The Perfect Is The Enemy Of The Good

The phrase “The Perfect is the Enemy of the Good” can be traced back to one of Voltaire’s 18th century poems. Shakespeare expressed similar sentiments: “Were it not sinful then, striving to mend, to mar the subject that before was well?”

Doing a good job becomes almost impossible when we strive to do it perfectly. In many cases, we do not begin the project, much less finish it, since we know it cannot be done perfectly. How many times have we been afflicted with “paralysis by analysis,” pursuing perfection?

Perfectionism can lead to negative consequences. Research suggests that those who suffer from intense perfectionism are at higher risk for suicide. They are driven by an intense need to avoid failure. To these people, nothing seems quite good enough, and they are unable to derive satisfaction from what ordinarily might be considered even superior performance (Dr. Sidney J. Blatt, “The Destructiveness of Perfectionism:  Implications for the Treatment of Depression,” American Psychologist, Volume 49, Number 12 (1997)).

In Stress Management for Lawyers, Dr. Amiram Elwork notes that perfectionism is rewarded in both law school and the practice of law. However, it can lead to negative thinking: “If I don’t do it perfectly, I’m no good; it’s no use; I should just give up,” or “I have to do it perfectly and I can’t quit until it’s perfect.” This type of thinking can lead to isolation and depression.

In his book Lawyer Life: Balancing Life and a Career in Law (American Bar Association, 2003), Judge Carl Horn said that striving for professional excellence is a good and worthy goal.  In sharp and important contrast, trying to achieve perfection is not.  In his book, Letters to a Young Lawyer, In his book, Letters To A Young Lawyer,  Alan Dershowitz wrote a chapter titled, “The Perfect is the Enemy of the Excellent.” He observed that “every book, painting, symphony or speech could be improved.  The search for perfection is illusory and has no end.”

As Judge Horn advises, we would do well to strive for professional excellence but be wary of any tendency we may have toward perfectionism.

Should Judges Allow Juries To Hear A Windfall May Be Bad For A Plaintiff?

Windfall Plaintiff

Around times of big lottery jackpots, it is widely reported that bad things often happen to people who win the lottery or receive a large financial windfall, and the statistics are staggering:

Indeed, 44% of those who have ever won large lottery prizes were broke within five years, according to a 2015 Camelot Group study. The Certified Financial Planner Board of Standards says nearly a third declared bankruptcy—meaning they were worse off than before they became rich. Other studies show that lottery winners frequently become estranged from family and friends, and incur a greater incidence of depression, drug and alcohol abuse, divorce, and suicide than the average American.

Some reports even say that “70 percent of people who suddenly receive a windfall of cash will lose it within a few years.” There are horror stories like Abraham Shakespeare’s:

Abraham Shakespeare was murdered in 2009 after he won a $30 million lotto jackpot. The 47-year-old Florida man was shot twice in the chest and then buried under a slab of concrete in a backyard, ABC News reported. DeeDee Moore, who authorities say befriended him after his lotto win, was found guilty of first degree murder in 2012. His brother, Robert Brown, told the BBC that Shakespeare always said he regretted winning the lottery. ‘I’d have been better off broke.’ He said that to me all the time,’ Brown said.

The odds suggest that it is not only possible that a windfall will leave someone worse off than they were before the windfall, but it is likely. The question we have is, if a plaintiff asks the jury for a large noneconomic damages award, for example, should the defendant be able to put on evidence of the potential harm that such an award could do to the Plaintiff? Should expert testimony on the subject be permitted? We don’t have the answers, but it seems like a topic worth exploring.

Oregon Bankruptcy Judge Finds Erin Andrews Stalker Responsible For Share Of Verdict

Erin Andrews bankruptcy

We have previously posted regarding the Erin Andrews peephole trial on several occasions. We coverage of the trial here. We then covered the multi-million dollar verdict here. Here, we discussed it in the context of lawsuits not being worth the amount of money that the plaintiff requests in the complaint and we questioned whether Andrews would ever collect the alleged stalker’s, Mr. Barret’s, portion of the verdict:

In the Erin Andrews case, the “$75 million lawsuit” tag turned out to be misleading. The Plaintiff’s attorney did not ask the jury for a specific amount of money in closing, and the jury ultimately awarded $55 million. Of the $55 million, the hotel owner defendant was required to pay $26 million when its share of the verdict was reduced proportionate to its percentage of fault. The $28 million portion of the verdict that the jury assigned to the individual defendant (who is currently serving time in prison) might as well be forgotten, as that will never be collected. With the uncertainty of what will happen on appeal, and potentially applicable insurance policy limits that are well below the amount awarded, the case will likely settle for significantly less than the jury awarded.

As it turns out, Mr. Barret filed bankruptcy and asked the bankruptcy court to discharge his duties to make good on the Erin Andrews verdict. Reportedly, “Mr. Barrett’s bankruptcy allowed him to cancel a portion of the nearly $160,000 in debt he faced, but Ms. Andrews’s lawyers argued that federal law prevents him from getting out of paying damages owed for recording and posting a video showing her naked in her a hotel room.” Judge Trish Brown, Oregon bankruptcy judge, denied Barret’s request that the damages award obligation be discharged, concluding that the damages owed by Barret to Erin Andrews were non-dischargeable.

Despite the bankruptcy judge’s ruling, we still agree with former professor at this author’s alma mater and current legal analyst for Sport Illustrated, Michael McCann’s conclusion that Barret is likely judgment proof:

Andrews’s capacity to collect the $55 million in damages will soon come into focus. First consider that 51% of her damages—about $28 million—are assigned to the 54-year-old Barrett. It stands to reason that Barrett is what’s known in law as ‘judgment proof,’ meaning someone who is ordered by a court to pay damages but lacks the financial wherewithal to do so. Before his incarceration in 2010, Barrett was an insurance executive, which presumably paid him a good salary. But after his release in 2012, it’s not clear if he has been employed. It’s a safe bet to assume he hasn’t amassed anything near $28 million. In fact, in 2010, Barrett’s attorney, David Willingham, said Barrett had lost entire life savings. If Andrews receives any money from Barrett over the rest of their lives, it will likely be a very small amount.

This one illustrates one of the three major challenges that Plaintiff’s attorney’s face. Sometimes they have a great case on liability but no damages. Other times they have a great case on damages, but there is no liability. And other times, they have a great case on liability and damages, only to find out that the defendant is a turnip-turned-attempted-blood-donor.

Real Lawyers Don’t Cry

My parents, Grady and Mary Mauney, were good friends and neighbors of the local Chevrolet dealer, Bill Turner, and his wife, Trilby. They had two kids about my age, and then later had another child, TK. At a young age, TK developed meningitis and was hospitalized at Bowman Gray Hospital in Winston-Salem, North Carolina. TK was eventually placed on a ventilator, her prognosis poor. I rode with my parents from Forest City, North Carolina to see Bill and Trilby at the hospital. I still remember the steadfast strength shown by Bill Turner while facing this personal tragedy. Trilby demonstrated her own strength through her faith in God.

We listened as Bill described how the doctors had just reported the results of an EEG, which showed no brain activity. They were faced with a gut wrenching decision. I watched as my Dad listened, saying little, but offering his support through his presence there. His eyes welled up with tears. I had never seen my Dad cry. He probably had, especially when his brother Charles died a few years earlier. My Dad was a real man, lover of sports, a father of three, husband to my Mom. He was a professional, a dentist, who took pride in his work and his family. But I had never seen him cry. Until he sat next to Bill Turner and learned of TK’s likely fate. She died shortly after our visit.

As lawyers, we are most often problem solvers, working through difficult situations for our clients, perhaps resolving some conflict. We are trained to dispassionately scrutinize the facts and analytically apply the law to those facts. In doing so, lawyers often neglect their internal feelings, suppressing their innermost emotions and thoughts in favor of cold, analytical reasoning. The result is that lawyers often struggle with their own mental health, not paying enough attention to that side of ourselves. We need to be reminded of the importance of our own emotional well-being, taking the necessary steps to be both physically and emotionally healthy.

It was appropriate for my Dad to cry that day, as he visited with Bill and Trilby Turner. It was an emotionally healthy thing for him to do. It showed that he understood the depth of their suffering.  As professionals, we should learn that lesson and let ourselves fully experience our emotions under appropriate circumstances.

Friday Links

gb

Okay, so we here at Abnormal Use saw the new Ghostbusters film last night, and we can report that we enjoyed it! Funny, for the most part, and save for the wholly typical big budget action climax at the film’s end, the film worked! In fact, the only cringeworthy moments were the cameos of the members of the original cast (which seemed awkward, forced, and generally inconsistent with the other portions of the film). Our recommendation: Go see it. Above, to celebrate the release of the new film and the renewal of the franchise, we’ve appended the cover of Ghostbusters #1, published not so long ago in 2011.

Congratulations to our own John T. Lay, who has been elected president of the International Association of Defense Counsel (IADC)! For more information on that news, please see here.

Did you read Keith Lee’s “Is PokemonGo Illegal?” blog post this week? Speaking of which, our favorite legal tweet of the week is Pokemon related:

Gotta Catch ‘Em All: Abnormal Use On Pokemon Go

As many of you are now aware, the Pokémon Go app was unveiled last week in the United States. Although the app has only been officially released in limited areas, the app has had more than a significant impact on Nintendo’s (the parent company) worth. In just a matter of days after the release of the new Pokémon Go app, Nintendo’s value increased by more than $10 billion.

The popular app has also stirred up quite a few entertaining stories, and there are more to come. One particularly interesting anecdote was shared by a gentleman named Boon Sheridan via his Twitter account. Mr. Sheridan reported that his home (which was previously the location of a church over 40 years ago) was designated as a gym by the app. So over the past few days, scores of Pokémon Go participants have appeared outside of Mr. Sheridan’s home to “train” their Pokémon characters in this virtual gym. Initially, Mr. Sheridan seemed amused that his home was identified as a gym; however, he may not have realized the app’s popularity and his amusement soon turned to irritation as people continued to loiter outside of his home for 10-15 minutes and then leave. Mr. Sheridan complained of constant traffic and even the possibility of decreasing property values. Recently, there was also a motor vehicle accident reported in Auburn where a driver went off the road and struck a tree while playing the Pokémon Go game.

With so many interesting stories surfacing every day, it seems inevitable that at some point someone will bring a claim against the Nintendo Co. I believe it will be unlikely that a driver distracted by the game will have success in bringing a claim, but maybe an unsuspecting pedestrian chasing a Squirtle into a precarious situation, or a player going to the wrong gym at the wrong time, will be the first to take a shot at Nintendo. I think this may be the most likely scenario judging from the reports of extremely odd locations of some of the Pokémon landmarks and strange encounters that have occurred while playing the game.

In any event, it will be interesting to see if the app will maintain its popularity and player enthusiasm, and if so, what stories will we hear next.

Snapchat Target Of New Suit Over Allegedly Offensive Content

According to reports, social media giant Snapchat has been hit with a class-action lawsuit over sexual content. While perusing the app, the 14-year old son of Plaintiff Lynette Young apparently came across pictures of Disney characters that included “pornographic text and innuendo next to the photographs.” Young, presumably upset with her teenage son viewing images of cartoon characters admonished by sexual references, retained famed attorney Mark Geregos to sue Snapchat on her behalf as well as all others similarly situated.

The complaint, filed in California federal court, alleges that Snapchat failed to warn users about discoverable sexual content on its app. Specifically, the suit targets the “Discover” section of the app where users can browse content posted by media partners. In particular, the complaint identifies two articles titled, “People share their secret rules for sex” and “10 things he thinks when he can’t make you orgasm,” as prime examples of this allegedly harmful content. Young alleges that such conduct is “profoundly sexual and offensive material to children” and in violation of the Consumer Decency Act. While Snapchat has yet to be served with the complaint, it has issued the following statement on the lawsuit:

We haven’t been served with a complaint in this lawsuit, but we are sorry if people were offended. Our Discover partners have editorial independence, which is something we support.

Just a couple of months ago, we here at Abnormal Use wrote about another Snapchat lawsuit in which the social media company was sued for allegedly causing a motor vehicle accident in which the at-fault motorist was distracted while using the application. We questioned the merits of that suit arguing that ultimate liability fell on the user. At first glance, the same may hold true here – with one caveat. Ultimately, social media sites are filled primarily with user-generated content, not so much content posted by the app maker itself. Some of this content you certainly may have a problem with children seeing if discovered. While this case is admittedly distinguishable in that does not arise over content posted by a “friend,” but rather by a “news” source, the principle is the same. A social media app in many ways is an extension of the Internet itself. User beware. All parents in this day in age know as much.

The caveat to this idea is that some of this allegedly offensive material at issue in this case comes through Snapchat’s Discover section. Snapchat denies having any control over this content, which may in fact be the case. While it may not control the content itself, it does control the Discover feature and, thus, presumably could do something to filter or, at a minimum, warn users of the sexual content. With that said, Snapchat still remains a bit of an anomaly to us, as we are apparently light years beyond the age of the average user. So, what do we know anyway? Remember that time, we did try out the app? It didn’t go so well.

Friday Links

Did you see that Steven Adler, the former Guns N’ Roses drummer, played with Axl Rose and Slash for the first time since 1990? How about that?

Don’t forget that you can always follow Abnormal Use on Facebook by going here!

Best Lawyers published its Spring 2016 Business Edition this month. In this edition, Best Lawyers printed its inaugural directory of “Women in the Law.” Our Greenville attorneys Debbie Brown, Stephanie Flynn, and Jennifer Johnsen were honored in this edition with listings. For more information, please see here.

Our favorite legal tweet of late comes from our editor, who recently wished the Overlawyered blog a happy 17th birthday

On Burger King’s New Mac N’ Cheetos

Any regular follower knows that we here at Abnormal Use love an entertaining headline about the trials and tribulations of the food service industry. From hot coffee burns to heart attacks involving “triple bypass” burgers, the world of food and drink has given us much to write about over the years. Why are these stories so engaging? Maybe it is because we can all relate to the everyday people involved. We have each spent our fair share of time eating at a franchised chain restaurant or sitting in a drive-thru line. Or perhaps it’s because our articles are drafted during a lunch break, subconsciously leading our trusty writers to focus on topics that give them an appetite. But we are entering dark times in the food service industry.  After opening our Internet browser this morning and reading today’s headlines, we fear the end is near. They have simply gone too far. I cannot – and will not – get on board with this. Behold, faithful readers, Burger King’s new Mac N’ Cheetos:

test

That’s right, folks. Soak it up in all its greasy, cheesy, consumeristic glory. Deep-fried sticks of macaroni and cheese encrusted with Cheetos-flavored breading. This writer is a big supporter of restaurant chains and snacking brands partnering together to promote their products under the right circumstances. Taco Bell’s Doritos Locos Taco? Amazing (especially in Cool Ranch flavor). By the way, does anyone really know what those blue flakes on the Cool Ranch Doritos are made of? They need to start selling those bad-boys by the jar in the grocery store. I’d sprinkle them on every dish in place of salt and pepper. But I digress. Back to the offensive issue at hand. Burger King seems to be trying to run with the success and overall deliciousness of Taco Bell’s Doritos Locos Taco by rolling out this sad excuse of a snack. Cheetos are incredible. Mac and cheese is a classic American dish. However, there is no circumstance under which they should be served as one item. Hey, I’m just one guy. And I am certainly no foodie. But if you ask me, this is troubling.

Another Day In The Life Of A Lawyer: The Highs And Lows Of Travelling

As lawyers, our work often necessitates a good bit of travel. Whether by car to attend a deposition across the state or plane to attend a conference on the opposite coast, traveling affords us the opportunity to see parts of this great country. Most often, travel is an aspect of our profession we enjoy. It certainly ranks well above conducting late-night legal research in one’s office. Other times, traveling for work purposes can turn into an utter nightmare (as can traveling for any purpose).

Recently, I took a deposition in a small town in Mississippi situated a few hours from the nearest airport. While it may not sound enjoyable, I looked forward to it, as I had never spent any time in the state apart from driving across Interstate 20.  he trip started off well enough. I caught a flight to Jackson, rented a car, and traversed through acre upon acre of farm land before reaching my destination. After checking into my hotel, I headed to Doe’s Eat Place, a James Beard Award-winning restaurant housed in a former turn-of-the-century grocery store listed in the National Register of Historic Places. You won’t find a menu at Doe’s, but the waitress informed me that they served steak, tamales, and spaghetti. I chose the steak, and I discovered the best 10 ounces of filet mignon. Sampling local fare is a travel perk, and Doe’s set my trip off in the right direction.

The good vibes from Doe’s, however, were ephemeral. The following day, I took the deposition without a hitch and returned to Jackson to catch my return flight home. Unfortunately, there were no direct flights from Jackson to Greenville, South Carolina, so I made a pit stop in Atlanta, the city where this story begins to sour.

My flight from Atlanta was scheduled to depart at 8:59 p.m. and arrive in Greenville at approximately 10:11 p.m. (In case you are wondering, it is a 29-minute flight, but in typical airline fashion, they built in a cushion in case, well, you know). I boarded the plane around 8:30 and gladly traded my coveted aisle seat to another passenger in exchange for a middle seat. It is only a 29-minute flight, after all, and worth the personal sacrifice to please another. After assuming my temporarily uncomfortable position and listening to the flight attendants deliver the standard, monotonous safety instructions, the pilot made his own announcement over the radio:

Ummmm [never a good thing to hear from the pilot] … We have discovered that the plane’s braking mechanism is leaking some hydraulic fluid. The good news is that we have the replacement part at the airport. The bad news is that it is on the other side. Maintenance is telling me it will be another hour before we get up and running. Worst case.

I understand the need for safety, especially when we are about to undertake a short, yet epic battle with gravity. Brakes come in handy at the end of such a journey. So, I chalk it up as a minor inconvenience and figure I will be home slightly later than my scheduled arrival (given the pre-planned buffer). If only the estimated “worse case” was so. At approximately 9:45, the pilot announced that maintenance faced some difficulty with the installation process and estimated it would be another 45 minutes until departure. Not wanting to keep us hostage, the pilot stated that we are free to leave the place so long as we stay near. Remembering the bar immediately outside the gate, I deplaned and sought a beer.  Only after leaving the plane did I discover that the bar closed at 10. Still in good spirits, I found a nearby Chick-fil-A and grabbed a sandwich (I actually ordered nuggets by the way, but I am not complaining about the mishap).

When I returned from Chick-fil-a, I was greeted by the unwelcome sight of everyone exiting the plane. Apparently, the whole “another 45 minutes” thing was a gross understatement. To the airline’s credit, its representatives tried to lighten the mood by providing snacks and non-alcoholic beverages. They also gave me a free drink coupon good for one beer or cocktail. The rub, however, was that it could only be used on the plane.  he plane that we had just been kicked off of and wanted desperately to board once again. The bitter irony.

Several minutes before midnight, the pilot came out and announced that the plane had been fixed and we were ready to re-board. Unfortunately, the gate attendant had gone AWOL. After a 15 minute search, she was located and we proceeded with boarding the plane. Again. Took the middle seat. Again. Listened to the standard, monotonous safety instructions. Again. At least this time, however, on a plane with a braking mechanism smack full of hydraulic fluid. We eventually pulled away from the gate, rose into the air, and landed around 1:15 a.m. A mere 3 hours after my scheduled arrival. After retrieving my car from the garage and driving home, I strolled wearily into my house, reached into my pocket, and felt something unfamiliar: the free drink coupon, apparently forgotten amidst the frustration of a lawyer’s plight to get home.

After writing these thoughts and sharing this story, I can’t help but be reminded how travel is one of the many things I love about the practice of law. Despite the late-night, mid-week nightmare trying the get home, I am thankful for the experience. At the end of the day, I got to take a deposition, eat a steak at Doe’s, and experience a state to which I had never traveled. Certainly, it would have been better with an aisle seat, a beer, and a plane with functioning brakes, but we can’t expect everything to be perfect, can we?