Money Matters

“It’s not about the money, it’s about the principle.”

The client is sincere. It is the outset of the litigation and he feels wronged, violated. He wants his day in court. He demands justice and financial considerations are far from his mind.

But that will change. As the case progresses and hits the inevitable roadblocks, as resolution is delayed by rules intended to assure fairness often achieving the diametric opposite, the bills will add up. And what was once inconsequential will assume paramount importance.

It is my job as counsel to focus the client on the financial realities of litigation. It is sometimes said that a bad settlement is better than a good trial, and there is truth to that. Settlement stems the financial bleeding, ensuring that the parties will survive to live (and possibly litigate) another day.

And so, at the outset of litigation, I focus the client on both the legal and financial aspects of the case. Because, in the final analysis, it is about the money and the principle. The two are often inseparable.

There was a time when wars were waged to strengthen struggling economies. The Romans, for example, used war to bring new riches into the empire. Triumphant parades were held in which the vanquished enemy was displayed in chains, surrounded by gold and other valuables forfeited to the conquering legions. Plunder routinely followed victory. The goods of the defeated became the assets of the victors.

But all that has changed. Today, victory in war is routinely followed by rebuilding of defeated nations, at least for Americans. Wars are expensive, and the financial bleeding does not end when the last shot is fired. Thus, success in war is no longer measured by the outcome on the battlefield. Human casualties are almost an afterthought. Success in war today is measured by dollars and cents.

Which is why the federal government’s prosecution of steroids users in sports is perplexing. Barry Bonds, Roger Clemens and Lance Armstrong have become the new public enemy, pursued relentlessly by prosecutors intent on making them examples for their lack of candor in the government’s steroids investigations. The message is clear: if you lie to the federal government, we (the government) will come after you, especially if you are a public figure and your fall from grace will be spread across tabloid headlines.

The federal government pursued Barry Bonds, the all-time baseball home run king, for more than half a decade because of his perceived lies to a grand jury over his personal use of performance enhancing drugs. A few weeks ago, after years of pre-trial proceedings, rescheduled trial dates, appealed court decisions, and a one-week trial in which the defense did not introduce a single witness, the jury deadlocked on the most significant charges against Bonds and found him guilty only of obstruction of justice, a result which will likely lead to probation, and no jail time for the athlete.

The cost to the taxpayer of Bonds’ prosecution is estimated to exceed 10 million dollars, which raises the question: in a difficult economy, where Congress spends most days cutting social programs to try to bring the federal deficit within some measure of control, should we be spending such amounts pursuing professional athletes for disrespecting authority? We can all agree that lying to the federal government is a bad thing, but does it justify the government’s pursuit of the perceived liars at all expenses?

If government were run like business, the pursuit of Bonds would have been subjected to a cost-benefit analysis at the outset. The correct business conclusion would likely have been not to spend so much on the prosecution and instead redirect funds to more profitable ventures.

Government is, admittedly, not business. The social contract that exists between a government and its people must be considered alongside issues of finance. The correct decision for government will not always be the most fiscally sound, particularly when issues of national defense are at stake.

But Bonds, Clemens and Armstrong pose no threat to national defense. They are athletes whose questionable actions have little discernable impact on societal norms. That is why finances must be considered by prosecutors deciding the extent to which they will pursue such athletes for lack of candor.

Bonds, Clemens and Armstrong are clearly being made examples by prosecutors intent on proving that no one, no matter how wealthy and famous, is above the law. But those prosecutors, as representatives of the people of the United States (the case is, after all, United States of America vs. Barry Bonds) owe a duty to the people to make decisions that are in the people’s best interests. And, in the present economic climate, finances must be considered.

Principle does not override all, not even for government employees intent on making a statement. Prosecutorial restraint must be employed to ensure that correct decisions are made, even if it means abandoning pursuit of public figures caught in a public lie. Money does matter, after all, despite our often cavalier attitude about its impact on what we perceive to be important.

Reunited

I never check baggage at airports. I usually pack everything needed for a short business trip into a carry-on and store it in the overhead compartment. I can then relax in my aisle seat, confident of no problems upon arrival.

My recent trip was different: three cities in seven days (Palm Springs, St. Louis and San Francisco) with connections on all but the last leg. Three of the flights had departure times before 6:30 A.M. Even before I set foot on the first plane, I knew this was going to be a rough week. I was forced to check my garment bag – no way to pack a week’s worth of provisions into a roll-on.

At first, all seemed promising. I met my friend Jennifer, a fellow attorney who would join me for the first two legs of the trip, at MIA. The electronic board assured us that our 2:10 P.M. American Airlines flight to Dallas-Fort Worth, where we would catch a connecting flight to Palm Springs, was scheduled to leave “on time.” We boarded on time and departed the gate on time. Then all changed.

The plane did not head to the runway, but instead circled the outskirts of the airport and returned to the gate. The pilot announced that, due to bad weather in Dallas-Fort Worth, the flight would be delayed several hours – more information to follow. I then received an e-mail that our connecting flight, the last American flight of the day from DFW to Palm Springs, had been cancelled. There was no way we would make it to Palm Springs in time for our morning meetings if we stayed on this flight.

So Jennifer and I got busy. We called American reservations and explained the circumstances. We were placed on a flight to San Francisco, scheduled to leave in an hour, with a connecting Alaska Air flight to Palm Springs to depart soon after our arrival at the City by the Bay. The only problem: my bag would remain on the flight to DFW. I was told that it would likely arrive in Palm Springs the next morning.

We made our way to our new gate. The electronic board again assured us that the flight would leave “on time.” We boarded on time and departed the gate on time. Then, once again, all changed.

The pilot announced over the loudspeaker that, because of bad weather in Dallas-Fort Worth, our departure would be delayed by two hours. This meant that we would miss our connecting flight, unless it was similarly delayed. This time, we were offered no alternatives. We sat on the runway for two hours and hoped for the best.

When we landed in San Francisco several hours later, Jennifer checked the status of our connecting flight. It too had been delayed and had not yet left the gate. Because we had been placed on the San Francisco flight at the last moment, our seats were near the rear of the plane. Thus, we waited for the nearly thirty rows ahead of us to empty before we managed to exit the plane, Jennifer all-the-while checking her smart phone for the status of our connecting flight.

We arrived in Concourse D. Our connecting flight, which Jennifer’s phone told us had not yet departed, was to leave from Concourse A. We asked, and were told that, in order to get to Concourse A, we would have to exit security. We ran for what seemed a half-mile through the emptying corridors of the airport (it was now nearly 9:00 P.M.), our roll-ons trailing behind. We again passed through security, where I was stopped briefly for a quick check of my carry-on. When we finally arrived at the departure gate, the plane was no longer there. We had missed it by a few minutes.

We learned that there were no other flights from San Francisco to Palm Springs that night. Jennifer suggested skipping Palm Springs altogether and flying to St. Louis, the next leg of our trip after our scheduled one-day stop in Palm Springs. However, neither of us wanted to miss our meetings the next morning. And there was another problem: even if we circumvented Palm Springs, my garment bag would not. It was still scheduled to arrive there the next day on an American flight from DFW.

We spoke with a local who suggested that we fly that night to Ontario (California) the closest airport to Palm Springs, about 90 miles away. We made our way to the American ticket counter and requested that they check for flights to Ontario on other airlines (there were none that night on American). After what seemed like hours, but was probably no more than a few minutes, we were placed on a United flight scheduled to depart at 10:40 P.M. While I dealt with the ticket agent, Jennifer was on the phone with her husband Bill, arranging for a rental car for the drive that night from Ontario to Palm Springs.

We eventually left the American counter, and headed to yet another airport concourse, where we would again go through security. This time, it was Jennifer’s turn to be stopped for a bag check. We arrived at our new gate on time, and even squeezed in a few minutes to eat. Our flight left on time, and landed in Ontario at around midnight. We then picked up Jennifer’s rental, which Bill had reserved for us, and began our 90-mile drive through desert roads to Palm Springs.

By the time we arrived at our hotel, it was nearly 2:00 A.M. We both had early morning meetings. With the time change, I had been up for nearly 24 hours. This was going to be a short night, and coffee would be at a premium the next day. My garment bag, presumably, was sitting in Dallas-Fort Worth, waiting for a morning flight to Palm Springs.

I awoke the next morning feeling surprisingly rested. Before I left for my meeting, I called American Airlines to check on the status of my bag. I was told that, because our last flight the previous day had been with United, I should check with them. I pointed out that American, not United, would transport my bag, but that did not persuade the American agent to provide additional information. I then asked whether the bag would be on the morning flight from DFW, as I had been told. The agent responded that I should check back after 10:40 A.M., when that flight was due to arrive and all bags would presumably be scanned.

After my meeting ended at 11:30 A.M., I again called American and asked whether my bag had arrived on the morning flight from DFW. The agent could not answer my question. Like the previous agent earlier that morning, he suggested that I contact United. I called United and explained the situation. I was told that there were no records of my bag anywhere at any time. It seemed to have vanished, quite literally, into thin air. I asked the United agent whether I should drive to the Palm Springs airport, less than 10 minutes away from our hotel. He responded that it would be a waste of time, assuring me that he would have a record of my bag if it had arrived.

I decided not to heed the agent’s advice and drove to the airport. I asked Airport Information for the proper procedure on filing a claim for my lost bag. I received conflicting responses from two representatives: one said I should file with American, the other with United. The one thing they agreed on was that the morning American flight from DFW had arrived a couple of hours earlier.

I was scheduled to leave for St. Louis the next morning, and had no other changes of clothing. As I pondered my options, I strolled through the baggage claim area. And then I saw it. In an inconspicuous corner, sitting in the company of two other bags, unguarded and unattended, was my garment bag. I grabbed it and made my way out of the airport, back to my hotel and the rest of the day’s events.

And so, after the bad weather, cancellations, runway delays, mad dashes through airports and midnight drives through the desert the previous day, the story had a happy ending. My bag and I were together again, ready for the next leg of our trip.

A Gap in Time

Some days are difficult. He struggles to his feet in the morning, rear legs shaking, barely supporting his weight, as he stiffly, slowly makes his way to our pool area. The Carprofen prescribed by his vet alleviates the pain, but not the years. He is nearly thirteen, an advanced age for large dogs and Cheddar, the yellow lab who has lived with us since near birth, feels the passing of time with each rheumatoid step.

Other days are better. He rises with anticipation, looking ahead to meals, daylight, and the comfort of our large yard, where he will spend his time walking, sleeping, and taking in the sun. On his best days he will move with ease and alacrity, taking us back nearly a decade, to a time when youth, passion and curiosity defined his life.

Age affects all, including the inanimate. It has been more than six weeks since we learned that our home, built in 1957, wept hot tears of age. Our hot water pipes had corroded, requiring the re-piping of the entire house. The decision was made to work through the attic and avoid ripping up floors to access the concrete foundation, where the original pipes had been laid.

After some haggling with our insurer, work began. We decided to combine re-piping with the remodeling of our bathrooms, something long overdue. We began with our master bathroom, which can be accessed directly from our pool area, behind our house. We opened the side gate to our yard fence to give workers direct access to the bathroom without affecting other portions of the house. This meant, however, that our dogs’ access to the yard would be limited. They would spend most of their day, while the work was in process, confined to a small area of our covered patio.

Cheddar was miserable. His mornings became more painful and his days less active. He seemed disoriented and lethargic, leading one of the workers to express surprise one morning, when he saw Cheddar emerge from the house. He had been convinced that Cheddar would not make it through the night, so evident was his affliction.

We then made some changes. The side gate remained open to allow workers to come and go with ease, but we placed a small gardening fence across the gap, which allowed Cheddar to again roam the yard.

The change was immediate. The spring was back in his step. He was more focused, more active. He looked ahead to each coming day.

The work on our home continues. It will likely be another month before re-piping and remodeling is completed and we again have two fully functioning bathrooms. My wife and I think back to the days before our home became a construction site and wonder when our lives will return to normalcy.

Cheddar does not mind. He greets workers daily as they enter the yard and spends most of the day observing them from his favorite spot on the lawn. He is visibly happy, contented by the feel of grass against his body, the security of routine and the soothing comfort of the familiar.

Silent Partner

Players and owners talk late into the night, discussing ways to split the substantial pot that constitutes National Football League profit. The weeks-long owner-imposed lockout gave rise to union decertification, litigation and, most recently, a new round of labor talks. While uncertainty surrounds the upcoming NFL season, few seriously believe that the games will not be played. There is too much money at stake, too much to be lost at a time when the impact of a cancelled mid-1990’s World Series and a cancelled mid-2000’s NHL season remains fresh in all minds.

The NFL season will be played. After weeks of media and negotiating room battles, players and owners will eventually put aside differences and announce to the world that they have entered into a partnership for the coming years. All’s well that ends well, as Shakespearean scholars might say. Backs will be slapped, hands shaken, greenbacks exchanged, and players will march onto the field in full uniform, secure in their share of the billions that ticket sales, television and advertising revenue provide annually to the sport of football.

Neglected in this scenario is the fan – the third party to the contract that makes possible the sharing of wealth between players and owners. If sport is purely entertainment, as many insist when justifying high player salaries (if rockers and actors can make millions, why shouldn’t professional athletes?), the fan is a necessary part of the show.

There is a reason why games are played in front of packed stadiums, with cameras spanning the rabid crowds and quarterbacks’ calls unheard over crowd noise. It makes for better television, and football, above all sports, is very much a creature of the tube. Sundays are no longer days of rest; they are days of football doubleheaders (tripleheaders, if we count the league’s Sunday night entry), replete with pre-game shows that open with the rising sun and commercials that pad the pockets of players and owners with advertising revenue.

Would the effect be the same if the stadiums were empty? Would players elevate their performance to their present levels if the cheers were not there? Would home viewers tune in to watch games played with “canned” background crowd noise?

As an integral part of the broadcast product, the fan is very much a partner in the business that is professional football. Without the fan’s contribution (both financial and spiritual) to the sport, football does not exist.

Yet, when the time comes to negotiate finances, the fan is a silent partner. He is not privy to the numbers exchanged between players and owners and has no say in the gathering or distributing of revenue. His principal role in the partnership is that of investor, and he will never see a penny of the billions of dollars he pours into the industry. His benefit from this partnership will be unquantifiable - a vague notion that somehow, by investing money and emotion into the NFL season, the quality of his life will improve (a questionable premise for fans of the Detroit Lions, whose teams are routinely amongst the worst in the league).

The fan has not been invited to NFL labor talks. He sits outside the meeting rooms while players and owners discuss how they will divide the money he will invest. Eventually, when players and owners reach agreement, he will be told how much he will pay for a ticket to a Sunday game. And he will accept his fate reluctantly because, in a world where only the loudest are heard, no one will listen to one who has no voice.

Major Gomez

He walked into my office in full military regalia. There was a large display of medals on the front of his uniform jacket. His face bore the stone-cold look of determination.

It was the late 1980’s, and I represented the Forces of Defense of Panama in a commercial matter involving letters of credit, contractual disputes, and what was reputed to be the private jet of the then leader of the nation, General Manuel Noriega. Noriega had recently fallen out of favor with the United States, which questioned the legitimacy of his government. I had therefore been compelled to begin communications with representatives of the government of Panama in exile, individuals recognized by the United States as the true leaders of the nation. Because I represented a governmental institution that would survive the dispute between the factions fighting for control, it was important that I maintain contact with both sides, since the result of the lawsuit would affect whichever side happened to be in power when the case ended.

A few days before, I had received a call from Panama, seeking to set up a meeting. I was told that a certain officer named Major Gomez would come to the office to discuss the direction of the case.

From the moment he walked through my door, I could tell that Major Gomez was someone used to having things his own way. When I inadvertently referred to him as “General” he cut me off, declaring that there was “only one General in Panama.” He then proceeded to tell me, in no uncertain terms, what we needed to do to win the case.

It soon became apparent that, despite his bravado and desire for results, Major Gomez knew nothing about the American legal system. He also was not used to hearing the word “no.” He was therefore shocked when I told him that what he suggested could not and would not be done. I then laid out for him what would necessarily occur in the case, and I could see his brow furrow each time I responded in the negative to one of his “instructions.”

After a couple of hours, Major Gomez’s jacket was off and he was perspiring profusely. He was not hearing what he wanted to hear, and I could tell that he was struggling with how he would break the news to his superiors back home. At the end of our meeting, he left our offices, jacket draped over his arm, with a look of concern.

The case settled at around the time that the United States’ military removed General Noriega from power. I received authority to settle the case from both Noriega’s government and the government-in-exile.

I neither saw nor ever heard from Major Gomez again.

A Crying Shame

Sports columnists are having a field day. When Miami Heat coach Erik Spoelstra disclosed during his post-game news conference Sunday that several Heat players were crying in the locker room, in the aftermath of the team’s fourth consecutive loss (a heartbreaking and gut-wrenching one-point home defeat to conference rival Chicago), the gates opened to a flood of criticism.

The team is soft and lacks leadership, critics said. Many opined that Spoelstra would not survive this latest crisis, just as they questioned his job security when the team opened the season with a less-than-stellar record of 9-8.

The Heat followed their early-season struggles with a string of victories that elevated them to elite status in the Eastern Conference, briefly surpassing Boston as the top team in the East before this latest losing streak saw them drop to third in the Conference (yet still atop their division). The players are clearly frustrated by their inability to defeat the better teams in the league, and Spoelstra’s honest comments, while ill-advised, simply highlight the competitive nature of those players.

The sporting press reacted to Spoelstra’s revelation with combined incredulity, cynicism, outrage and ridicule. Their unsympathetic (and, in some cases, mean spirited) comments brought to mind Tom Hank’s rant in director Penny Marshall’s 1992 film A League of Their Own. Hanks, playing Jimmy Dugan, a down-on-his luck, alcoholic ex-baseball player who has been made manager of a women’s team during World War II, has just reamed one of his players for sloppy execution when she suddenly bursts into tears. Hanks looks on in horror and exclaims: “Are you crying? There’s no crying! There’s no crying in baseball!”

This belief that professional sports are somehow above human emotion has been almost universally embraced by media commentators after Spoelstra’s comments. Yet the commentators are wrong.

Crying is very much a part of competitive sports. Just ask Jim Leyland, the fiery manager of the Detroit Tigers and former leader of the 1997 World Series champion Florida Marlins. Despite his rugged tactics and macho bravado, Leyland will sometimes cry at the drop of a hat, succumbing to emotion when faced with emotional moments. Long-time players retiring from their sport are also regularly reduced to tears when confronted with the realization that their careers are things of the past. Brett Favre’s breakdown during a year-end news conference, when he announced his retirement (the latest in a series of such Favre announcements, believed by many to be his last) is the most recent example of end-of-career tears.

Sports are emotional activities played by emotional people. Success by some is always achieved at the expense of failure by others, and such failure is regularly followed by second-guessing, “what if” scenarios and, in many cases, tears. That is why I question the overwhelming negative reaction to Spoelstra’s comments.

LeBron James and the Miami Heat set themselves up for ridicule when, after James’ ill-conceived ESPN special, “The Decision,” the team held an over-the-top event at the American Airlines Arena likened by many to a championship celebration. I therefore do not begrudge anyone the right to root against the Heat or gloat when the team falls short of expectations (although I will say that it is far too early for such gloating, with the Heat in first place and assured of a spot in the playoffs). But I do take issue with the reaction to Spoelstra’s comments.

Spoelstra’s disclosure that his players gave in to emotion humanized the team. And we should not ridicule anyone’s efforts to put a human face on athletic competition, even when the face is dampened by tears of frustration.

The Girl With The Pixar Formula

How would Pixar do it?

They would first grab your attention by introducing intriguing characters. You would know little of their background, yet the prospect of learning more would keep you glued to your seat. The characters would have to be unique – say a toy cowboy with links to a dated television show, or a flying spaceman who does not realize he is a toy.

They would place these characters in situations conducive to growth. You would not only learn about them as you followed their adventures, you would sympathize with their plight, fear for their safety and yearn for their happiness. The characters would become real to you, transcending their computer-animated origin. They would come to life on the screen.

And then, to keep things interesting, they would introduce variety. The characters would be placed in shifting situations, and their storylines would follow different genres of the film and literary industries.

That is the formula Pixar used to make Toy Story (with apologies to Peter Jackson’s Lord of the Rings) possibly the best big screen trilogy ever filmed.

The first film, Toy Story, belongs to the “Buddy” genre. Its focus on the developing relationship between Woody and Buzz Lightyear is reminiscent of Ridley Scott’s Thelma and Louise and Martin Brest’s Midnight Run.

Toy Story 2 is a “Rescue” film in the style of Steven Spielberg’s Saving Private Ryan, only without the Germans. Its focus is on the efforts by Andy’s toys (Buzz, Mr. Potato Head, Slinky Dog, etc.) to retrieve the stolen Woody from the Toy Collector’s would-be museum of classic toys.

Toy Story 3 is an “Escape” film. From the moment Woody and company begin to hatch their plan to flee the Day Care Center From Hell, the film joins the likes of Franklin J. Schaffner’s Papillon and John Sturges’ The Great Escape as a classic of the genre.

The formula that makes Toy Story great is used by the late Swedish writer Stieg Larsson to success with the Girl With The Dragon Tattoo literary trilogy. Larsson’s novels, while flawed, struck a chord with readers and made them an international sensation.

The first novel, The Girl With The Dragon Tattoo, introduces the two principal characters. Mikael Blomkvist, a crusading journalist with the quasi-underground publication Millennium, is patterned after Larsson, himself a writer for an alternative magazine. However, it is the titular character, Lisbeth Salander, who elevates the series. She is a ninja in the body of a schoolgirl: small, brilliant, tattooed and pierced, with a tortured past that threatens her future. She is unique amongst literary heroines and is largely the reason for the series’ success.

Like Pixar, Larsson takes his principal characters through a wild, genre-bending ride, revealing something new about his protagonists with each book.

The Girl With The Dragon Tattoo begins as a classic locked-door mystery, Blomkvist and Salander joining forces to investigate the decades-old disappearance of a teen girl from a small village. As the novel (and the relationship between the protagonists) progresses, the story leaves the safety and predictability of the “Mystery” genre and enters the sphere of “Horror.” It is Agatha Christie meets Hannibal Lecter, with a climax that shocks and surprises.

Larsson’s follow-up, The Girl Who Played With Fire, belongs to the “Chase” genre, much like Robert Ludlum’s Bourne novels. It is the best of the trilogy because of its focus on Salander’s intriguing character. She dominates every scene in which she appears and makes the reader long for her return when she is absent.

The last of the trilogy, The Girl Who Kicked The Hornet’s Nest, is essentially a “Spy” novel, filled with back-door high jinks and political intrigue. It is Larsson’s most ambitious work, with a large array of characters fighting with conviction for what they believe. Yet it is also the weakest of the three because, for most of the novel, Salander is relegated to the background.

Larsson died before his first novel was published, and never witnessed the success of his series. The writing he left behind evokes a cinematic quality that has been noticed by film makers both in his native Sweden and the United States. His novels became a Swedish film trilogy, with Noomi Rapace delivering amazing performances as Salander – performances that caught the attention of Hollywood, which is wooing her with “mainstream” roles. A Hollywood version of Larssen’s first novel is also being adapted for the big screen by The Social Network director David Fincher. The film is due to be released this year, with young actress Rooney Mara assuming the role of Salander.

It remains to be seen whether the Girl With The Dragon Tattoo films ever approximate the success of the Toy Story trilogy. If they do, it will bear further proof that the Pixar formula works. Character and variety equal success – on both the screen and the printed page.