For example:

7/25/16 Email from Stone to Corsi: “Get to Assange [a]t Ecuadorian Embassy in London and get the pending WikiLeaks emails.” (¶ 13a)

8/2/16 Email Corsi to Stone: “Word is friend in embassy plans 2 more dumps.” (¶ 13c)

Count 3: “STONE testified falsely that his August 2016 references to being in contact with Assange were references to communications with a single ‘go-between,’ ‘mutual friend,’ and ‘intermediary,’ who STONE identified as Randy Credico.”

The emails between Stone and Corsi show that Credico was not the only intermediary. See the examples under Count 1 above.

Count 4: “STONE testified falsely that he did not ask the person he referred to as his ‘go-between,’ ‘mutual friend,’ and ‘intermediary,’ to communicate anything to Assange and did not ask the intermediary to do anything on STONE’s behalf.”

In fact Stone sent text messages and emails to Credico asking him to communicate specific requests to Assange. For example:

9/18/16 text message from Stone to Credico: “I am e-mailing u a request to pass on to Assange.”

9/18/16 email from Stone to Credico: “Please ask Assange for any State or HRC e-mail from August 10 to August 30 . . .”

Count 5: “STONE testified falsely that he and the person he referred to as his ‘go-between,’ ‘mutual friend,’ and ‘intermediary’ did not communicate via text message or email about WikiLeaks.”

Stone and Credico did communicate via text message and email about WikiLeaks, as shown by the examples above.

Count 6: “STONE testified falsely that he had never discussed his conversations with the person he referred to as his ‘go-between,’ ‘mutual friend,’ and ‘intermediary’ with anyone involved in the Trump Campaign.”

The emails and text messages show that, in fact, Stone discussed what he was learning from his intermediary with a “high-ranking Trump Campaign official” (Bannon) and a “supporter involved with the Trump Campaign”:

10/4/16 email from Bannon asking about the status of future releases by Organization 1. Stone replied that Assange had a “[s]erious security concern” but that WikiLeaks would release “a load every week going forward.” (¶ 16c)

10/4/16 text message from the supporter involved with the Trump Campaign to Stone, asking “hear anymore from London”? Stone replied, “Yes – want to talk on a secure line – got Whatsapp?” (¶ 16d)

Count 7: Stone “knowingly and intentionally corruptly persuaded and attempted to corruptly persuade another person, to wit: Randy Credico, with intent to influence, delay, and prevent the testimony of any person in an official proceeding.” (¶ 45)

You’d think this count would depend on the testimony of Credico. In that case, Stone’s strategy would be to deny pressuring Credico and to attack Credico’s credibility. But the problem for Stone is that he pressured Credico in his own text messages.

And this is where it gets juicy. Not only does Mueller have text messages where Stone leans on Credico, he has text messages with flavor. Here are some highlights:

Stone texts Credico: “‘Stonewall it. Plead the fifth. Anything to save the plan’ . . . Richard Nixon.” (¶ 37a)

Stone texts Credico to do a “Frank Pentangeli,” the character in The Godfather: Part II who testifies to a congressional committee that he doesn’t know anything. (¶ 37e)

More texts from Stone to Credico: “And if you turned over anything to the FBI you’re a fool.” “If you testify you’re a fool. Because of tromp I could never get away with a certain [sic] my Fifth Amendment rights but you can. I guarantee you you are the one who gets indicted for perjury if you’re stupid enough to testify.” (¶ 37f)

“I’m not talking to the FBI and if your smart you won’t either.” (¶ 39a)

My personal favorites: “You are a rat. A stoolie. You backstab your friends-run your moth my lawyers are dying Rip you to shreds.” I’m going to “take that dog away from you” (referring to Credico’s therapy dog Bianca). “I am so ready. Let’s get it on. Prepare to die [expletive].” (¶ 39b)

“You are so full of [expletive]. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend” (¶ 39c)

Dang! If you’re a civil litigator like me, can you imagine finding dynamite emails like this? Not only do they prove Stone pressured Credico to stonewall Congress, they are the kind of zingers that a jury is going to remember. In the words of Bob Schneider, “the flavor’s too strong.”

There is also a sober lesson here. As the senior litigator lamented, fighting over discovery of emails may have taken the fun out of litigation. But the emails themselves—as well as the text messages—may have saved litigation.

The Emails Will Set You Free

Imagine a world where Roger Stone didn’t have email or text capability. Would he have written letters saying all that stuff to Corsi, Credico, and Bannon? Highly unlikely. And then it would come down to testimony from Corsi and Credico, with Stone claiming they made the whole thing up.

But no, Stone can’t reasonably dispute the emails and text messages. That’s why he and his lawyer have already signaled a different strategy. They will have to concede the false statements but argue that the statements were immaterial and unintentional. I’m no criminal law expert, but those arguments sound pretty weak to me. So the big lesson of the Stone indictment is the importance of the defendant’s emails and text messages.

But does such a strange case really tell us anything about ordinary litigation? The defendants in most cases are not so brazen, right?

Yes, we could dismiss Stone as an oddball. I mean, the dude has a tattoo of Nixon’s face on his back and dresses like a villain from an M. Night Shyamalan movie.

Still, let’s not be too quick to treat the Stone indictment as a special case. I admit I’ve never seen an email in a business lawsuit where a guy threatens to take you’re little dog too (!) But I have seen some doozies. You’d be surprised the things people will put in an email. See, for example, the case featured in How Not to Handle “Bad” Emails in Litigation.

And with text messages it’s even worse. Just as people feel comfortable saying things in an email they would never say in a letter, they will put stuff in a text message they would never say in an email.

On the other hand, someone who never uses email or text messages doesn’t have to worry.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

photo credit: Eric Yi-Jun Wolfe

[1] According to this history, the first text message was sent in 1992, but texting did not become widespread until around 2000, eventually passing phone calls in 2007.

It’s the Norm: French Lessons on the Limits of Law

It’s the Norm: French Lessons on the Limits of Law

It’s that time again.

Every two years I write an “Election Edition” of Five Minute Law. Two years ago, on the eve of the 2016 presidential election, I posted Political Correctness, Paleo Correctness, Trump, and What All This Has to Do With Lawyers.

The primary argument: political correctness, i.e. dogmatic liberalism, is a problem, but the proper antidote is true liberalism (in the historic sense), not prejudice. The secondary argument: lawyers have a special role in defending individual liberties and tolerance.

I think subsequent events have largely confirmed both arguments. The backlash against liberalism has proceeded on multiple fronts. And on each front, lawyers have played a prominent role.

It’s striking how many of the political fights over the last two years have involved litigation, lawyers, and judges. Take the “travel ban,” separation of immigrant children, the Mueller investigation and prosecutions, just to name a few. These battles have raged in the courts, not the halls of Congress.

Even the most recent political battle, while fought in the Senate, was about who would sit on the nation’s highest court. Everybody understood the stakes.

If there is one thing both sides agree on, it’s that law matters in American politics. Whether you send money to the Federalist Society or the ACLU, you understand the power wielded by those who interpret and apply the law.

This is partly because of the Supremacy Clause. When the Constitution is the supreme law of the land, interpretation of the Constitution becomes paramount.

Even aside from the Constitution, law is fundamentally important to American politics. Whether you vote for Ted Cruz or Beto O’Rourke, you probably like to invoke the “rule of law” in support of your political opinions.

The Constitution and the rule of law are supposed to keep the majority from oppressing the minority. And we want to prevent those who come to power in the name of the majority from abusing their power to the point where they no longer bother answering to the majority. It’s part of the “checks and balances” the American founders created.

They even left us with an instruction manual, in the best book ever written about American politics. It’s really not a book, but a series of essays anonymously published under the pseudonym “Publius.”

The real identity of Publius remains shrouded in historical mystery, but some believe he was connected to Aaron Burr.

Publius was bullish on the possibilities of an American republic but had one overriding worry: how to prevent American democracy from devolving into tyranny—either by the majority or by a demagogue claiming to speak for the majority. The Constitution—along with the Bill of Rights added later—was designed to prevent this.

But Publius understood the Constitution was not an automaton that, once set in motion, would guarantee freedom for his posterity. The success of the American experiment would depend on certain virtues of the people and their leaders. The republican system could be thwarted by a leader skilled in “flattering the prejudices of the people” who could “mount the hobby horse of popularity.”

So as great as the Federalist Papers are, they are not enough. We also need the second-best book about American politics. Strangely, the man who wrote this book was not a democrat, and not even an American. He was a French aristocrat named Alexis de Tocqueville.

In his two-volume masterpiece Democracy in America, Tocqueville tackled essentially the same problem Publius confronted decades earlier: how to keep democracy from turning on itself and threatening liberty. Or to put it in our contemporary terms, how to prevent a liberal democracy from degenerating into a corrupt democracy, leading to authoritarianism.

Americans might object, “what can this Frenchman teach us about democracy, much less about America?”

But one thing Tocqueville had over Publius was a broader perspective. When Tocqueville talks about “democracy,” he does not so much mean a form of government as a social system based upon equality, the opposite of a landed aristocracy. So while the Federalist Papers focus almost entirely on politics, Tocqueville steps back and looks at the effects of democracy on politics and society.

Plus, the fact that Tocqueville was an alien in America only added to his insight.

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America’s favorite philosophizin’ Frenchman

One advantage of Democracy in America is that Tocqueville exhibits no trace of sentimentality towards either America or democracy. While he finds many things to admire about America, and acknowledges that democracy has its advantages, he views both with a certain objective detachment.

Of course, you will not get that sort of honesty from American politicians today. They may betray the ideals of democracy, but you will never find them publicly criticizing the ideals themselves. No, they celebrate the “common man,” even if they wouldn’t be caught dead actually socializing with one.

Tocqueville, in contrast, does not praise democracy as man’s greatest achievement. Rather, he views democracy—of the social state—as inevitable, a fait accompli to be accepted. “I have not even claimed to judge whether the social revolution, whose advance seems to me irresistible, was advantageous or fatal to humanity,” he wrote in the Introduction to Volume 1, rather “I have accepted this revolution as an accomplished fact or one about to be accomplished.” (13)

And Tocqueville’s admiration for American democracy did not come from being born here. It arose from the fact that by the 1830s America had been largely successful in maintaining a peaceful and stable democratic republic. “There is one country in the world where the great social revolution I am speaking of seems nearly to have attained its natural limits,” he wrote, and “this country sees the results of the democratic revolution operating among us without having had the revolution itself.” (12)

This was in stark contrast to revolutionary France, which desperately needed lessons on maintaining a stable democratic republic. Tocqueville said he did not go to America “only to satisfy a curiosity,” rather he “wanted to find lessons there from which we could profit.” (12)

France was always on his mind. In contrast to some famous philosophers, Tocqueville generally says what he means in fairly straightforward language. But one thing that may not be obvious is that almost every time Tocqueville says something about America, he is comparing it to France. If he were to drop his elegant style and speak more bluntly, he would say, listen, France, if you want to see how to protect freedom from the dark side of democracy, look at how they do it in America.

But now, almost two centuries later, are there lessons we Americans can learn from Tocqueville?

I think so. There is a lot of wisdom in the 676 pages of Democracy in America (I recommend the English translation by Harvey C. Mansfield and Delba Winthrop). But if I had to boil it down to one word: mores.

Tocqueville starts by examining the institutions and operation of American government from the township up to the federal government and continues with a discussion of the advantages and disadvantages of the U.S. Constitution.

But he really gets down to the nitty-gritty in Volume 1, Part 2, Chapter 9: On the Principal Causes Tending to Maintain a Democratic Republic in the United States. Here Tocqueville tries to distill the essence of what makes America a successful democracy:

American laws are therefore good, and one must attribute to them a great part of the success that the government of democracy obtains in America; but I do not think that they are the principal cause of it. And if they seem to me to have more influence on the social happiness of Americans than the nature of the country itself, on the other hand I perceive reasons for believing that they exert less [influence] than mores. (294)

You may be thinking, what the heck are “mores”? It sounds like a dessert you eat on a camping trip.

Fortunately, Tocqueville tells us exactly what he means. “I understand by this word [mores] the sum of the intellectual and moral dispositions that men bring to the state of society.” (292) Today, Webster’s defines mores as “the fixed morally binding customs of a particular group.”

We don’t have to guess how important mores are to Tocqueville because he tells us explicitly:

I am convinced that the happiest situation and the best laws cannot maintain a constitution despite mores, whereas the latter turn even the most unfavorable positions and the worst laws to good account. The importance of mores is a common truth to which study and experience constantly lead back. It seems to me that I have it placed in my mind as a central point; I perceive it at the end of all my ideas. (295)

But even assuming Tocqueville was right, how do we apply this lesson to our present difficulties?

Trouble is, we don’t use the word “mores” much today. But we have a word that means something very close to what Tocqueville was talking about: norms.

Granted, it’s not an exact equivalent. When we talk about norms, we primarily mean unwritten rules that the politicians follow. When Tocqueville talks about mores, he’s referring more broadly to the beliefs and practices of the people and the politicians. But I think it’s fair to say that norms are a close cousin to mores.

So, to adjust and restate Tocqueville’s thesis in contemporary terms: laws are important to preserving freedom in a democracy, but norms are more important.

This is an important lesson, especially for lawyers. As practitioners of the law we tend to assume the law is what really matters. And it does matter. But perhaps norms are even more important.

Ok, norms are important, you say. But that’s too abstract. Which norms exactly? What are the norms that help maintain a democratic republic in America? And how do we enforce those norms?

Check back with me in two years.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.  

These are his opinions, not the opinions of his firm or clients.

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Election Edition: Political Correctness, Paleo Correctness, Trump, and What All This Has To Do With Lawyers

Election Edition: Political Correctness, Paleo Correctness, Trump, and What All This Has To Do With Lawyers

Political Correctness is a Real Problem, But Embracing Prejudice is Not the Solution

This presidential election year has brought us a lot of talk about political correctness or, to be more precise, the backlash against political correctness, which, as you may have noticed, has helped fuel the rise of a very unlikely major-party presidential candidate.

This is not a political blog, so I won’t bore you with my opinions on the presidential race, but I do want to clarify some things about political correctness and how it relates to lawyers.

Before I run the risk of “burying the lede,” here’s my thesis: political correctness is a real problem (contrary to some commentators on the left), but the antidote to political correctness is liberalism (properly understood), not prejudice (contrary to some commentators on the right), and lawyers have a special relationship to liberalism. More about the lawyer part later.

My conservative readers will bristle at the “liberalism” part of the thesis, but let me clarify. I’m talking liberalism in the broad historical sense, as in “liberal democracy,” rather than the narrower contemporary political sense, as in “Mike Dukakis was too liberal to get elected” (anyone remember him?)

This broader liberalism gave birth to the very concepts of individual liberty and tolerance—concepts alien to most of human history—that we now largely take for granted. The two kinds of liberalism are related, but they are not identical. To make matters even more confusing, contemporary American “conservatism,” at least the intellectual variety, is partly a branch of historical liberalism.

But “political correctness” must also be defined. Unfortunately, the term has become almost generic, now sometimes used to mean any belief system that is rigidly enforced in some group. Originally, political correctness had a more precise meaning. It essentially meant “dogmatic liberalism.” It was also associated with a hyper-sensitivity about any perceived slight based on race, gender, sexuality, etc.

john-locke
John Locke

“Dogmatic liberalism” is in some ways an oxymoron. Liberalism—the broad historical variety—could almost be defined as a rejection of dogmatism itself. John Locke championed the concept of tolerance, which was largely a rejection of enforcing dogmatism of the religious variety. Although tolerance is now sometimes associated with relativism, toleration originally was not based on the position that all moral viewpoints are equally valid, but the idea that you could tolerate even fundamentally wrong viewpoints for the sake of greater goods, i.e. freedom and social harmony.

It is no accident that Locke was also the philosophical godfather of the founding principle of America: “inalienable rights” to “life, liberty, and the pursuit of happiness.” (Jefferson substituted the “happiness” part for Locke’s “property”).

Later, John Stuart Mill became the foremost philosophical spokesman for liberty—an old fashioned word for freedom—especially liberty to express different viewpoints on fundamental issues. So Mill would be surprised to see his liberalism morph into a form of dogmatism.

john-stuart-mill
John Stuart Mill

The oxymoronic nature of “dogmatic liberalism” reveals its great danger. But to understand that, we first have to understand the opposite of political correctness. It has no equivalent label, so I will give it one: “paleo correctness.” Paleo correctness is as old as human civilization. Every society has its basic myths, its “traditional” values, its prejudices and sacred cows. Throughout most of human history these values have been vigorously enforced through social, religious, and political coercion. Racism is perhaps the oldest and most common feature of paleo correctness.

This is not to say that paleo correctness is all bad. Every clan or nation needs a certain amount of paleo correctness to survive, both to maintain internal cohesion and to repel foreign enemies. Moral skeptics are not likely to be first in line to plug the leaking levee with sandbags, or to volunteer for military service.

On the other hand, the danger of excessive paleo correctness is obvious. Paleo correctness can easily become dogmatism and a threat to freedom. This danger is no less present in democracies, as Alexis de Tocqueville recognized when he described the tyranny of the majority.

tocqueville
Alexis de Tocqueville

Political correctness is potentially more dangerous than paleo correctness for precisely this reason. You expect the defenders of paleo correctness to be dogmatic, intolerant, and opposed to free expression. They make no bones about it.

Political correctness, on the other hand, is closed-mindedness posing as open-mindedness, intolerance posing as tolerance, dogmatism posing as skepticism (I stole this last phrase from Prof. Arthur Melzer, who used it to describe moral relativism). Thus, there is a certain element of deception to political correctness. It punishes free expression while pretending to champion freedom.

Political correctness came on the scene in the wake of the social and political upheavals of the 1960s, as liberal baby boomers came to power and started to codify and enforce the new norms that had replaced the old. The foremost—and most controversial—description and critique of political correctness is still Allan Bloom’s The Closing of the American Mind.

What Makes Political Correctness Dangerous

The problem with political correctness was that it sought to impose a rigid liberal orthodoxy in place of the old orthodoxy. Its adherents sought to enforce it with an almost religious zeal. Anyone disagreeing with its tenets was treated as a heretic to be punished and ostracized. If you were against gay marriage, for example, you were not just wrong, you were a bigot expressing a view that was no longer permissible. You might as well be defending the institution of slavery.

Naturally, conservatives heartily rejected political correctness, and in some ways even benefitted from using it as a foil. But how did the left respond to the rise of political correctness? Some denied that political correctness was a real phenomenon, suspecting it was just a bogeyman invented by the right, but this view was not realistic. I was a student on a predominantly liberal northeastern college campus in the early 1990s, and I can attest that political correctness was real, as the rest of America would gradually learn.

Others on the left acknowledged the existence of political correctness but denied that it was a problem. They embraced the new dogmatism as a good thing. But these people were never really “liberals” in the true sense. These were post-modern types more likely to read Nietzsche and Foucault than Locke and Mill. (The story of how the left came to embrace Nietzsche, the most right-wing of the great philosophers, is told in Bloom’s book.)

So how did true freedom-loving liberals respond to political correctness? Some simply cowered. They knew deep down that political correctness ran contrary to liberal values, but they were too fearful of offending the new orthodoxy to speak out against it. But some took a stand against political correctness, recognizing that it was a dangerously illiberal doctrine. Within the universities, Prof. Harvey C. Mansfield, Jr. has been an especially compelling critic of political correctness.

Of course, as political correctness made its way out of universities into American culture at large, the backlash was inevitable. At the risk of pointing out the obvious, the reaction against political correctness reached its peak this year with the selection of Donald Trump as the Republican presidential candidate.

The Peak of the Backlash

Republican primary voters were fed up with political correctness. For them, it was not enough for a candidate to be conservative (could you get any more conservative than Ted Cruz?), or merely to criticize political correctness. They wanted someone who would give political correctness the middle finger.

Trump fit the bill perfectly, both in style and substance. His most enthusiastic supporters were not looking to replace political correctness with freedom and tolerance. They wanted to double down on paleo correctness. (The phrase “double down” has virtually become a cliché as applied to Trump, yet it fits his style perfectly and therefore must be used.) And Trump did not disappoint.

But the paleo correctness advanced by Trump is a new, meaner variety, untethered from the moderating forces of civility and chivalry previously associated with “traditional” community values. Men of my grandfather’s generation had their prejudices, but generally they behaved like gentlemen. Now, not only is it ok to embrace your prejudices, you don’t have to pretend to be civilized about it. You can stoke the fires of traditional prejudice while simultaneously telling crude sexual jokes with Howard Stern.

This reinvention of paleo correctness is of course the wrong answer to political correctness. The problem with political correctness is its rigid dogmatism. Just as the answer to the old dogmatism was not to replace it with a new dogmatism, the answer to political correctness is not to embrace an even more prejudiced version of paleo correctness. Freedom and tolerance, not threats to loosen the libel laws, are the right antidotes to political correctness. Similarly, the antidote to the hyper-sensitivity of political correctness is civil disagreement (and a healthy sense of humor), not hurling even cruder insults. In short, the answer to dogmatic liberalism is true liberalism.

This is not necessarily to say that liberalism is the highest philosophical expression of the truth about human nature and politics, but good luck trying to build popular support around say, Aristotelianism. Considering the modern dangers of totalitarianism and nuclear weapons, liberalism will have to do.

So What Does This Have to Do With Lawyers?

Lawyers in particular have a special role in defending individual liberties and tolerance. If Trump somehow succeeds in imposing a religious test for entry into the country, we know who will be the first to challenge it. Just ask the general counsel of the New York Times. He was the one who responded (here) to Trump’s threat to sue for reporting—reporting!—that two women made some very specific allegations of sexual assault. Ultimately, rights like free speech and religious freedom—and yes, even the right to bear arms—mean little if they are not legally enforceable rights, and enforcing legal rights requires lawyers.

But what kind of lawyers will defend the unpopular or persecuted? The legal profession is unique in having a very specific ideal that is embodied in a single fictional character. His name is Atticus Finch. He is the personification of defending individual rights and the rule of law against the forces of prejudice, bigotry, and lawlessness. Liberalism is uneasy with the ancient notion of virtue, but Atticus Finch’s liberalism is his chief virtue.

Part of what makes Atticus Finch a compelling ideal is that he is essentially apolitical, and therefore he can appeal to lawyers across the political spectrum. He is not an outside agitator, nor is he a community activist. He has no apparent political agenda. He makes no claim to be a Thurgood Marshall taking on a test case as part of a larger movement. He is simply a small town lawyer who does his job by standing up for what is right and defending the rights of a man who is the victim of community prejudice, i.e. paleo correctness. Politically, Atticus could be liberal or conservative or anything in between; we never find out because it is irrelevant to the story. (Yes, we do learn he’s an excellent shot, but in the 1930s even Democrats still shot guns in the South, so that doesn’t really tell us anything.)

Whatever happens in the presidential election tomorrow, political correctness will still be a problem, and the backlash to political correctness will still be a problem. America will still need liberalism, properly understood, we will still need lawyers, and we will still need Atticus Finch.

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IMG_4571

Zach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. 

These are solely his own opinions, not the opinions of his firm or clients.