The Spanish Countryside

The city of Valencia disappeared behind me, replaced by the vibrant green of the Spanish countryside. I sat in the car’s passenger seat, wondering whether I had made a mistake in agreeing to the trip.

The year was 1997. I represented the owner of a famous trademark for towels and bedding in litigation involving the manufacture of counterfeit goods in Spain. I had traveled to Valencia to take the deposition of the Spanish manufacturer, whose plant and warehouse were situated outside the city. The deposition would begin the next day at the Melia Hotel, where my opposing counsel and I were both staying. On this day, I had agreed to travel with the manufacturer and his attorney to the plant to review documents and observe the operation.

We drove for more than an hour, the manufacturer behind the wheel, my opposing counsel directly behind me. We would occasionally comment on the beauty of our surroundings: a sea of green extending in all directions, with occasional villas visible on the horizon. Despite the soothing panorama, I could not relax. I stole occasional glances at the defendant behind the wheel and half-seriously wondered whether I would mysteriously disappear and never make it to the next day’s deposition.

We eventually reached our destination, a large, box-shaped building in the middle of nowhere. The manufacturer insisted that the lawsuit was a mistake, that he did not engage in the manufacture of counterfeit merchandise. He was short for words, however, when an employee inadvertently opened a door into a room that contained counterfeits of not just my client’s products, but of many other famous trademarks, as well.

After several hours of documents and explanations, the manufacturer drove us to an outdoor restaurant at an old hotel situated near the base of a medieval castle wall. The location was breathtaking and the food delicious. The conversation soon turned to the case, with the manufacturer again insisting, despite what we had seen at his plant, that he did not manufacture counterfeits. I responded that, while I appreciated his hospitality, I intended to come down hard on him. It was all very pleasant, but with an underlying feeling of unease.

I spent the next two days grilling the manufacturer and confronting him with the evidence of his activities. At the conclusion of the deposition, we sat down at a café in a medieval section of Valencia and spent several hours negotiating a settlement.

Two days later, I boarded a plane for Madrid, where I would catch my connecting flight back to Miami. The trip had proven successful – I had been able to negotiate a settlement very favorable for my client. Yet what I remember most about the case, and what keeps it fresh in my mind fifteen years later, are not the legal issues, the eventual settlement or even the personalities involved (many were quite flamboyant). Rather, the images that most vividly remain are those of medieval castle walls, ancient countryside hotels, and a long car ride into the Spanish countryside with the possibility of no return.

Follow the Leader

So now it’s Newt’s turn.

This year’s Republican presidential primary has resembled the Kentucky Derby, the initial leg of the horse racing Triple Crown: one and a quarter miles of break-neck competition, with countless lead changes preceding a final desperate sprint to the finish. Rarely do competitors lead from start to finish. Those who emerge quickly usually fade as the finish line draws near.

Early Leaders

Michele Bachmann and Rick Santorum were viewed as potential early leaders, and they appeared to emerge well from the gate. Their perceived advantage proved illusory, however, and they quickly faded into the pack. The general feeling is that they have run their race and will not mount a credible challenge.

Rick Perry, the last candidate to the gate, then surged ahead. He was an early favorite and his campaign seemed to be gaining momentum as he began to separate from the pack. However, amidst criticism for softness on immigration issues, he stumbled badly at debates and quickly lost his lead.

Perry’s unexpected drop opened the door for a new candidate to emerge. Herman Cain, former chairman and CEO of Godfather’s Pizza, suddenly materialized atop polls. Cain used his business background to gain favor by preaching economic conservatism and proposing a 9-9-9 tax plan which some viewed as promising while others dismissed as impractical. While some were skeptical of his chances, others viewed him as the future of the Republican party and expected him to remain among the leaders for the balance of the race.

Then the mud began to fly.

Mud

There is one significant difference between horse race and presidential campaign. In horse racing, the leader avoids the constant bumps and collisions that inevitably occur when a group of strong, agile animals occupy limited space at high speeds. While trailing horses are subject to mud and dirt raised by the hooves of those before them, the leader can run unimpaired. There is no one to kick mud in its face.

Leading candidates in presidential races, on the other hand, attract mud. They are subject to scrutiny and become vulnerable targets because of their visibility. In presidential races it is the mud hurlers, and not the candidates, who are unimpaired. Thus, the candidate who emerges from the pack must be prepared to face challenges that his opponents may not.

Quite often, those challenges stem from the candidate’s past life. Offenses and indiscretions that may have otherwise remained forever buried suddenly emerge to sully the candidate’s reputation. When those offenses and indiscretions are of a sexual nature, they can destroy the candidate’s chances, as they did Gary Hart’s in 1988.

Soon after Cain’s surprising surge to the front, he was confronted with allegations of past sexual harassment of women and a decade-long extramarital affair. Cain has denied these allegations, essentially turning the issue into a he said/she said, she said, she said and she said verbal battle for the truth. Yesterday, Cain reportedly advised his staff that he was “reassessing” his campaign in light of this development. Unlike Bill Clinton, who overcame similar allegations when he was first elected president in 1992, Cain may abandon his pursuit of the presidency, essentially pulling up lame in the midst of the Presidential Derby.

Enter Newt

Cain’s recent drop in the polls has created a new perceived leader in the race: Newt Gingrich, the former GOP Speaker of the House. Despite obvious problems with a potential Gingrich presidency (President Newt? Really?), the new leader has an advantage that Cain lacked. Because of his visibility as Clinton’s principal congressional opponent during his presidency, Gingrich’s “dirty laundry,” including three marriages and a sanction by the House Ethics Committee for tax violations, has long been aired for all to see. Thus, it is unlikely that Gingrich’s campaign will be derailed by new allegations, such as those that plague Cain. The rehashing of “old news” is unlikely to impede Gingrich’s present momentum. What may impact his overall chances will be the assessment of his electability in the general election versus that of Mitt Romney, who has remained near the front of the pack during the entire race, but has been slowed by the perception that he is not far enough to the right to get his party’s full support.

So here we are. Halfway through the race, Gingrich appears to have a slight lead over Romney, with Cain and Perry falling back into the pack. Yet the race is far from over. By the time they reach the finish line the GOP candidates will be muddied, bruised and exhausted. It seems almost unfair that the winner will be then immediately thrust into a two-horse race with President Obama to determine the next leader of the free world.

Heroes and Villains

“You either die a hero or live long enough to see yourself become the villain.”

The line is from Christopher Nolan’s stylish 2008 film The Dark Knight. The accuracy of the statement was evidenced this week in the sporting world.

Joe Frazier died on Monday. The former world heavyweight champion was the embodiment of why boxing, despite its inherent brutality, was once considered a “gentleman’s sport.”

Frazier was not flashy. He was a hard-working, persistent pugilist, who attacked relentlessly with hooks to the head and body, tearing down defenses until opponents inevitably submitted. He is considered one of the greatest heavyweight champions despite successfully defending his title only four times.

In a sense, Frazier was on the wrong side of history. His name will forever be linked to that of Muhammad Ali because his career was largely defined by his three bouts with Ali, considered by boxing experts among the greatest fights ever staged. Frazier defeated Ali in the first of those bouts on March 8, 1971, a 15-round battle that saw Ali dropped to the canvas for the first time, suffering the first defeat of his professional career. Ali took their next two fights, including the brutal 1975 spectacle referred to as the “Thrilla in Manila” that saw Frazier, blinded by Ali’s repeated jabs, prevented by his corner from emerging for a fifteenth and final round.

The 1971 Frazier-Ali bout was deemed “The Fight of the Century,” one of the most anticipated boxing events ever. Ali, a conscientious objector to the Vietnam war, was criminally charged and convicted in 1967 for refusing induction into the U.S. armed forces (his conviction was eventually reversed by the U.S. Supreme Court on June 28, 1971). Ali’s boxing license was suspended and he did not fight for more than three years. When Ali’s license was restored in late 1970, the stage was set for his 1971 bout with Frazier, a battle of undefeated champions in the prime of their careers.

Frazier lacked Ali’s flash and charisma. While Ali loudly proclaimed himself “the greatest of all time,” Frazier went quietly about his business of training and preparing for his next fight. He never attained the world-wide renown and adulation of Ali – yet many believe that Ali would not be Ali without Frazier.

Frazier retired from boxing in 1981 at the age of 37. His death was mourned by many who, like myself, grew up in the 1970’s and remember him as a quiet, proud man whose name and career were synonymous with professionalism. He is remembered fondly, particularly in his native Philadelphia, where he is considered a hero and community icon.

Contrast Frazier with Joe Paterno, iconic coach of the Penn State University football team.

For over six decades (four of them as head coach), Paterno had been the king of college football, overseeing one of the most successful programs in the country. Paterno was deemed an educator who valued sportsmanship and integrity more than his teams’ abundant success on the gridiron. At the age of 84, he was a beloved and revered figure in the sport, and the universal belief was that he would continue coaching until he decided it was time to walk away. When that time came, all assumed that he would depart the game with his head held high. His reputation and legacy were beyond reproach.

All that changed in the span of days.

Late last week, a grand jury indicted Paterno’s long-time friend and defensive coordinator, Jerry Sandusky, charging him with the repeated and systematic sexual abuse of young boys on university grounds over several years. Further, two university officials, including the school’s athletic director, were also indicted based on the grand jury’s finding that they were aware of, yet ignored, Sandusky’s actions.

Paterno testified during the grand jury proceedings that he was made aware by a graduate assistant of a 2002 incident involving Sandusky and a 10-year old boy in the showers of the team’s football complex. The graduate assistant had witnessed the criminal act and notified Paterno, apparently believing that Paterno would contact the proper authorities. Paterno immediately brought the incident to the attention of the university’s athletic director, following school protocol that required notification of Paterno’s superiors.

However, neither Paterno nor anyone else at Penn State ever notified university police, which allowed Sandusky to continue his alleged pattern of abuse unabated for several additional years.

Paterno is not being targeted in the criminal investigation. Local authorities have stated that, by notifying his athletic director, he complied with his legal obligation under the circumstances.

Whether Paterno complied with his moral obligation, given the nature and severity of the act by Sandusky reported to him, has been openly debated for the past week. When the grand jury findings became public, pressure mounted on Paterno and the university’s president to resign or be stripped of their positions.

Earlier today, Paterno announced that he would retire at the end of this season, indicating that the effects of the child sex abuse scandal have been “overwhelming.” This evening, the university's Board of Trustees terminated Paterno's tenure as head coach, effective immediately.

And so ends the career of the man once deemed to embody all that was good about college football. He leaves no longer a hero, his legacy tainted by a scandal unlike any ever witnessed by the sport.

While Paterno is not a “villain” in the traditional sense, his public image has been forever altered. It is sad to think that he will be remembered not for the positives he brought to the sport over a span of 62 years, but for the sordid scandal that led to his departure.

Yet when one thinks of the abuse allegedly wrought upon young victims by Sandusky, and the realization that one call by Paterno to campus police might have prevented several of the assaults, it is difficult to remember Paterno in any other light.

Almost

“Almost” only matters in horseshoes and hand-grenades.

This phrase was often repeated by a local Hell’s Kitchen character whenever my childhood friends and I discussed near accomplishments.

He was right, of course. We like to tell our children that “trying” is what is important, that “it is not whether you win or lose, but how you play the game.” Yet no one remembers the name of the person who nearly discovered penicillin, nor of the aviator who came close to crossing the Atlantic before Lindbergh’s famous flight.

Last week, the Texas Rangers twice came within a strike of winning their first World Series. Theirs was a fascinating tale. Their best pitcher fled to Philadelphia after the Rangers lost the 2010 World Series, believing that his chances of attaining a championship would be much improved with the Phillies. Their best player, Josh Hamilton, abused alcohol and drugs for years, nearly losing both career and life, before coming to grips with his addiction and evolving into one of the best players in the game. As a tribute to Hamilton’s struggles and perseverance, after the Rangers won the 2010 American League championship, players celebrated on the field with ginger ale, rather than the traditional champagne. The team’s manager, Ron Washington, disclosed prior to the 2010 season that he had tested positive for cocaine during the previous year, a mistake which he acknowledged and for which he apologized. Many speculated that Washington would be fired, but management and ownership supported him, and he rewarded that support by leading the Rangers to the first World Series appearance in franchise history.

A Rangers victory in 2011 would have yielded an intriguing story. Yet that story will never be told. The St. Louis Cardinals battled back from the brink of elimination and defeated the Rangers in seven classic games. The thrust of journalistic attention will therefore focus not on the Rangers, but on the Cardinals’ historic championship run. St. Louis almost missed the playoffs, overcoming a double digit games deficit in September to qualify for post-season play on the final day of the regular season. That is what will be remembered from the 2011 baseball season – not the Rangers’ successful defense of their American League title.

In the early 1990’s, the Buffalo Bills played in four consecutive Super Bowls, the only team in NFL history to attain that feat. Yet the Bills are noticeably absent from discussions of the game’s greatest teams. They are never mentioned with the Pittsburgh Steelers, Dallas Cowboys, New England Patriots or San Francisco 49ers because the Bills lost all four of their championship games. Likewise, their on-field leader, Hall-of-Fame quarterback Jim Kelly, never attained the glory or stature of Joe Montana, Terry Bradshaw or Tom Brady, all of whom won multiple NFL championships.

In 2007, the New England Patriots took an unblemished record into the Super Bowl, matching the 1972 Miami Dolphins’ accomplishment. But the Patriots were defeated by the New York Giants in Super Bowl XLII. Thus, when we speak of classic undefeated seasons, only the Dolphins are mentioned. The Patriots receive little recognition for their near accomplishment.

The city of St. Louis is celebrating. Championship parades are being staged for the Cardinals and their retiring manager, assured Hall-of-Famer Tony La Russa. Thousands are expected to attend.

It is uncertain whether Dallas will host any parades for its defeated two-time defending American League champions. Yet, even if consolation celebrations are held, it is difficult to imagine thousands of fans lining the parade route and showering the Rangers with chants of “We’re number two!”

A Special Message from Netflix

Dear Netflix Subscriber,

We still can’t understand it. When we announced in September our plans to split off DVD rentals from streaming services, we assumed that our customers would embrace the opportunity to maintain two separate accounts (streaming on Netflix and DVD rentals on Quikster), with different websites, different ID names and different passwords at twice the cost of traditional Netflix services.

We were wrong. Since we made the announcement, nearly one million customers have left the Netflix family, and account cancellations continue to arrive daily.

Our investors are unhappy. They see our decision to abruptly deviate from the “ease of use” formula that has traditionally made Netflix successful as a corporate mistake rivaling Coca-Cola’s 1985 ill-fated formula change.

You have spoken and we have listened. The message is loud and clear: if we want to maintain control of Netflix and our substantial annual incomes, we must re-evaluate our plans.

The first step in the re-evaluation process is a review of the origins of the idea. Why did we decide to make the change? Who was responsible? Our investigation has revealed that the source of the idea was a mailroom employee at Netflix’s main offices in Los Gatos, California. You may rest assured that the individual is no longer employed by Netflix and the company plans to post his address, telephone number and photograph on the Netflix website to give you, our valued customer, the opportunity to express your dissatisfaction directly to him. We will also include a direct link to the individual’s Facebook page, so that you may share your frustration with others. Our principal goal is to enable you, our valued customer, to assuage your rage with the same seamless ease that has traditionally defined Netflix.

The next step in the re-evaluation process is righting the wrong created by that ill-advised former Netflix employee. So we are going to keep Netflix as the one place to go for streaming and DVDs. That means no major changes: one website, one account, one password… in other words, no Quikster. The only noticeable change is that Netflix will now be called Netflix Classic, consistent with Coca-Cola’s resolution of its own PR fiasco.

Don’t get us wrong – we are still raising our prices more than 60 percent. We feel strongly that the increase is justified by the more than 3,500 second-rate TV episodes that have been added to our streaming selection over the past few weeks. We believe that the addition of thousands of shows no one wants to watch more than offsets our recent loss of the rights to top quality programs such as Showtime’s Dexter and our inability to secure the rights to any HBO programs (curse you, HBO-Go!).

So please, give us another chance. If you are one of the one million Netflix subscribers who left as a result of our former employee’s decision, please come back. We will make your return to the Netflix family as painless as possible. And, to avoid the possible stigma that may attach to perceived “turn-coats,” we will continue to charge your credit card for the entire period of your absence. It will be as if you never left!

We value you as a member, and are committed to making Netflix the best place to get your movies and TV shows.

Respectfully,

The Netflix Team

On the Field

The game is easy: throw the ball, hit the ball, catch the ball. The difficulty lies in execution. Baseball is, after all, a sport played by men with human flaws and frailties, subject to the ebbs and flows of life.

Spring training traditionally breeds speculation. Teams are analyzed and scrutinized based on previous years’ performances. Prognosticators anoint their would-be champions, favoring those squads that look best on paper. The problem, as traditionalists will tell you, is that the game is not played on paper – victors are determined on fields of dirt and grass.

The human element of baseball comes to mind due to last week’s release of Moneyball, the Brad Pitt vehicle directed by Bennett Miller, of Capote fame. Based on an excellent 2003 book of the same title by acclaimed author Michael Lewis (whose take on the 2008 financial crisis, The Big Short: Inside the Doomsday Machine, appeared on bestsellers lists for several months), Moneyball relates the story of Billy Beane, long-time General Manager of the Oakland A’s, who successfully competed with large market teams during the early part of the new millennium by abandoning traditional scouting techniques and focusing almost entirely on statistical analysis.

Beane’s innovative twenty-first century approach, adopted by other small market teams in subsequent years, revolutionized a sport that, despite its glorification of records and numbers, had been reluctant to abandon the “gut check” method of scouting and player development. While the Yankees and Red Sox lured high profile athletes with big money and the promise of media exposure, Beane focused on less heralded college athletes who did not necessarily possess the traditional tools of the sport (such as power and speed), but who reached base often enough to earn high spots on the A’s unorthodox list of prospects.

The problem with Moneyball is that its principal premise is somewhat dated. After turning down an offer from the large market Red Sox to assume management of its front office (electing instead to remain in northern California, close to his daughter from an earlier marriage), Beane’s baseball success came to a halt. After trading away key players inherited from his predecessor with the A’s, Sandy Alderson (now General Manager of the large market New York Mets), Beane’s teams simply stopped winning. This unfortunate epilogue is conveniently omitted from the Hollywood version of the Billy Beane story.

The eventual dilution of Beane’s success is not surprising because, despite his efforts to prove otherwise, numbers in baseball do not tell the whole story. Quite often, the difference between winning and losing is a hard slide into second base to break up a double play, or hitting the cutoff man to keep the tying run from reaching scoring position – acts which take place on the field and can not be quantified or easily inserted into statistical columns. That is where execution and the human element assume paramount importance.

While the average fan may view baseball players as commodities to be preserved or discarded, depending on the needs of fantasy teams, the product which Beane puts on the field is a matchup of men against men. Beane’s men in recent years have lacked the skill of their opponents. Not surprisingly, the Oakland A’s have not fielded a winning squad since 2006.

This does not mean that Beane, a charismatic personality whose popularity will certainly be enhanced by his association with Brad Pitt, has failed. On the contrary, he will always be remembered as an innovator in a sport that has historically abhorred change – how else could one explain the sport’s refusal to accept black major leaguers until 1947?

Too much emphasis is placed on the off-field impact of men like Beane, whose success will always be measured by what takes place on the field. Players – not owners, managers or general managers – win games. The true role of back-stage players such as Beane is to select athletes, put them on the field, and let them do their thing – while trying to maintain a safe enough distance to avoid mucking things up.

Summer of '83

It was short commute, thirty minutes door-to-door. I hopped the A-train at 42^nd Street and emerged at Chambers Street to join a sea of grey and blue flowing in waves towards the city’s financial, business and legal centers.

One Hogan Plaza housed the offices of Robert Morgenthau, District Attorney for New York County since 1975. It was the summer after my first year of law school and I had been hired as an intern by Morgenthau’s office, a position that paid little but offered opportunities to delve into the law and observe trials. This was my first job within my chosen profession, and would help shape later decisions in my career.

I had been assigned to “Rackets,” a division housed by young, ambitious and idealistic professionals with the unenviable task of attempting to control the city’s organized crime. I was one of three interns with the Division. The others were Lisa, a pretty first-year student from St. John’s who, for some reason, spoke with a British accent despite her Brooklyn upbringing, and Jerry, a second-year student from Brooklyn Law, whose father was a judge in a civil division. We worked together in a common area, researching legal issues and helping the ADA’s prepare for hearings and trials.

“Rackets” was an elite division within the D.A.’s office. Most divisions were trial-oriented, its attorneys assigned to particular judges. ADA’s in trial divisions had virtually no down time; they moved from one trial to the next, with little time to prepare, relying on secretaries and interns to fill in gaps. “Rackets” was different. Trials were few, and preparation abundant. The ADA’s worked with investigators to prepare their cases and only filed charges when cases were ready.

Investigations often involved field work, and one of the highlights of my summer was a visit with an ADA to a temporary surveillance center in the basement of a building across the street from a target, a seller of furs suspected of trading in stolen merchandise. The center was everything that I imagined: televisions screens depicting activity inside the target’s store, detectives watching the screens and listening over earphones to selected conversation, with audio and video recorded for further analysis. I would later spend time reading through transcripts of audio recordings, highlighting those portions that would help make the case.

Because trials in “Rackets” were scarce, I was given the chance to observe trials in other divisions. I selected a second-degree murder case involving guns, drugs and adultery. The trial lasted three days and the jury deliberated less than two hours before returning a guilty verdict. Later that day, as I related my experience to one of the senior members of “Rackets,” he smiled and nodded. “Convicting the guilty is simple,” he said. “Only the great ones convict the innocent.”

When I think back over my career, I can attribute my decision to become a litigator to my experience that summer. I pictured myself standing before the court, putting on evidence, cross-examining witnesses. I imagined the adrenaline, the rush that every litigator experiences when a trial begins, and I knew that is what I wanted.

I told this to Jerry, my fellow intern, over lunch one day. Jerry was an expert on the local cuisine, having learned of the best places from his father, who presided in a nearby courthouse. We ate that day at what Jerry referred to as “the Chinese McDonald’s,” a small basement restaurant on Mott Street decorated with police photographs and memorabilia. It was a favored destination of the NYPD and featured the best Sesame Noodles in the city. Jerry and I spoke of our experiences, our goals and ambitions, all-the-while dining on Chinatown’s best.

After lunch we took a shortcut through a small alley to Baxter Street and walked south towards One Hogan Plaza. As we approached our building the crowds suddenly appeared, men and women in suits, walking briskly in every direction, heading back to their offices while lost in thought. The revolving doors to our building offered refuge from the waves, thousands of people pondering life, love, and future, lost in a dance of perpetual motion in the shadows of the World Trade Center.