A Kiss Is Not a Contract, But Marriage Is

Like many of my posts, this one is inspired by social media. The emergence of social media is revolutionary for many reasons, but, as the name implies, social mores still apply. You simply can't say everything you want to about a subject, or at least you can't say everything you want if you also want people to like or respect you. This is especially true when the topic you are going to critique is an institution that many people are heavily invested in, to wit, the institution of marriage.

But this blog fears no such consequences, largely because the stats indicate that no one is reading it (only a small exaggeration with the exception of, for some reason, my juvenile post about theater people promoting their projects featuring Homer Simpson gifs ... woohoo?). So let's dive in, shall we?

[P]renups are to marriage as condoms are to sex: sure, they're a good idea, but they're a real mood-killer. 

Recently, a lawyer friend of mine posted on Facebook a lighthearted, but timely, warning to think twice about using the holidays as a time to propose. One of the several reasons he cited, in true lawyer fashion, was a perfectly valid point that giving an engagement ring as a Christmas gift undermines the ability to recover the ring should the engagement be later called off. This is a somewhat interesting topic itself and is well explained here.

I gave a similarly lighthearted response opining that maybe the newly-minted fiancée, in her holiday and engagement-induced euphoria, wouldn't mind signing a brief statement of understanding that the ring is given on the express condition of the occurrence of marriage. After a few more tongue-in-cheek riffs on the romance of legally-binding agreements, the OP's fiancée responds, in an unfortunately serious and somewhat stereotypical manner:

Many of Future Mrs. OP's friends quickly agreed, and, of course, so did Mr. OP (he's not an idiot). The subject quickly turned to the mutual disdain of prenuptial agreements for essential the same reason. Though a bit eye-roll-inducing, I am thankful for her post, because it means I don't have to invent a straw man, er, straw woman, upon which to base this gripe fest legally-relevant post.

Women, speaking in generalities, and even many men find the concept of prenups and conditional gifts entirely unromantic and contrary to the very essence of marriage, which according to modern social mores is supposed to be an unqualified and unconditional expression of love and devotion. As such, any contemplation of the possibility that it just might not work out is utterly taboo. A contract? Ugh. Lawyers? R.I.P. any chance at post-engagement coitus.  

But this is really not that much different from anyone contemplating a major legal event, such as purchasing a business or forming a partnership. At the beginning, the relationship is all smiles and firm handshakes as the parties are excited about the deal. After all, why would you form a partnership with someone you didn't trust?

But you would, of course, be an idiot to rely solely on trust in such a situation. If you had any sense at all, you would sit down -- with each other at least but hopefully with a lawyer -- and write down the ground rules of such an arrangement. You do this because, while you are (hopefully) wildly optimistic the deal will succeed, you know that circumstances change, people change, excitement gives way to skepticism, and you might need an exit strategy. Call it being cynical if you will, but I call it pragmatism.  And, I don't know about you, but it's a trait I find attractive, at least in moderation.

So why doesn't the same concept translate to marriage? I would guess that, to a lot of people, prenups are to marriage as condoms are to sex: sure, they're a good idea, but they're a real mood-killer. But also, I suspect most people fail to conceptualize marriage as itself a contract, with built-in terms and conditions and hefty penalties for the unwary. The law has a decidedly unromantic (and pretty archaic) understanding of marriage as an economic arrangement, in which two people merge into a single economic entity: sharing income, property, and expenses (some exceptions apply, of course). If that arrangement should end, the assets are divided accordingly -- that is, (for the most part) equally.

This "equitable" distribution can lead to some wildly inequitable results. Suppose a couple has no children, one partner works hard in a lucrative position (a medical doctor perhaps), while the other decides he is free to pursue a career less dependent on economic remuneration, like, say, blogging. Is it fair that, if the marriage ends, that he should get half of the big house in the suburbs and the nest egg that are almost solely the results of her hard work? Wasn't his freedom to pursue his own career goals, at least for a time, reward enough? Let alone that, in some jurisdictions and under some circumstances, she could be on the hook for spousal support, aka maintenance or alimony.

Modify that scenario to one where the bread winner spouse-to-be brings in children from a previous marriage. Certainly, the non-biologically related spouse will provide some support in raising those children, which undoubtedly has economic value, but what about when the marriage ends? The kids will (presumably) be going to live with the biological parent, meaning her expenses will rise while the step-parent's responsibilities will cease. Is it proper that the step-parent take half the house and assets from a the ex-spouse that is left to continue supporting her children, and all that entails (college -- eek).

This is exactly why this stuff needs to be sorted out ahead of time, romantic or not. It's not a matter of whether you are going to enter in a marriage contract; it's a matter of whether you are going to dictate the terms and conditions of that contract or accept the default terms when you say "I do."

"By the present communiqué ...": The Disconnect Between Laypeople and the Law

Welp, that ought to do it!

This blog has undertaken to explore the public's tenuous grasp of copyright before. But the recent resurgence of the above Facebook hoax has caused me to wonder more broadly about why there seems to be such a disconnect between laypeople and the law. (If you are not sure what's wrong with the above picture, I would invite you to do a search and read the far more sweeping tear-downs of the above nonsense).

Sure, I could sit back and ridicule the people who posted this thing, but the above hoax has affected a large enough swath of my friends list (to include TWO recent graduates of my law school [exasperated sigh]), so as to legitimize it as a threat to otherwise reasonable people. In their defense, most of them, after myself or one of their friends informed them -- as politely as possible -- that they were an idiot, responded with something like "lol, you're probably right ... but it couldn't hurt."

Yet, ultimately, they did not take it down. This implies that some small part of them believes that this arcane, jarbled mix of gibberish and sloppy citations to inapplicable foreign law and irrelevant domestic law that they unilaterally microblogged to the world might somehow protect them from the mysterious terms and conditions that they clicked agree to years ago and never read.

Now, this issue may implicate a host of others, such as the very real and kinda scary privacy and ownership concerns arising in a digital world, or the infuriating tendency of people to re-post bullshit without taking a second to Google the damn thing (when they are already on the internet)!  But more to my point, it raises real questions about the public-at-large's staggering rate of legal illiteracy.  To many, the above "communiqué" (as a previous iteration of the hoax called itself) is how they think the law works: you can just say some magic words and bask in legal sanctuary.

Now, maybe you're saying "Hey, legal illiteracy is good for lawyers, right? The less they know, the more they need you!" Well, not always. To initiate a legal relationship (i.e., hire a lawyer) the client must first have the legal wherewithal to realize he has a legal issue. This may be clear when the client gets arrested or receives a summons. And the billboard lawyers and the media have done a pretty good job of informing people to call an 800 number if they should slip and fall or get into a serious accident.

But in the modern world, the law touches everything. If you're a writer, a photographer, or an artist of any kind, you need to be educated about copyright. If you're an inventor, patent law. If you're a business person, large or small, you need to have some understanding of corporate structures and governance, contract law, local zoning ordinances, licensing requirements, insurance, employment law, ERISA ... the list goes on.  And everyone needs to understand tax.

But, by and large, people not trained as lawyers or who do not work with lawyers frequently fail to conceptualize a lot of these issues as legal ones for which they could or should seek a lawyer's help. And thus, they don't, or at least they don't until they do get arrested or receive a summons and frantically call a lawyer well after the opportunity to painlessly rectify the situation has passed.

Finally, the other part of the problem is the law itself. The continuing expanse of the law into every aspect of our lives is, for better or worse, unavoidable. But the law doesn't expand neatly or comprehensively, it expands amorphously like an amoeba grotesquely enveloping new particles of jurisdiction with its pseudopods. In so doing, it synthesizes it with the glob of existing law, much of which is based in centuries-old common law and other legal traditions.

In the end, you end up with a bunch of rules that come off as overly formalistic (disclaimer of warranties and service of process rules come to mind) that leave no room for common sense and that empower the legally-literate to say the right thing or file the right form to defeat on technicality an otherwise righteous opponent's interests. Not only is this inherently unfair, but it lends itself to the expectation that there are always some loophole that a crafty lawyer can exploit -- which is another toxic client mindset. Google "sovereign citizens" (the likely perpetrators of the above hoax) and you can learn about whole groups of people who believe that overly formalistic nonsense, like the existence of gold fringe on an american flag, can be invoked to exempt oneself from all manner of legal requirements.

Over recent years, however, many consumer-protection laws have been enacted to, to some extent, relax the harsher operations of law against non-business entities (i.e., regular people). And from time to time, legislators even heed advise from legal reformers and make the law more intuitive and fair. Thus, when someone tells you that you can "get out of jail free" by using some arcane legalese, and you are tempted to try -- please call a lawyer first. But barring that, try good old snopes.com.

The Supervising Attorney, Your Client

My research and writing professor in law school, who -- as good professors often are -- was both brilliant and slightly mad, explained to the room of bright-eyed future lawyers that most legal writing has two audiences that you must keep in mind: the judge (or whatever other manner of arbiter), whom you need to convince that your position is the correct one; and the client, whom you need to convince that you are doing your job.

As he often was, my professor was correct, but his explanation was not complete. He neglected to mention (or maybe I wasn't paying attention) that there often more than one "client."  For junior attorneys, the most important of these "clients" is the partner who is managing the matter and assigning you the work.

The "partner as a client" school of thought works on a few levels. First and foremost, the partner (along with his colleagues) is literally the one paying you for your legal work; thus, in a real way, they are your customer. You need to make sure that, of anyone else (the judge, the actual client, the actual client's boss) you make the the partner-client happy. While you may instinctively think that the desires of all of these clients should be aligned, there will be many instances where the way the partner wants you to do something doesn't make sense to you (writing a 50-page brief when a 10-page one would do), doesn't best serve the needs of the judge (she has to read 50-page brief saying what could be said in a 10-page one), or doesn't serve the best interests of the client (spending money for all the additional time you spent writing those extra 40 pages).

What should you do when this situation arises? Well, that depends on your situation. If you are a brand-new law clerk or junior associate, you should probably just say "yes sir/ma'am" and do your best to give them a product in line with their expectations. I know it is hard: throughout school, college, pre-law school professional life, and maybe even in law school, you've been used to being the smartest person in the room. And surely they hired you with the expectation that you will be contributing to projects with your own professional judgment, which, to an extent is true. Surely if you see a glaring in error in their understanding of the facts or their legal reasoning, or, better yet, you find something that will amplify or support the argument they want to make -- you should speak up.

But, as will be common, if you just don't like the way they've written or organized something, or if you don't understand why they've put in ten seemingly-redundant clauses in the agreement, just shut up and roll with it. Maybe you're right, maybe their writing is crap, and maybe their clauses are insipid. Conversely, you could be viewing some language as trivial that the partner, with his experience, has stumbled across before and knows that importance of.  More likely, its some combination of the two. But I can tell you (from experience) that if you give the partner something completely novel and/or redesigned instead of what the partner has indicated that he wants (or assumed that you knew) because you think it works better -- you will find yourself redrafting after being dressed down, and possibly seeing some of your billed hours on the cutting room floor.

In this way, you nurture the relationship of your partner-client in much the same way as you would for your client-client. You should do this in other ways too: communicating clearly and consistently, but taking care of manageable issues yourself; expressing excitement and appreciation when they deign to give you some new piece of work, while unobnoxiously cross-selling other services you could be doing for the client or the matter; and -- most importantly -- giving them bills/time entries that they can justify or at least live with.

Lastly, you will have to decide how to handle problem "clients." Client-client and partner-clients can both be real thorns in your side for a variety of similar reasons: they come to you with impossible situations or unrealistic deadlines, they undermine your conclusions and/or disregard your contributions, they are rude, they are unavailable, or -- worst of all -- they take issue with your bill. You will experience these with some frequency and you will need to learn how to deal.

Your default setting should of course be, especially if you are a junior associate, to accept these foibles as part of the job and do your best under the circumstances. That said, forgive but don't forget.  If the same partner consistently causes you problems, you need to assess the value of the relationship.  Is s/he feeding you a significant amount of work and is s/he billing that work? If so, then the answer might still be to suck it up, buttercup.

But if the answer is no, then you need to get out of this dysfunctional relationship. A dozen hours a year is not worth the stress of a bully partner demanding that you drop other (higher reward) assignments to work on his and then giving you grief for your necessarily-rushed product.  You need to tactfully dump him. Next time he asks you for an assignment, give him a timeline that you know he won't like: "No problem, Bill, though I am pretty swamped, is sometime next week OK?" Partners follow the path of least resistance with associates, and if you're no longer the one-stop last-second-assignment shop he's used to, he will soon stop knocking at your door. (Conversely, if you have a partner relationship that you want to nurture, be sure to set ambitious but attainable timelines).

Worse than this, and sneakier, is the deadbeat partner. This partner knocks at your door with a smile and time-intensive assignments, which you complete and bill appropriately.  All good, at least until you're looking at your time stats for the month and you notice large chunks of this time was written off. Now maybe it's a one-time thing; maybe something came up in that billing period which caused the firm to go way over budget and everybody had to eat some time for the sake of keeping the client -- it happens, probably a lot.

But if it's more often than this, and a particular partner is mowing down large swathes of your time every month -- you are essentially working for free. The firm wouldn't tolerate a client that didn't pay it's bills, and you shouldn't tolerate a partner who doesn't pay yours. You can attempt a surreptitious break-up as above, but in this case, you would probably be fully justified in being frank with the assigning attorney -- tactfully frank, of course. It's as simple as saying, "Hi Billina, I really appreciate your giving me this work, but I can't help but notice a lot of my time isn't getting billed." If nothing else, this might invite some explanation of why your work isn't getting billed.

If that explanation is not satisfactory, you might say, "I certainly understand that, Billiard, but I am falling behind on my billable hours, and until something changes, I will have to give priority to matters that I can bill." I can't say this won't lead to some hard feelings, but the partner has to understand. You are not a summer intern (anymore), your work isn't free, and your job depends on meeting your quotas.

Then again, I tend to be the kind of person who decides to speak truth to power at inopportune times, so maybe you would be better served to come up with some excuse.  But like all dysfunctional relationships, it doesn't matter how you get out, it matters that you get out.

Your Theater "Friends" Be Like

Ah, theater people. Some of them are truly the most wonderful and eclectic people you'll ever meet. I met most of my best friends doing theater, an illustrious group that includes my wife (aww, your wife is your best friend -- I know, barf).

But not all theater people are your friends.  Some are your "friends."  These are the people you gab and joke when you're working on a project together, or if he or she has a project that he or she needs your help with. But if not, you pretty much don't interact.

Except that, in the modern social-media world, you still do.  And when they've got a show coming up it's all:

COME SEE OUR AMAZING SHOW !!!!!!11!!!!1!

But then when YOU post about your upcoming project, they are all like:

So, don't be a theater "friend."  Be a friend.  Support each other and maybe cool it a bit with the self-promotion ... unless it is actually "AMAZING!!!1!!!"

Copyright: The Law We All Pretend We Don't Understand

In a recent decision, the U.S. Supreme Court found that Aereo, Inc., violated copyright law by allowing subscribers to stream copies of television programs without a license from the copyright holders.  If this doesn't sound like a surprising result, then pat yourself on the back -- you understand copyright law better than 99% of Americans [eds. note: statistic not intended to be a factual statement].

Now, supporters of Aereo would claim that is an oversimplification.  They would say the television programs provided by Aereo were obtained from over-the-air broadcast by its centrally-located warehouse of antennas, and that Aereo was, in effect, merely renting out the use of an antenna and a DVR to subscribers, albeit on an ad hoc basis.  Clever -- but not clever enough, said the Court, CATV (community antenna television) companies already thought of basically the same thing nearly 70 years ago and Congress dealt with that Copyright nuance in 1976.

Now Aereo, after sulking a bit on its website:

... is back at it, apparently seeking a compulsory license as a CATV provider.  Good for Aereo, rolling with the punches like that.  It will be interesting to see if how this new approach pans out.

But I tell you that story to tell you this one: people generally have no understanding (or pretend to have no understanding) of copyright law.  Why is copyright such a hard thing for people?  In my night life as an amateur stage actor/participant, copyright law permeates almost every aspect of the experience: the shows are copyrighted, so are the songs, the music, the dialogue, the logos, and the promotional art. Yet, I am constantly amazed how ignorant even seasoned theater people are of basic copyright concepts.  

In fact, I shouldn't even say "concepts," I should say concept -- singular.  And that concept is this: if you didn't create it, you need to get permission to use it.  

Now, I know the law is usually excruciatingly complicated and filled with nuance.  And the Copyright Act is no different.  It talks about the five rights granted to copyright holders (namely, the rights to reproduce, to create derivative works, to distribute, to perform, and to display) and, in its attempt to be inclusive but also fair, further complicates matters by talking about whether a performance is "public" and uses arcane words like "phonorecords."  And, of course, there are loopholes: works that have fallen into the "public domain" are unprotected and people may make "fair use" of otherwise copyrighted materials.

But what you need to remember is that the public domain and Fair Use doctrines are exceptions to the general rule I stated before.  Want to do Shakespeare?  OK, you are probably in the clear as it has long since fallen to the public domain.  In fact, most everything (except the "Happy Birthday" song for some god-forsaken reason) published before 1923 is in the public domain.  Many things after that are in the public domain too, but the analysis is a bit more complicated due different copyright regimes that existed before the 1976 amendments (one possible source of lasting confusion).  And Fair Use is much more limited than you probably think: generally it refers to use for a limited or “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. 

"There, that ought to do it!"

With all this in mind, here are some things I too frequently hear from my theater acquaintances:

• "We're just doing a song (or two) from the show, and we paid for the sheet music, so we don't need to get permission."

• "We are not charging for admission" or "Admission is by 'donation-only'" or "This is a closed performance" ... "so we don't need to get permission."

• "We are just doing a 'preview' performance for a show we [will do, might do, have done], so we don't need to get permission"

• "This line from the show always bothered me, so I'm cutting it.  It's just one line, I don't need permission."

If you haven't guessed, all of these assertions are -- barring some stipulation in your agreement with the applicable rights holder or a "performance-rights organization" or PRO (in this situation, ASCAP most likely) -- patently false.  Copyright law is not concerned whether you make money (and even if it was it would see through your 'donations-only' facade), nor is it concerned with whether you had permission at one point or intend to get permission later.  You violate copyright law if you perform publicly a song or a scene and you do not have permission of the content creator or the entity that maintains the content creator's rights to do so.

So get permission first -- it's the right thing to do, and you know it.

Hobby Lobby: Christians Get Two Bites at the Apple

I know I'm beginning to sound like a broken record on this blog.  I swear I'm not anti-Christian.  I have many good friends who are Christian (yikes, what a cliche defense).  Many, even the majority of, Christians are decent people who don't attempt to beat their neighbors over the head with their faith.

What I have a problem with is the idea, propagated by the talking heads, that there is some vast movement in U.S., apparently with President Obama (also a Christian) at the helm, to marginalize and degrade Christians. In reality, Christians have always enjoyed a privileged status in this country, from a near monopoly on political power to being allowed to proselytize during official legislative proceedings.  As you can see, I've said my piece on the issue, and I was ready to move on to some of the other (purported) topics on this blog.

Alas, then this happened: 

A party line 5-4 decision from the Supreme Court held that a closely-held corporation cannot be forced to pay for coverage of certain contraceptives if it conflicts with their sincerely-held religious beliefs.  For now, at least, the majority claims the ruling is limited in scope to "closely-held corporations" (a kind of nebulous term in its own right) and to contraceptives (i.e., you can't claim that vaccinations are against your religion so you don't have to pay for them). It is also NOT based on the First Amendment Free Exercise Clause, but rather on the Religious Freedom Restoration Act (RFRA).

RFRA was passed by Congress in response to concerns by paranoid religious organizations in response to the decision in Employment Division of Oregon v. Smith, which stood for the proposition that neutral laws of general applicability do not violate the Free Exercise Clause just because they arguably tread on a person's religious beliefs.  That opinion was penned by the most liberal, godless commie to ever stink up the chambers of the Supreme Court: Justice Scalia [wait, what?].  Like many of us, Scalia seemingly has come to regret his youthful folly and joined Alito's majority opinion in this case.

So these women are on their own because their bosses think that God thinks that contraception is murder? (OK, that's a bit heavy-handed -- some of the drugs at issue straddle the "birth control or abortion?" line). Well, no, it seems.  The decision seems to volley the ball back to the legislative or executive branch to either amend the law or its application, or to provide government funding for these products, which insurers are required to cover even if employers don't pay for such coverage.

I agree.  So pass a version that explicitly excludes the application of RFRA!

So, wait, the end result is Hobby Lobby gets a discount on its insurance mandate because it doesn't have to pay for these contraceptives -- and the government has to foot the bill?  Should you really be celebrating this, Conservative Christians?  Not a single "abortion" will be prevented and the federal government will have to spend more (of your tax dollars) to subsidize the insurance shortfall of these deadbeat companies.  It sounds like the opposite of what you claim to want ... unless ... unless, what you really want is what the Hobby Lobby opinion gives you: more precedence of privilege.  Not only do you get to participate in a democratic process that you dominate, but when that process fails to give you what you want, you can object on religious grounds.  And that's something those damn atheists will never have.

Biblical Response to Preachy Christians

I thought this was Amurica!

Living in the United States, there is just no escape from Christians. They are everywhere. Seventy-three percent (73%) of Americans identify as Christian. Eighty-eight point eight percent (88.8%) of Congress is Christian. And a whopping 100% of American presidents have been Christian. How is a non-religious person to navigate day-to-day interactions without feeling hopelessly outnumbered?

Well, thankfully, a good portion of those Christians are what I call "not complete dicks about it." And God bless them for that. "Not being a complete dick" about your religion entails:

• Realizing that not everyone has "faith" in the fundamental truth of some old, variously translated tome.
• Realizing that even fewer people have faith in the additional little nuggets of dogma that your particular sect has adopted since that tome's creation.
• Generally being respectful of the fact these other people who don't share your beliefs would prefer not to have to hear about them.

Unfortunately, that leaves plenty of room for the remaining Christians who are less aware of these rules, or worse, Christians who believe they need to educate the heathen masses about God's occasionally murderous tendencies hatred of gays complete indifference to human suffering word. And everybody has a few on their social media feeds.

So the next time you see one of their (not-so) passive-aggressive Bible verse or general "Hooray, I love Jesus" posts, consider speaking to them in their own language and hitting them with this bad boy:

And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full. But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you. 

Matthew 6:5-6. A beautiful little admonishment, right (purportedly) from the mouth of Jesus, not to wave your faith in people's faces. This line is largely glossed over by the more evangelic Christian sects even though it shouldn't be: it's part of Jesus' "Sermon on the Mount" in which he gives us such gems as the Beatitudes and the Lord's Prayer.

So give it a try.  It's worth a shot.*

*Probably not worth anything.

Support the Second Amendment (Without Being an Idiot): Arguments You Should Stop Making

If only Abel had a gun!

If you've been reading my stuff (and my blogs stats would suggest that you aren't), you might assume that I am a typical liberal.  Now, I eschew labels, but as labels go that one would, for the most part, serve pretty well.  But one issue where I don't toe the party line is, as you may have guessed from the title of this post, I support the right to privately own and carry guns.

Now, we can debate the origins of the Second Amendment or the related, but distinct, common-law right of self-defense.  In sum, I think it is a tortured reading of that amendment to say that it only allows gun ownership as it pertains to being part of a militia, or to imply that the "founding fathers" were worried about protection the citizenry's ability to hunt or shoot skeet.  No, an honest and thoughtful reading of the Amendment reveals that it gives the right, not only to own, but to "bear" or carry guns.

But that's a bit esoteric for my tastes.  The real reason I support the ability to carry guns is much more practical: I should be able to walk down the street at night secure in knowing that I can defend myself if I need to.  I say "I should" because, well, I generally don't (carry guns or walk down dark streets, I suppose). I frequent many places daily where guns are forbidden by law (schools, courts, banks), and it is simply too problematic for me to have to figure out a way to safely stash my gun while I'm doing those things.  I would also like to take one on the occassional cross-country trip the family and I go on (deserted gas stations at night are pretty scary), but lack of uniformity or reciprocity among many states' gun laws make that too much of a risk too.

But that's not the worst thing about being a "gun rights" person (guns have rights?), no, the worst thing about supporting private gun ownership is the strange bedfellows you make.  I talking about the "gun nuts": the angry, loud-mouthed, semi-literate, overwhelmingly white male contingent from whose cold dead hands you (read: Obama) can pry their guns.  Because, as Frederic Bastiat said: 

"The worst thing that can happen to a good cause is, not to be skillfully attacked, but to be ineptly defended."  

And for many of these guys, spelling multi-syllable words is prohibitively difficult; forming a cogent or thoughtful argument that goes beyond regurgitating bumper sticker rhetoric is effectively impossible.  While these "arguments" may be fun to volley back and forth among like-minded folks on Facebook or Joe the Plumber's blog (no link intentional), it does nothing to enlighten someone who does not already share your position and is more likely to alienate them.  Take it from a liberal, pinko, bleeding-heart commie like myself. 

So, in the interest of raising the level of debate, here are some terrible pro-gun arguments that you should stop making:

• "You can kill people with knives, cars, rocks, baseball bats, certain large fruits (etc.), but we don't ban those things."

This argument (featured in the billboard posted above) is a variation of the NRA mainstay "guns don't kill people, people do."  While that mantra has its own shortcomings, this particular variation is more annoying because it instantly undermines the speaker's credibility.  Can you honestly not discern the difference between a baseball bat and a gun?  In case you can't: one is designed to hit a horsehide (now cowhide) ball as part of a mildly-fun-to-play and mildly-boring-to-watch game, while the other was designed to quickly and easily kill something.

You know what else kills people?  Grenades, bombs, nuclear weapons, smallpox -- and we most certainly ban people from owning those things.  Granted, I agree with you that a gun (or at least most guns) fall somewhere closer to the middle of a spectrum running from fruit to biological warfare in that they have the ability to be more precisely employed against a deserving target.  But stop pretending they aren't dangerous because they are.

• "We should stop trying to keep guns out of schools and start letting Jesus in."

This argument (also featured in the picture above) is what I call "doubling down on stupid."  First, it is rarely advantageous, when discussing a serious issue, to buttress your argument with a different party platitude that your opponent is also likely to oppose.  Second, you criticize (perhaps rightfully) my liberal brethren's creation of gun-free zones at places such as schools, because it is silly to think that a criminal will respect such rules.  Fair enough.  But it is equally silly to think that someone who has the psychological makeup to murder a bunch of strangers will be placated by learning about dinosaurs on Noah's Ark or singing a few verses of "Jesus Love Me."  

And if, god forbid, it were my kids that were affected by one of these incidents, and you said within my earshot something like "If only they taught these kids the bible this wouldn't have happened," I would find whatever semi-lethal object discussed in the point above that was nearby and bludgeon you to death with it for implying that my child died because she didn't believe hard enough in your particular deity.

And lastly, Christians, PLEASE stop acting so persecuted.  You had (and continue to have) a good run at dominating the politics of this country, so don't get mad that your hegemony is starting to weaken.  You can't sucker-punch someone in the mouth and then cry foul when he starts swinging back. 

• "I oppose any form of gun control."

OK, wait.  You just went through this whole spiel about how guns aren't bad, that good guys need guns, and we should just keep them out of the hands of bad guys.  Assuming that won me over, the next question is "OK, what are we going to do to keep guns away from bad guys?"  If your answer is "Nothing," then maybe you are the are the heartless gun nut that the left sees you as.

People who are serious about protecting gun ownership long-term should get on board and help design a better screening process to ensure guns are only possessed by people who ought to have them.  That means a comprehensive, nation-wide, screening and perhaps licensing process.  There are no interstate customs agents; gun runners buy guns in places with loose gun restrictions and sell them to criminals in places with stricter laws.  A chain is only as strong as its weakest link, and some links are laughably weak.  To say you oppose gun control means you oppose all sorts of common-sense measures like universal background checks, which would make you a complete moron.

You're not a moron are you?  If you're reading this, of course you aren't!  You are wonderful and brilliant and smell like that one plant my mom kept in the kitchen before the dog ate it.  So act like it.

Facebook at Work and other High Crimes and Misdemeanors

It happens every now and again, I'll meet up with an old classmate or a friend (who I'm also a Facebook friend with) and, as it does, the conversation turns to work:

Friend: "So how's work going?"

Me: [Something non-committal or tongue-in-cheek like:] "Well, they haven't fired me - yet!"

Friend: "I see you on Facebook a lot during the day."

Me: ....

You caught me.  I go on Facebook during work. I know, I know, it is unfathomable that during a nine-hour workday I might take 5-10 minutes to write up a quick post about something I found to be interesting, funny, or otherwise noteworthy (that isn't to say it is). I do admire your slavish dedication to your work, and I am sure your day is completely devoid of any non-work related activities such as web-surfing, texting, personal phone calls, smoke breaks, coffee breaks, personal business, errands, water cooler gossiping, and the like. Although I suppose the difference between my Facebook posting and any of those activities is that I would have no evidence that you were doing any of them. For all I know, you are a busy little bee at work, busting your ass for the bottom line. I tip my hat to you, you obedient cog in the machine of corporate productivity.

So, yeah, you're full of shit.  First of all, you see me on Facebook?  And how is it that you are seeing me? Are you checking your newsfeed after work, looking at the timestamp on my status, and doing the math?  If so, I'm flattered by your stalker-like fascination with me.  You are definitely an anomaly, judging by my blog stats; the world could use more of you. But more likely you see these statuses because you, yourself, are on Facebook during the day too. Granted, you are smart enough not to post anything, lest your moral superiority be compromised.  Well, judging by the amount of ignorance that permeates my Facebook feed, that does take a certain amount of self control, so kudos.

But let's cut the crap, can we? Of employees between the ages of 18 and 35, approximately 73 percent reported spending time inappropriately at work on a daily basis. And, of course, that's just those with the stones and/or the self-awareness to admit they are doing so. Some cite that they feel underutilized at work. That's not a common theme for associates at law firms. Rather, I would posit the real reason for such mental restlessness is that such behavior is completely natural.

Those who study these things have known for a long time that your brain craves downtime. The linked article from Scientific American is very interesting:

To summarize, Americans and their brains are preoccupied with work much of the time. Throughout history people have intuited that such puritanical devotion to perpetual busyness does not in fact translate to greater productivity and is not particularly healthy. What if the brain requires substantial downtime to remain industrious and generate its most innovative ideas? "Idleness is not just a vacation, an indulgence or a vice; it is as indispensable to the brain as vitamin D is to the body, and deprived of it we suffer a mental affliction as disfiguring as rickets," essayist Tim Kreider wrote in The New York Times.

The article is admittedly geared more toward taking more substantial breaks from work -- days, weeks, or (gasp) months as opposed to the ADHD-like tab opening that comprises most of my goofing off at work. But I would argue that such activity is no less necessary to my mental health, and ultimately my ability to think clearly and creatively, abilities that are vital to most professions, but definitely the law. Just like manual laborers must take breaks to rest, more cerebral (or at least sedentary) laborers must do the same.  Your muscles can't work for nine hours straight, neither can your mind.

And the mind is much more fickle than any other muscle.  Sometimes you have to kick it in the cerebellum every five minutes to keep it going; sometimes, once it starts, you can't stop it.  Much better to embrace our mental rhythms and work with them, instead of against them, don't you think?  And if you agree, why don't you share this on Facebook? #shameless

 

 

"Pay Attention to ME!": Attention-Seeking Behavior and Theater, Blogging, Life

Is it working?

Despite the partial theater theme in this blog's title, I have yet to talk about that area of my life very much. Part of that is circumstantial, I suppose, I usually write posts in my downtime at work, and my mind is focused on work-related (lawyer-y) issues. The other part is that I haven't really written very much ... yet. In any case, today's post shoots at the heart of local theater's very existence: our need for attention.

I think it is comical, and even a bit scary, how far socialization into polite society requires us to mask our basic desires. Despite mankind's creation of civilization, our biology is still that of an animal. And like other animals, our instincts drive much of our behavior.  We crave food, of course, and (at least in our part of the world) that instinct is easily satisfied, so easily in fact that obesity is an epidemic in America. We crave sex, which, unless you're Wilmer Valderrama (for some damn reason), is a trickier proposition for modern man. But even from the time we are little children, long before the urge to smush our private bits into someone else's presents, we crave attention.

Why do we crave others' attention so viscerally? No doubt it is an evolutionary advantage to be adept at drawing attention to oneself; a child who can demand attention effectively is more apt to have his needs met and survive to maturity. Equally as likely is that attention-seeking behavior is a precursor to sex-seeking behavior. See, e.g., the majestic peacock:

Hey baby.

But whatever the reason, attention is vital to us. Accordingly, lack of attention causes some real, if occasionally "first-world," problems, such as the one addressed by this NY Times article: Study Finds Being Ignored on Facebook May Lower Self-Esteem. And while little kids have cuteness and less socially-imposed restrictions in their battle for attention, we adults are forced to be a little more creative. Because while identifiable attention-seeking behavior is cute in kids ("Aww, someone wants attention!"), to be labeled an "attention-seeker" as an adult is anything but cute ("Diva," "Drama Queen," "Attention Whore," he/she is "fishing for compliments," "vaguebooking").

No, to get attention as an adult, at least in a way that won't inspire contempt, you have to earn it.  So we try: we tell jokes, we write blogs, we create art, we sing, dance, act. And the better we do these things, the stronger the flow of attention they bring. We even work ourselves to death in high-profile careers so that we might inspire feelings of admiration, jealousy ... anything really as long as they are thinking about us.

It's pathetic, really. But it is ultimately always better to embrace reality than to flee from it.  Humans are vulnerable, needy, sometimes pathetic creatures. So let us embrace our pathetic needs and, in keeping with the "pathos" root of the word, empathize with others and their primal needs.  Applaud each other in our miniature daily performances, dole out the sweet attention when deserved, fuck each other (responsibly) -- in short, pay attention!

Town of Greece and the Myth of Christian Oppression

When I was a good little Christian teenager, still on the confirmation-track at my Catholic church, a girl (who I would soon after be dating) invited me to accompany her to a "game" that a friend had invited her to play. As it turned out her friend was a Charismatic Christian, and the game was, in fact, a huge live-action role play called "Persecution" or some such unambiguously ominous thing, taking place on a sprawling rural lot belonging to someone in the congregation. The intent of the game was to show all us guileless young people what it must be like to live in a place where being a Christian made you subject to social and government-sanctioned oppression -- to be "persecuted" as it were.

This was no namby-pamby team-building exercise or cheesy one-act after school special; this was serious stuff.  It started at dusk, which meant most of the game took place in darkness. The only light we had for wondering directionless through the partially-wooded area was from the flashlights of menacing-looking adult men dressed in black paramilitary gear and from the headlights of their ATVs.  These men would patrol and periodically stop, harass, and interrogate the various groups of teens, shouting "Are you a Christian?" and "Tell me where the Christians are!" If you concealed or denied your Christianity, you would mostly be left alone.  If you admitted it, you were harassed and/or "arrested," i.e., brought back to the holding center (located in the barn) and locked up in cell (stall) where you were subjected to additional interrogation and harassment.

Even in my youthful naivete, the whole operation seemed a bit over the top. I was a Catholic after all, and I was used to my religion being served as a stale wafer sandwiched in a droning hour-long service where you struggled to keep your eyes open. I didn't know what to make of this surreal, and kind of scary, religious role play. Now, in my older naivete, I realize that this little game had some pretty heavy-handed overtones, overtones that reflect certain fears and preconceptions that now loom large in American politics.

You see, the make-believe land of "Persecution" didn't resemble Somolia or Yemen or North Korea -- places where Christian oppression legitimately exists. No, Persecution-land was distinctly American, or at least a fundamentalist Christian's conceptualization of a post-apocalyptic America. And it is precisely this fear, that in the not-to-distant future an apparently atheistic government will rise and crush all that is good and godly, that drives these people to aggressively combat any sign of decline of Christian prominence. They rail against the "War on Christmas," put up the Ten Commandments on courtroom steps, and demand prayer return to schools and government functions. It is the last example that led to the recent, and ultimately unfortunate, Supreme Court decision in Town of Greece v. Galloway.

The Town of Greece

In 1999, the Town of Greece (a suburb of Rochester, NY) and its newly-elected town supervisor, John Auberger, decided that its existing and relatively unobjectionable practice of beginning legislative sessions with a moment of silence was not aggressive enough in combating the inevitable Christian purge. People could not be allowed to simply contemplate in solemnity the great undertaking and duty that is upholding a representative democracy in whatever way that is meaningful to them (including prayer); no, they needed a real live minister to come in and tell them ... and if a little fear of God was put into the hearts of these lost souls, all the better.

So that's what they did. And for EIGHT YEARS this invocation was exclusively a Christian prayer given by a Christian minister, a fact that did not seem to cause any grief to the Board or the eventual Galloway majority.  Apparently, a town employee thumbed through a local "directory" of "congregations" and called a few to see if they were willing to perform such a service.  Very little arm-twisting was needed, it seems, and soon the Town had a go-to roster of ministers ready to warm up the legislative crowds. It wasn't religious discrimination, the Town claims, it just so happens that all of these congregations and all of these ministers were, like most small towns in America, almost exclusively Christian.

Finally in 2007, a couple of locals pointed out that, just maybe, this bit of publicly-sponsored proselytizing was a bit off-putting to people who attended the Board meetings who didn't share the faith.  The Board, after careful consideration of that complaint, and probably an admonishment from the Town Attorney, decided it should probably open up the old directory again. Lo and behold, this time they found a Jewish guy and a chairman of the local Baha'i temple who were willing to speak. Once word got out that the invocation was no longer a closed club, a Wiccan priestess requested and was granted a slot.  

"So calm down," you tell me, "you got a few of your new-agey wackos in, so there's no discrimination here." First, I am calm.  In fact, I am sitting here on a nice Friday afternoon sipping some mocha coffee, contemplating how much less conflict we would have if everyone would just keep their religious beliefs to themselves. Stress is a big problem for lawyers though, so thanks for looking out for me.  Second, three non-Christians in nine years of prayer is not a very impressive show of diversity; moreover, the Town, in 2009, reverted to its de facto Christian-only roster. 

Third, what about people who don't believe in a supernatural deity? Are they allowed to participate? Justice Scalia even mused during the oral arguments: 

JUSTICE SCALIA: Mr. Hungar, what -- what is the equivalent of prayer for somebody who is not religious?

MR. HUNGAR: I would -­

JUSTICE SCALIA: What would somebody who is not religious -­

MR. HUNGAR: In the Rubin -

JUSTICE SCALIA: -- what is the equivalent of prayer?

MR. HUNGAR: It would be some invocation of guidance and wisdom from -­

JUSTICE SCALIA: From what?

From what, indeed. Can a person with nothing to "invoke" give an invocation? The whole premise presupposes a deity to be called upon. This why some troublesome objectors to similar policies have resorted to converting to Satanism to get a chance to speak, perhaps others will attempt to summon the Flying Spaghetti Monster. Would an atheist be allowed a few minutes to outline for the Board various arguments against the existence of a god? Or, more positively phrased, say something like: "Brothers and sisters, there is no heaven waiting for us, all we have is the here and now. So let us act today with wisdom and charity to make this one life the best it can be for everyone." The point is that public prayer is proselytism by its very nature. By invoking the deity of your choice, you are affirmatively making a statement about your beliefs and making an overt effort to influence others based on those beliefs. Justice Kennedy's assertion that these prayers do not "proselytize or betray an impermissible government purpose" is either obtuse or disingenuous.

Fourth, using a government forum for religious purposes violates the Establishment Clause. It does under the Lemon test; it does under the Endorsement test. The Galloway court essentially said this was an exception because of the historical tradition of chaplains giving invocations. I'll grant that is true -- not in the Town of Greece where it was a less-than-ten-year-old tradition -- but true largely. It also used to be a tradition for women not to vote, for doctors to use leeches, and for white people to own black people. Now, I admit that the publicly-sponsored prayer at issue here is not as bad as any of those. But the point is that now is, or should be, a more civilized age; one we realize that putting a "Christians Only" sign on the door of a Town Board meeting is not only wrong but counterproductive to building inclusive and functional governments. 

Lastly, why do we need prayer in a public legislative session in the first place? If the members of the Board want to pray, they can. If the public attendees want to pray, no one can (or should) stop them. They can do it five minutes before the meeting, they can do it during the meeting (quietly), or they can do it the other 743 hours of the month during which there are not in Town Board meetings. Why is that not sufficient?  Why does everyone have to be subjected to it? Imposing prayer on others is not something someone who is secure in their faith does or something that someone is tolerant of diverse beliefs does; it's something that someone who is terrified that Christianity's long-time stranglehold on American politics is slipping away does. Someone who is feeling "persecuted." Of course, as this decision illustrates, they are not: they remain the vast majority in this country and retain a vast majority of members in every government body.  Meanwhile, those who are truly "persecuted" by this practice, are, for the most part, merely sighing and resigning themselves quietly enduring another reminder that it's still not OK to be openly non-religious in American politics. 

Pretty much.

 Thank you, and God bless America.

The Tyranny of the Billable Hour

Unless you work for the government or in-house, as an attorney, your bread and butter is the billable hour. Some other professionals, like accountants, also bill time, but this blog is not about accountants and also no one cares (actually I'm sure the same issues arise for them). Anyway, the premise is simple enough: you keep track of the time you spend working on the client's stuff, the firm bills the client at a predetermined rate for this time, and the firm gives you credit for however many hours it billed on your behalf. And it seems fair enough: the client pays for your time, which, as a professional, is your most valuable asset, and the firm, who usually sets minimum billing requirements, gives you the proper incentive to be consistently billing your time (see generally Agency Theory). Nonetheless, this system can be a source of misery for the uninitiated.

Most firms require associates to bill between 1,800 and 2,000 hours per year. My firm remains, fortunately, at the lower end of this spectrum. But if you've never had such requirement (and even if you have), this number isn't very meaningful. So let's break it down:

Let's assume we are working five days a week (more on that later). There are 52 weeks in a year, but we should account for the firm holidays (Christmas, New Years, Thanksgiving, maybe a few others) and allow a few more days for sick and/or vacation days (more on those later). That puts us at effectively 49 weeks of actual work days. That gives us (49 x 5 = 245) 245 actual work days in a year. If you divide 1,800 hours by 245 you get approximately 7.35, which means you need to bill 7.35 hours per work day to reach your minimum requirement.

How hard is that? Most people work 8-hour days right? Heck, 7.35 means I can show up at 9AM, take 39 minutes for lunch, and leave at 5PM! I thought those crotchety old lawyers told me I would be working nights and weekends. Not so fast, person who uses the word crotchety, 7.35 means 7.35 hours of actual legal work that is ultimately billed to (and paid by) the client. You see, my explanation of the premise above was a little oversimplified. That premise assumes that: (1) the work you are doing is actually billable, (2) the billing partner will actually bill to the client all the time you've recorded (and not "write it off/down"), (3) the client will actually pay the bill it receives (and not request a "write off" or just be a full-on deadbeat and not pay his bill). You are likely to encounter all three of these scenarios throughout the year, and probably each a few times.

For example, what is not billable time? Time spent doing all manner of administrative things: firm meetings, practice group meetings, training, firm retreats, CLEs are not. Neither is "client development/management" time: time you spend preparing and giving presentations to clients or potential clients, writing legal blog posts (substantive ones, i.e, not this one) or articles on breaking legal issues, going to social or professional events both formal and informal.

Why would a partner write off or write down your time? Perhaps the client requested it: the bill is just too big or she just doesn't understand why you need to research filing deadlines.You are a young lawyer: it might take you ten hours to figure out how and to write a motion to compel, while a more experienced attorney might crank one out in a few hours. Even if it does legitimately take that long because the facts are complicated, it might just be too hard to sell a 10-hour billing entry for what is relatively routine motion practice. With the swipe of a pen (or the click of a mouse), there goes a whole day of what you thought was billable work.

How do you combat these billing demons? As a new associate, no one (unless you are lucky) will speak to you frankly about the nuances of actual billing practice. Sure, they may give you some generally-accepted tips about making sure your billing entries are descriptive and understandable. You may even get a few gems like "Break down tasks into their smallest components" or even "Don't bill whole numbers, they make clients think you are rounding up."

But you will find that most attorneys treat their real billing rules like proprietary information. Why? First, while it may not seem so, you are in competition with the other (likely senior) attorneys working on your file. The client is only going to pay so much, especially if they are on a retainer, so if you are "padding" your time that means there's less to go around. Second, some of these methods are not exactly kosher.

Let me walk that back a bit. The reason I put "padding" in quotation marks is because some of these methods are arguably legitimate. For example, one form of padding, "double billing," occurs when you can bill two clients (or the same client twice) for the same time. This frequently happens during travel. If you've got to fly to Florida to take a deposition, you are billing your travel time. During that time you are also probably working on client matters, often the client on whose behalf you are going to the deposition, and hence you are billing twice -- once for the travel and once for the work.

But more often "padding" takes the form of what one partner I work for calls "value billing." While alternative fee arrangements do exist for this sort of thing, he does it on a more informal basis. That is, he has developed a sense for how long a certain task, such as writing an asset purchase agreement, should take, say ten hours (obviously more complicated deals with a lot of back and forth could take much longer than this). If he has a well-worn template that he uses to draft these things, such that it only actually takes him a few hours to fill it out, he still bills ten hours because that's the "value" of the product he's provided. If this sounds scandalous to you, consider what I talked about a few paragraphs above where my work got written off because the time I spent seemed too long. This is just the inverse scenario. In sum, it's the "bill what you can get away with" school of thought, which is actually what most padding -- legitimate or not -- boils down too.

Moreover, the whole billable hour system raises a slew of ethical and quasi-philosophical questions. What counts as time working on a matter? It can't just be the time I'm sitting down and actively typing a draft of a motion or the time I'm sitting in a deposition or standing trying a case. Obviously, those things entail a plethora of sub-tasks, some clearly lawyerly (researching case law for a motion), others decidedly common (walking to court), others a little little of both (reading through records to find relevant information). All of those things are clearly billable.  But what about a step removed from those things? For instance, I grab some coffee or go to the bathroom. Or I take a walk to clear my head.  Or I call it a night and go home and ponder what my strategy should be. Again, my answer is yes, that these things are all part of the process for which a client is paying you. But at the same time, a client would might be understandably hesitant to pay for them.

Lastly, and the real reason I wrote this post, is that minimum billable hour requirements mean attorneys have a never-ending source of stress. Either they are working on billable matters and are worried about (1) doing a good job and (2) billing the work so as to get paid for doing it, OR they are not working on billable hours and stressing about the most expeditious way to get back to doing billable work. Indeed, for every week that you are humming along billing 8, 9, or 10 hours per day, you will have a day or even days where you struggle to bill much of anything. In such a feast-or-famine environment, when the work is there you must feast upon it; hence, the aforementioned working of nights and weekends. The subject of what to do in those dry spells (or during influxes of non-billable work) might be the subject of another post ... just as soon as I figure it out myself.

Grammar Lessons for Golden-Years Lawyers

Lawyers of a certain age (say 50+) seem to operate under a set of unwritten grammar rules. They likely remain unwritten because they are not in fact rules that actually exist, but rather are ones that likely became ingrained in their heads after reading years of dreadful prose written by legislators and judges, not to mention their predecessors and colleagues' products.

WHEREFORE, presented here on this blog (the natural medium for people of that age) is a couple of grammar tips:

• Use of a colon does not necessitate the use of semicolons thereafter.

This probably stems from years of reading unwieldy statutes that often glue together dozens of clauses in an attempt to be thorough. In so doing, the legislators may employ semicolons in their "super-comma" function (i.e. to separate lists of things that already contain commas) or for no real reason at all other than perhaps a misguided attempt to provide clarity. Whatever the cause, a comma is a perfectly fine mark to use, and is in most instances correct. E.g., "The defendant raised three affirmative defenses: assumption of the risk, governmental immunity, and res judicata."

• Don't use "which" to introduce restrictive clauses.

Oh "that," that ugly word. "That" is a word that inspires hatred. I've had teachers tell me to go through compositions and remove the word "that" wherever it appears. Truly, "that" can be overused, but the word serves several purposes.  One of those is to introduce restrictive clauses.    

A "restrictive clause" is an adjective clause that cannot be omitted from a sentence without affecting the basic meaning of the sentence.  It is not set off by a comma like a non-restrictive clause would be. It can start with "that," "who," or "whose," but never with "which." Again, I blame legislators who use "which" because it sounds more formal -- much like the douchebag person who responds with "I am well" when someone asks him or her, "How are you?"

• Use serial commas.

I know, it was a different time back in the Depression (or '70s or something) and you had to conserve ink. But now most stuff is electronic and those couple of pixels in that extra comma can avoid confusion.

• Use active voice for god's sake.

My writing professor once told me that you should imagine your reader as a young child. Just as a young child needs his or her hand held to cross the street, you must lead your reader through your sentence. Don't confuse the poor child in the middle of the street by hiding your subject or masking your verb, as the passive voice does. If you write a sentence like:

A purchase order may be cancelled by Buyer only with the written consent of Seller upon reimbursement by Buyer for any and all expenses and other losses incurred by Seller as a result of such cancellation, including the actual out of pocket costs, overhead and anticipated profit incurred by Seller.

... then you have led your child into a bus, you negligent monster. Thanks for reading -- now you may commence critiquing my grammar.