Now that I’ve lured you in to this month’s column by means of an alliterative and slightly salacious title, let me digress to follow up on the column from two months ago, “On Jerks.” I have been whelmed (not really overwhelmed, but at least whelmed) by the reaction to it. It seems that there are literally tens of ones of you readers out there, and a fair number of you have corresponded with me concerning your own reminiscences of the late Elbert Foster, mentioned prominently in that column.
As a bonus, here are a couple more Elbert anecdotes:
From Judge Phil Howerton, a tale of just plain meanness-- The old, old, old courthouse used to have a snack bar in the basement. I dropped in there on my way to court one morning, dressed in a new khaki suit, and got a cup of coffee, unfortunately with no top. I got on the elevator on my way to three, when the lift stopped at one. Door opened and Elbert, with a client, got on. I moved to the back of the elevator and raised my cup to chest high to keep it out of the way. No one else was on the thing so there was plenty of room. Nevertheless, Elbert proceeded to back all the way up to me, pushing me to the back of the box and causing my coffee to spill all over me and my suit. Drenched me. I yelled at him. "Elbert, look what you did!" The SOB turned around and looked at me and said, "Boy, you are going to have to change that suit." He turned around without another word. No apology, no nothing. If I had had any more coffee I would have poured it over his damn head.
Lest one object that I cast nothing but opprobrium upon the memory of the departed, consider this appreciation from Ray Owens of how Elbert dealt with what is one of my pet peeves, the gratuitous motion to dismiss-- There are of course many stories about that hairy-eared man [author’s note; Ray was not the only person to remark upon the hirsute nature of Elbert’s aural appendages] but he was a great trainer in a Zen sort of way. You may recall that when a defense attorney (usually young --not I) pled the standard 12(b)(6) defense which was of course copied from some defense firm form file which in turn was taken from the sample Answer in the Rules, Elbert would immediately send one interrogatory asking that you state the factual basis for your defense. If you tried to play cute he apparently noticed a motion to compel and he would force folks to show up. Long before Rule 11 had true teeth, he taught a number of folks not to put crap in their pleadings.
Now back to the topic. First, let me again be lawyerly and define what I mean by “vicarious voyeur.”
By “voyeur,” I do not mean necessarily to connote an element of sexual gratification, but rather “someone who enjoys learning about the private details of other people’s lives.” I could have used the alternative term “busybody,” but that is a frumpy sounding word that puts me in mind of the nosy neighbor Gladys Kravitz from the sixties TV sitcom “Bewitched” (yes, in my callow youth I wasted way too much time in front of the boob tube). Also, I’d lose the alliteration and lurid come-on for the title.
By “vicarious,” I mean “experienced in the imagination through the feelings or actions of another person.” In other words, we do not even directly observe the experience: we derive it second or even third hand from the words of whoever is telling us about it.
For example, as a vicarious voyeur, the lawyer does not have the direct experience of the motor vehicle accident that injured her client. Nor does she have the indirect experience of the witness in the car behind who saw the accident unfold. Her idea of the accident is entirely a reconstructed composite in her own mind of what the client and the witness tell her of what they either directly experienced or observed.
In my previous two columns, I wrote about, respectively, jerks and peacemakers. It was not in the least novel to suggest that some lawyers are jerks (otherwise there would be no lawyer jokes) and that some lawyers are peacemakers (just Google it and see how many hits come up). But now I think I may have hit upon an original thought—ALL LAWYERS ARE VOYEURS (or at least most of them).
Think about it: we are always learning about the private details of other people’s lives. That’s the very essence of confidential attorney/client communications. We learn those details in all sorts of contexts. While the most obviously voyeuristic of those may be in the criminal and family law practice areas, consider also that business and transactional lawyers deal all the time with clients who have personality conflicts, struggles for power and control, desperate financial situations, etc. Even the undertakers of the profession--trust and estates lawyers--whose clients are mostly dead, often have to deal with interfamily conflicts approaching epic Game of Thrones proportions.
The other point is that not only do we learn about other people’s lives, we tend to enjoy it. Why else practice law (putting aside the making a living thing) when what we do is so often relentlessly stressful?
We are students of human nature. A good lawyer has to “know people” as well as know the law. There is no better way to learn about human nature than to deal with people different from ourselves and try to help them with their most vexing problems.
The most enigmatic filmmaker I know of short of the surrealist Luis Bunuel is David Lynch. From the virtually incomprehensible “Eraserhead” to the totally incomprehensible “Inland Empire,” his work is fascinating if you allow yourself a close aesthetic distance to the dreamlike nature of his films. I ran across this quote of his about everyone being voyeurs:
I’m convinced we are all voyeurs. It’s part of the detective thing. We want to know secrets and we want to know what goes on behind those windows. And not in a way that we would use to hurt anyone. There’s an entertainment value to it, but at the same time we want to know: What do humans do? Do they do the same things as I do? It’s a gaining of some sort of knowledge, I think.
Having confessed to being a David Lynch fan and therefore raising suspicion that I may in essence be a deranged deviant of a person rather than the genial oaf my outward demeanor may project, I will proceed to raise further doubts about my character by giving you a few examples from personal experience of what it means to be a vicarious voyeur.
As a practicing lawyer, the most fun I have ever had was to represent a member of the Outlaws Motorcycle Club (not gang, mind you) in a federal RICO trial in the Western District some years ago. My client was the lone diversity member of the group (a native of Puerto Rico—who knew a Hispanic could patch as an Outlaw?). My primary role was to convince him to let me represent him on a full basis rather than as standby counsel, which would of course have been disastrous for him and his co-defendants. Having accomplished that, I mostly sat in the courtroom for a month watching a parade of witnesses, including former members, “old ladies” (i.e. girlfriends of members), non-member “associates,” law enforcement personnel, alleged victims, topless dancers/meth heads (dressed demurely for court, of course) and other assorted denizens of the “One Percenter” biker world. This was far more entertaining than even binge watching “Sons of Anarchy” and far safer and less of a commitment than joining the club as a “prospect.” I also got to sit next to Jim McLaughlin’s client, the vice president of the club chapter, who though reputedly capable of violent outbursts was nonetheless a gifted raconteur who kept me amused with his patter when the courtroom action tended to lag. It all ended somewhat satisfactorily with a global plea agreement after in my only other significant contribution to the common defense cause I convinced the judge to exclude the testimony of a member who had decided to cooperate with the government. In doing so, I may have saved his life, as it is a fundamental tenet of the Outlaws that “snitches are a dying breed.” The Outlaws got reasonable sentences and then-AUSA and later U.S. Attorney Gretchen Shappert (a formidable and eccentric character in her own right) got an array of Outlaws memorabilia for her trophy room.
That was certainly a voyeuristic learning experience. As to the violent events, it also thankfully was a vicarious one. It is a powerful enough experience to hear a witness testify as to how an Outlaw jammed the barrel end of a baseball bat down his throat: it would have been something else altogether and altogether disgusting to have been in the bar and seen the incident actually unfold.
I think you get the point, but I also want to talk briefly about the great voyeuristic opportunities one has as a judge. I was a superior court judge for a scant three years and loved just about everything about it except for the politics (more about that perhaps in a future column). The dirty little truth is that in a jury trial the judge has the easiest job of them all. He doesn’t prosecute or defend the case like the lawyers, his freedom or property isn’t on the line like the parties, he doesn’t have to keep up with records like the clerk, he doesn’t have to worry about security like the bailiff, he doesn’t have to record the testimony like the court reporter, he doesn’t have to testify like the witnesses and thank goodness he doesn’t have to decide the case like the jurors. All he has to do pretty much is to stay alert enough to rule on objections (great to have a multiple choice of only two, “sustained” or “affirmed”, so that just by chance you’re right at least half the time), put together pattern jury instructions in some semblance of order and let everybody know when it’s time to take a break. That leaves a lot of psychic headspace to absorb and contemplate the drama of what’s happening in the case, which can often be amazing and far from one’s actual experience or any experience one would like to have.
I could give lots of examples of strange tales: the cat lady with 97 living cats in a filthy trailer home with dozens more dead cats kept in shoe boxes (the smell would have knocked the proverbial buzzard off a shit wagon); the case I refer to by the triple non-politically correct descriptor “redneck midget pervert” (I’ll tell that story to anyone who buys me a beer); the case of the grandfather of a Panthers cheerleader who shot the other grandfather to death and prevailed on a defense of self-defense despite having admitted to placing one of his own handguns in the hand of the victim after he shot him while the victim was sitting in his truck (he was convicted of obstruction of justice for that, but the not guilty on the homicide charge seems to me to be explicable only by the adherence in Wilkes County to the extra-judicial principle that sometimes the victim is such a no-good son of a bitch as to “deserve a killin’”).
One last anecdote to bring in a touch of smuttiness that you were hoping to read about when you saw the title to this column. As a special judge, I sometimes came into town to find myself presented with an oddball case that for some reason no resident judge wanted to fool with. That was the case in my foray into Alamance County for the trial of a particularly nasty sex abuse matter involving a creepy shade tree mechanic cum sexual predator reminiscent of the Dennis Hopper character in David Lynch’s best-known film. “Blue Velvet.” He was particularly fond of the accoutrements of his perversion, including but my no means limited to a collection of personal vibrators. The case had been pending for nearly five years before trial, and for all that time the vibrators had been kept dormant in an official evidence bag as fruits of a search of the defendant’s residence conducted pursuant to a search warrant.
During the trial, the prosecution wanted to introduce the vibrators into evidence as exhibits. I ruled that it would be prejudicial to introduce and show to the jury all of them (I recall the number to be in excess of a half dozen), but that I would allow one to be shown to the jury. And it sort of went without saying that it would not be passed around to the jurors for their inspection and handling, but rather would just be held up by the witness for display to them.
The witness was the female detective who had directed the search and collected the evidence. After going through the requisite litany to establish chain of custody, she pulled one of the examples out of the bag and held it up for viewing by the jury. The specimen turned out to be an anatomically correct though enhanced in scale model of a male reproductive organ, bright red in color. At that point, the five year old batteries showed their potency and sprang to life. The thing commenced to shimmying and humming in the witness’ hand. There then ensued a furtive though frantic effort by both the detective and the prosecutor to shut it off—to no avail. The prosecutor then grabbed it, stuffed it back in the bag, and kicked it under the reporter’s desk without saying another word. He then proceeded to another line of inquiry as if nothing surprising had happened.
Meanwhile, in a remarkable show of judicial restraint, I kept to myself the observation that popped into my head that, sort of like for the Energizer bunny those batteries “just keep coming and coming . . . .”
Now, for a coda to this month’s column, I note a connection between my Outlaws client and David Lynch. Lynch over a quarter of a century ago produced the phantasmagorical TV series “Twin Peaks” (the resurrection of which is eagerly anticipated for the 2017 season). My client had been employed as a greeter/bouncer at the “Twin Peeks” strip club formerly located on North Tryon Street and recently shut down due to eminent domain action by the City for the light rail extension. The English majors among you will recognize that “peaks” and “peeks” are homophones; i.e. words that are identical with each other in pronunciation, but different in meaning. Especially erudite English majors will recognize that “Twin Peaks” can be intended as an example of “hypocatastasis,” a figure of speech being a direct and implied comparison; i.e. a metaphor without a verb. In this case the comparison is quite obviously to a pair of female mammary glands. Put “Twin Peaks” and “Twin Peeks” together in a sentence such as “I had twin peeks at her twin peaks” and you have an example of “paronomasia,” a pun in which similar sounding words but words having a different meaning are used.
So you learned something educational from reading this, didn’t you? Far be it from me to just pander to my readers’ baser instincts.