Malice Like A Rolling Stone

A short one today, but this is a big deal.  Your “holy shit” moment of the day comes from Judge Glen Conrad, who recently issued an opinion sending Nicole Eramo’s defamation case against Rolling Stone Magazine to trial.  The judge found a material question of fact existed for a jury to consider if Rolling Stone acted “with malice” in publishing the now-debunked Sabrina Rubin-Erdley story “A Rape On Campus.”

Nicole Eramo sued Rolling Stone for defamation in the wake of the article’s publication, addendum, then retraction after “A Rape On Campus” had been exposed as a “journalistic failure” and the claims of “Jackie’s” rape “wholly unsubstantiated” following a police investigation.  Both sides moved for summary judgment.  It didn’t look good for Nicole Eramo, as she was considered a “public official, public figure, or limited-purpose public figure.”  That meant a higher standard for the case kicked in, and Eramo would have to show by clear and convincing evidence that “A Rape On Campus” wasn’t just publishing false statements that harmed her.  Eramo had the added burden of showing Rolling Stone published these false statements with “malice,” defined at a bare minimum as “reckless disregard for the truth.”

Surprisingly, the Court found there was a question of fact over whether Rolling Stone published “A Rape on Campus” with “reckless disregard for the truth.”  The opinion notes evidence that shows a reasonable jury could see Sabrina Rubin-Erdley “had obvious reasons to doubt [Jackie’s] veracity” or “entertained serious doubts as to the truth of (her) publication.” The story pitch could be construed as a designed to overlook contradictory evidence.  Rubin-Erdley didn’t investigate some of the named sources at the heart of the story.  Worse still for Rolling Stone, evidence exists their fact-checker was aware of inconsistencies in the story and “Jackie’s version” wasn’t properly vetted.  All this goes to the judge finding a material question for a jury’s consideration on whether this was “reckless disregard for the truth,” and therefore the “actual malice” needed for the defamation suit to proceed.

This is a big win for Nicole Eramo, and poses an interesting scenario going forward.  We now know the media regularly ignores facts and simply works with a pre-determined narrative.  If Rolling Stone has to pay Nicole Eramo as a result of this suit, it could set a precedent for other courts.  Not properly checking sources, publishing information that simply isn’t true, and sloppily copying from the AP’s Big Story could put publications and journalists at risk for defamation suits in ways we’ve not seen before.

Stay tuned.

h/t Robby Soave

Remembering West Irish Street

It was approximately eleven AM when the power went out at my West Irish Street office in Greeneville.

It wasn’t a great start to the day as I had emails to answer, a meeting with a client in an hour, and a contract that needed printing.  These tasks looked insurmountable given the electricity was off at my office.  I’d paid the bill, that much I knew.  The rest of the street didn’t look like it had any issues.  I stepped outside on the front porch of my office and looked around.

Immediately, I knew what caused the outage.  The old guy across the street looked at me, large utility gloves over his hands, wielding tools.  He yelled from across the street to me.

“Shit, did I turn off your power? I’m sorry, I was trying to screw with that old bitch that lives next door.”

That toothless old man with a penchant for creating moonshine in his backyard was one of the more colorful characters I remember from my earliest days practicing law in Greeneville.  His next door neighbor was an old churchgoing lady who saw alcohol as the devil’s brew and continually threatened him with police calls.  His response was to urinate on her front porch at two in the morning, try to shut off her water and power, and have his son’s roosters bred for cockfighting defecate in her back yard.

I never took an issue with the old man or his son.  On at least one occasion the son actually helped me out on a case, providing information that led to a not guilty for my client.  The son was a horrendous alcoholic with a bad tendency to get into shouting matches with his on-again, off-again girlfriend at the early hours of the morning.  One of my favorites went something like this:


Eventually I left West Irish Street behind, and moved to a newer, brighter, better office.  I live in a different city, and have a different perspective on life and work than I did when I first moved into that office.  It recently changed hands to a new owner, and during the sale I inquired about the old man and his son.

“Mr. Seaton, that house burned to the ground about a year ago, if my memory’s still good.”

I recently returned for a brief appearance in Greene County General Sessions Court.  After eating my requisite steak tacos at the best dive in town, I drove by my old office.  Sure enough, what once was a site of entertainment, confusion, and occasional craziness was gone.  Nothing remained save for a little scrap of land.

I hope the old guy and his son are ok, and they’re out somewhere living the real life version of the Discovery TV show “Moonshiners.”

To Melanie and Jimmy, With Love

TO: Dean Melanie Wilson, University of Tennessee College of Law

CC: Jimmy Cheek, Chancellor, University of Tennessee

Dean Wilson:

I read this week with some concern of your proposed “investigation” into a tweet made by Professor Glenn Reynolds regarding the riots in Charlotte. That tweet is below.


Professor Reynolds never advocated murder. He certainly didn’t condone aiming for people blocking the roads on I-277 and pulling innocent bystanders out of cars. If anyone were to take the situation into context, it was an advocation for self defense from a man who remembers Reginald Denny, a truck driver, dragged from his vehicle during the Rodney King riots in LA and horrendously beaten. Professor Reynolds has since acknowledged he could’ve worded one of his tweets better, and offered examples that would have provided a better grasp of his message.

This tweet and subsequent clarification wasn’t enough for those who believe in the current ideology that words can hurt and harm. Twitter suspended Professor Reynolds’ “@instapundit” account until he deleted the above tweet.  USA Today suspended his biweekly column for a month.  Worst of all, you decided to “investigate” him with the support of Chancellor Jimmy Cheek, a member of UT’s staff with his own set of special problems.  An excerpt of your statement is below.

“I am aware of the remarks made last night on Twitter by Professor Glenn Reynolds …Professor Reynolds’s comments do not reflect my views and opinions, nor do they reflect the values of the college and university.

University administrators, college faculty, and I are investigating this matter.

My colleagues and I in the university’s leadership support…all forms of free speech, but we do not support violence or language that encourages violence.

Professor Reynolds has built a significant platform to discuss his viewpoints, but his remarks on Twitter are an irresponsible use of his platform.” (my emphasis)

Yes, Professor Reynolds has built a significant platform through his Instapundit blog and Twitter account to discuss his viewpoints.  It is also his own, and not one endorsed by the University of Tennessee College of Law, paid for by the College of Law, or even given attention by the College of Law until recently, when the Professor said three words that hurt someone’s feelings enough to get his Twitter account briefly suspended.  Since his acts of contrition weren’t enough for you and the rest of the university, you decided to “investigate” him.

I’ve attempted to contact you personally to determine the nature of this “investigation.”  Your assistant informs me you’ve received a tremendous amount of contact from concerned parties interested in what course of action you plan to pursue.  She also tells me that you’re personally responding to each and every party who calls, and as of yesterday you were “overwhelmed” with the amount of contact.

You should be “overwhelmed.”  You should also be ashamed of yourself for casting your lot with the outrage mob calling for Professor Reynolds’ head.  It’s an irresponsible act unbecoming a dean of a law school, an institution ostensibly designed to bring competent attorneys into the world instead of shielding them from nasty bad words that make them feel “unsafe.”  This should be the biggest black mark on your career as Dean of the College of Law, as you’ve now shown only those who toe the leftist, regressive viewpoints are tolerated as educators at your institution.

Dean Wilson, you’re dangerously close to embarrassing yourself and the University with your witch hunt against Professor Reynolds.  Smarter folk than I entertain thoughts this could open the College of Law up for litigation.  The University’s already spent quite a sum settling a spurious Title IX lawsuit with former students, and I doubt very seriously those holding the purse strings want to settle another, especially one regarding a nationally respected, tenured professor.

The game is up.  You’re done.  You have one option, and one option only.  Cease any and all “investigation” into Professor Reynolds for his tweet and blogging outside the University of Tennessee College of Law, and apologize to him publicly. If you do not, statistics prove the results will be disastrous for Rocky Top’s vaunted law school.

Consider the case of the University of Missouri, or “Mizzou,” who chose to side with protesters and silence dissenting viewpoints.  Enrollment and donations plummeted so quickly the college had to close one of its dorms.  If that’s not enough, think of the backlash at DePaul University, where the chancellor resigned and the school’s Facebook rating plummeted to one star after silencing conservative provocateur Milo Yiannopolous’s scheduled campus talk.  Those are two examples of many where academics attempted to stifle someone or ruin a life over a tweet or blog post.

The same could happen to the University of Tennessee College of Law.  I’m not saying I personally plan to wage war with the school.  I have better things to do with my time than go after an institution encouraging courses on animal husbandry law instead of teaching students the subjects necessary to pass the Bar Exam.  Just don’t be surprised when the backlash hits. Consider this a warning of what’s to come.

Best Regards,


The Vice Of Bad Law Reporting

Never expect VICE to shy away from divisive, clickbait headlines, especially when it comes to calling people names. A post filed yesterday on the “underground news” site blasted the following headline:

Why Conservatives Are Picking Sides in a Lesbian Child Custody Battle

Divisive rhetoric aside, the article itself contains several outrageous statements at the heart of an issue litigated across the nation.  Now that same sex couples have the right to marry, and have previous marriages celebrated in all fifty states thanks to the Obergefell opinion, where do same sex couples with children stand with regards to child custody disputes?  Do same sex couples with children have the same custodial rights as heterosexual married couples?  Is this a subject left to the judiciary, argued case by case, or is this a domain of the legislature?  The judge at the heart of the case outlined in the VICE article, Gregory McMillan, seems to be pretty clear where his role lies.

[McMillan] said it was not up to the courts to enact “social policy” via legal rulings and a strict reading of the artificial insemination law tied his hands in this case.

“I believe as a trial court I am not to plow new ground, but to apply precedent and the law,” McMillan said.

This is a judge you want trying your case.  McMillan, ever the stickler for those concepts social justice activists hate called “rules” and “law,” expressed sincere sympathy for Erica Witt when staying her divorce proceedings to her wife, Sabrina, pending a possible ruling from the Tennessee Court of Appeals.  Yes, the laws on the books in Tennessee are gender specific when it comes to custodial rights via donor insemination.  That’s because Tennessee wrote and enacted the law back in the 1970s, not anticipating same sex marriage and custodial issues being decided with two women or two men as the individuals tasked with raising a child.  McMillan refused to break his sworn duties as a judge, as uncomfortable as it might have been for him, and applied the law as it was written.

Of course, this rigorous adherence to the law meant it was time for the outrage mobs to break out their pitchforks and torches.

“This judge is keeping a mother from her child,” Susan Sommer, director of constitutional litigation at Lambda Legal, told VICE. “It strikes at the very heart of what marriage carries with it, which is respect and recognition,” not only for the couple’s bond but “for parenting and family.”

A director of constitutional litigation for a national LGBTQIA+ group calling the heart of marriage “respect and recognition…for parenting and family” accomplishes two goals with one pithy press statement.  First, she misstates the concept of marriage.  It’s a contract between two people to join as a family.  Anyone who’s actually been married will tell you the heart of marriage doesn’t contain a shred of respect or recognition, especially when it comes time for a fight over who’s cleaning the toilets and taking out the trash.  Parenting is a goal set when the married couple decides to take the monumental step of bringing up a child.  It’s something accomplished outside of marriage.

Second, she misstates Judge McMillan’s actual position on the case.  His decision to stay Sabrina and Erica Witt’s divorce proceedings until the custody question could be resolved by a court of appeals isn’t keeping a mother from her child.  It’s a way lower courts get direction on issues not yet resolved by precedent or statute.  By essentially pressing “pause” on the divorce proceedings, Judge McMillan is making sure whatever outcome takes place at the appellate level, he’s actually doing his job the way it’s intended.

The Witt case wasn’t one necessarily about putting the name of a mother on a birth certificate, as the VICE article misstates.  When Sabrina and Erica Witt’s marriage finally became recognized in state, Erica Witt never asked to have her name placed on her child’s birth certificate.  Nor did Erica Witt attempt to go through the necessary steps to have that name placed on the birth certificate.  She simply assumed since her marriage was now celebrated in Tennessee, her status as a parent would be celebrated in Tennessee as well.  There was no need to take action on her behalf until Sabrina decided to seek sole custody of their minor child in their divorce proceeding.

Erica Witt’s attorney argued the statute on custody regarding donor insemination was outdated and the language required a change at the judicial level.  Sabrina’s attorney argued the position it was the legislature’s job to change the statute, not the judge’s.  While Judge McMillan might’ve wanted desperately to intervene and do what was “right” in the eyes of activists, he took the toughest action of all: he applied the law.

When Erica Witt’s attorney pulled the Obergefell card, asking the court to recognize the custodial relationship between herself and her child, McMillan shocked the conscience of the SJW crowd and the VICE readership by announcing Obergefell was a “limited decision.”  He’s correct, as the opinion holds the Fourteenth Amendment requires all states to recognize and celebrate a marriage between two people, whether heterosexual or homosexual.  Any sweeping language beyond that comes down to what is considered “dicta,” or extra stuff a judge thought pertinent to the case.  That includes Justice Kennedy’s allusions to deciding individual marital benefits on a case by case basis in the courts.  This is the way the law operates. Not with a sweeping loveliest for all, but with blow by blow being decided when people don’t get along.

Blaming those damned Republicans for everything and their religious friends won’t really help change bullshit quotes like “What’s crucial to recognize is that family law is designed to protect children, not to privilege some kinds of adults over others.”  Family law revolves around the creation and dissolution of families.  Not necessarily the protection of children or working with horse shit claims of “privileging adults.”  Facts and the law don’t matter in a world where you’re right because your party and priorities don’t match with someone else, so it’s easy to act a blithering idiot and say things like the following:

 Now that same-sex marriage is the law of the land, and the family-values crowd is on the wrong side of the law, their effort to oppose LGBTQ equality is no longer a matter of protecting an idealized family configuration, but about prying apart the relationship between actual parents and children.

Welcome to the world of divorce law.  It’s not about your perceived homophobia, intolerance of those who don’t share your views, or the people who you think feel the wrong way and spout wrongthink.  Divorce and family law is about prying relationships apart, and that involves putting kids in the mix.  At the heart of the divorce debacle is often a child who wants to know why mommy and daddy (or in this case mommy and mommy) don’t love each other anymore.  Both parents will often use the child as a playing card in a gambit for more money or more property.  That’s the reality of family law.  The fact VICE uses it, and a child, as leverage to push an anti-conservative narrative just makes them all the more disgusting.

Banning Glenn: Silencing Law on Social Media (Update x2)

Glenn Reynolds wears many hats.  He’s a professor at the University of Tennessee School of Law.  He blogs at a site called “Instapundit.” He’s a columnist for USA Today.  As of this morning, it appears Glenn gets to add one more bullet point to his already impressive resume.  He’s banned from Twitter.

What justification does Twitter have for placing a law professor in the ranks of those once deemed internet trolls, “monsters,” and purveyors of “hate speech?”  Did he send his followers to harass a celebrity on the social media platform?  Did he make a direct threat to someone?  It was none of these, actually.  Glenn’s egregious sin was expressing an opinion on self-defense in regards to the violence occurring in Charlotte.

At 8:51 PM last night Glenn retweeted this tweet from WBTV News in Charlotte, North Carolina regarding the violent protests in the wake of another police shooting.  It encouraged those on Twitter to avoid I-277 as protesters were surrounding vehicles.  At least one news report from the news station’s website confirmed protesters were throwing rocks at vehicles on that section of the interstate.  Glenn’s response was simple.


That tweet was enough for someone at Twitter, most likely a member of their Trust and Safety Council, to throw the “suspend” lever on Glenn’s account.  A glance at Twitter’s Rules could justify Glenn’s ban from the site on the basis of either “Violent Threats (direct or indirect)” or “Hateful Conduct.”  The former prevents you from making threats of violence or promoting violence, the latter adds in “directly [attacking]” people based on their race, sexual orientation, nationality, and a whole host of other factors by which most choose to express their current victimhood.

On face value, though, Glenn did none of these things.  It appears as if he expressed his opinion on what those caught in the mobs of protesters should do if they found their car surrounded.  It may not be the most palatable opinion for some, but it’s not threatening anyone specifically or directly attacking them.  Glenn’s three word tweet apparently summarized his views on self-defense if someone found themselves caught in a situation like that on I-277.  Those three words were enough, though.  No more justification needed.  Throw the switch and ban him.

The ban, in less than twelve hours, has strangely amplified Glenn’s voice more than before.  #RunThemDown and #FreeInstapundit are both now trending on Twitter.  More people are talking about the violence in Charlotte and what they would do if needed to defend themselves and loved ones.   It’s almost as if a certain “Dangerous Faggot’s” remarks on how attempts to silence someone just makes that voice louder universally applies.

The downside to all this is Twitter’s image continues to worsen at a time when they need some positive uptick for their social media platform.  Banning anti-feminist Robert Stacy McCain almost immediately after Jack founded his “Trust and Safety Council” started serious whispers about the “Free Speech Wing of the Free Speech Party” only caring for ideas with which they agreed.  The ban of Milo Yiannopolous led credence to claims Twitter didn’t care for conservative voices.  Now with the ban of Glenn Reynolds, Twitter’s new image is they can and will ban whoever they like, whenever they like, for whatever words hurt someone’s feelings at any given moment.

And yes, there will be people who reiterate the numerous tropes and fallacies surrounding free speech.  They will also point out Twitter is a private company, free to censor and ban those they wish with absolute impunity.  These are the people Twitter will come for next.  As soon as the latest wrongthink echoes from their account in 140 characters or less, that person will find themselves wondering how it all happened.  Here’s a hint: it happened because you did nothing, you refused to raise your voice when others were silenced, and you were complicit with every aspect of the censorship of those voices you didn’t like and deletion of the nasty bad words that hurt your feelings.

Another scary aspect of this is Glenn’s status as a law professor and USA Today columnist.  A Twitter ban for Glenn signals his views on the law as less important than someone like Mary Anne Franks or Danielle Citron.  It chills the concepts of teaching the law as it stands, in a fashion that some might find uncomfortable, “triggering,” or lacking safety.  It also actively encourages stupidity, and promoting the cardinal sin of making people dumber when they encounter a legal professional.

The gig is up for Twitter, and they know it.  Now that we’re past justifying suspensions and bans on the basis of “promoting hate speech,” and Twitter is perfectly ready to censor academics with truly intelligent voices in their field, this realm of the information superhighway where people interact more on a daily basis with each other loses a bit more credibility.  If Glenn’s ideas were horrid, let them be exposed and ridiculed as such.  They weren’t, though.  This ban wasn’t even close to justifiable.  It’s silencing a much needed voice.

If you’re interested in learning more about what “free speech” truly looks like in America today, check out “Silenced: Our War On Free Speech.

UPDATE: Glenn’s account was reinstated after he deleted the offensive tweet pictured above.  He’s also posted his view of the situation on the Instapundit blog, which deserves a full read.  I quote one portion of it here to show my initial analysis was a little more on point than I expected.

I’ve always been a supporter of free speech and peaceful protest. I fully support people protesting police actions, and I’ve been writing in support of greater accountability for police for years.

But riots aren’t peaceful protest. And blocking interstates and trapping people in their cars is not peaceful protest — it’s threatening and dangerous, especially against the background of people rioting, cops being injured, civilian-on-civilian shootings, and so on. I wouldn’t actually aim for people blocking the road, but I wouldn’t stop because I’d fear for my safety, as I think any reasonable person would.

“Run them down” perhaps didn’t capture this fully, but it’s Twitter, where character limits stand in the way of nuance.

UPDATE x2: Apparently even Glenn’s nuances aren’t enough for the University of Tennessee School of Law. Now, with the full support of Chancellor Jimmy Cheek, there’s an “investigation” into Glenn’s nasty, hurtful words.

“I am aware of the remarks made last night on Twitter by Professor Glenn Reynolds and of the serious and legitimate concerns expressed by members of the UT Law family and the University of Tennessee community, as well as concerned citizens across the country. Professor Reynolds’s comments do not reflect my views and opinions, nor do they reflect the values of the college and university.

University administrators, college faculty, and I are investigating this matter.

The university is committed to academic freedom, freedom of speech, and diverse viewpoints, all of which are important for an institution of higher education and the free exchange of ideas. My colleagues and I in the university’s leadership support peaceful civil disobedience and all forms of free speech, but we do not support violence or language that encourages violence.

Professor Reynolds has built a significant platform to discuss his viewpoints, but his remarks on Twitter are an irresponsible use of his platform. (emphasis added)

Did I Cause A Social Media Scare?

A text message Saturday morning had me curious.  Could I potentially start a scare using influence, suggestion, and persuasion tactics on social media?  I decided to conduct an experiment, using Facebook as the basis and persuasion tactics I’ve learned over time to see if I could convince someone a gas shortage existed in Tennessee.

For those who aren’t aware, a spill in a pipeline around Alabama caused the potential for a gas shortage in the Volunteer State.  According to local news reports, the pipeline was the primary means of petroleum delivery for several gas station chains, so “stocking up” was crucial.  Because the story to sell was “gas shortage,” one local television station had the requisite “eye-witness” who couldn’t get gas at a local station not far from Compound West.

I began my experiment by posting the following to Facebook:

There is a gas shortage in Tennessee.
You need to go out right now and buy gas before you can’t get any.
You don’t need to question this. Don’t bother actually checking a “news” source. Just believe me.
I saw it on Facebook, anyway. That makes it newsworthy and true.

I also predicted that at least one person would get mad at me for posting said statement on Facebook.  That’s because over time on that platform I’ve learned its users have a love/hate relationship with facts and truth.  People are incredibly ready to believe a clickbait article about Iceland paying men $5,000 to move there so they will marry more women and a population increase occurs, but if you post a stupid picture from a page like “Shares From Your Aunt” they will get angry because it’s nonsensical.

And then there’s the stuff that makes lawyers’ brains instinctively hurt.  The posts about Facebook gaining a license to all of your work and how you need to paste an official notice to your wall per a bullshit UCC article.  So truth is a pliable subject on Zuckerberg’s social platform.  Let’s see where the experiment takes us.

Within minutes, one user shared the post twice without any question of the source.

Ten people “liked” the post.  Three people reacted with a laughing icon.  This would tend to indicate those who saw it recognized the post as a joke.  Some didn’t though, and those comments became the interesting aspect of this experiment.

One user commented the following:

WATE-6 reports this, and parts of Georgia are also affected.

Yet another replied on the same comment thread:

And it’s all caused by Colonial Pipeline burst just south of Birmingham, AL. We are under a state of emergency for a gas shortage. So is GA.

These statements added to the original influence of my post through an appeal to authority and something referred to as “social proof.”  Both add to what is called “confirmation bias.”  Smarter folk than I explain these principles in other areas, and they aren’t really mine to teach.  I will take the time to expose each statement as it appears.

Our next commenter decided to bless us with anecdotal evidence to support my claim.  This is an interesting comment, because it had absolutely nothing to do with Tennessee or a gas shortage.

While at a stoplight in SC yesterday, I saw an electronic gas price sign change the price of all three grades by 10 cents per gallon. The price did’t (sic) go down.

The comment was nothing short of lunacy in action, but it added to the subjective belief that there was some sort of panic over losing gas supply in Tennessee that people in Nashville were lining up at the pumps in double-digit lines to fuel their cars.  Someone asked if people were that “dumb.”  My response was simple:

“No.  They’re just irrational and acting out of fear.”

So did I personally cause a panic?  The answer is an unqualified “no.”  However, I wasn’t the only person talking about the issue on social media.  Local news outlets blamed the long lines at the pump for “chatter on social media.”  One suggestion can cause a group response.  When that group takes a source as credible, and it plays to a strong emotion, panics occur.

Belief is subjective.  If you know where a party’s beliefs lie, they can be changed and plied into a new form.


Playing With Beliefs: An Exercise in Devilry

Mark Bennett, the Texas Tornado, has a great series called “Trial Theory” going on at his blog “Defending People.”  His first post concludes with a thought I want to address in a different light.

Most jurors form a belief about the right result in the case by the end of opening statement; this belief will not be changed absent blockbuster evidence that they have not been primed to expect.

Beliefs are interesting to me in the world of psychological mind reading, mentalism, and suggestion.  It’s my job as a mentalist and persuader to take a subject’s belief, frame it in a different light, and then play with it to my liking.  By the time I’m done playing with a subject’s belief structure, they might have changed their minds.  They might not. But under a theory of suggestion and belief open to the idea that humans aren’t rigidly locked into a certain worldview, one that shows under the correct conditions beliefs can be shaped, twisted, bent, and stretched, one can persuade a person to open up and provide you with more information than ever before.

I’ve not been partial to cold readings in the past.  After a bit of reading into the art form, I’m warming up to the idea.  I’d go as far as to say a study of it is an excellent idea for anyone whose livelihood depends on persuasion, or making a sale to someone.  The best “psychics” understand the art isn’t about reading into someone’s lives and looking for a good hit or miss, then fixing your work and moving forward.  It’s about developing an empathy with the person who you’re reading so they provide you with all the information you want or need.

Herb Dewey, the “King of the Cold Readers,” didn’t spend time making statements and carefully checking vagaries for a person whom he read.  He’d ask a subject for their full name, place, and date of birth.  Dewey would then shut his eyes and for twenty minutes tell his subject things about them no one could possibly know.  He did this because of an understanding how open people are to suggestion, and knowing the skeptic would be watching him for a “read” of hits or misses.  After that twenty minute time frame was up, he’d usually open his eyes and say “Oh, I thought I was boring you to death and you’d left.  I didn’t know you were still here.”  The last ten minutes of a half hour session with Dewey would usually be him answering questions the subject wanted based on the previous twenty minutes’ divination.  Not surprisingly, most of the questions would contain extra information Dewey never uncovered!

Because I apply the principles I learn in my “off hours” to my law practice, a study of cold reading now leads me to take Mark’s above statement and address it with a “Yes, and” approach I think he’d appreciate.  If I were to take that statement it would probably read as follows:

Most jurors form a belief about the right result in the case by the end of opening statement; and this belief will not be changed absent blockbuster evidence that they have not been primed to expect or the attorney’s ability to reframe the juror’s belief.

There are times when working as a defense lawyer I’m tasked to work with someone a jury may not particularly care for.  When I get a sense the trier of fact isn’t keen on my client or the outcome I desire, a certain onus then shifts on me to take their belief and test it, through evidence or developing a sense of empathy.  If I can get an “in” with a “hit,” be it through a rhetorical device, piece of evidence, timely objection, or otherwise, I have to exploit this to see if I can get them to give me more information.

Subjects don’t have to express their beliefs for me to shape them.  A slight smile, a half frown, a look of contempt all give me enough information to pursue a certain avenue that will work to provide the best outcome possible for my client.  In other words, if a juror has a certain “belief” about the “right result” of a case, they also have a “disbelief” about that result.  I want to take that “disbelief” if it’s in my client’s favor, toy with it and then see if I can suspend it.  Once the suspension of disbelief about the “right result” kicks in, it’s time to manipulate that subject into what is hopefully the desired outcome for a client.

Mentalist Peter Turner studies astrological signs heavily.  It’s not because he places a belief in them, it’s because he knows others believe fixed patterns of stars rotating in the heavens dictates the course of their lives.  Once he can get an “in” by plucking the star sign from a person’s head Turner uses that to “read” the person and get information “no one could possibly know” about them.  What that person doesn’t know is Turner is they’re providing him with every bit of unseen information he needs as he speaks.

How often do you look for the commonalities in life?  When you’re attempting to gain empathy with someone in any setting, what information are you leaving on the table?  As you’re working to establish credibility with your counterpart in a negotiation, what are you refusing to see?  That’s why cold reading is so important, and why it’s an important weapon for litigators, mediators, and anyone interested in effective communication.  Empathy can stretch even the most rigidly held belief.

The best time to establish that empathy?  Jury selection.
And if you’re interested in learning a bit more about that from a devil’s perspective, you should definitely find a way to attend the TCDLA’s voir dire seminar in Dallas this coming Thursday and Friday.

Was Leslie Jones Victim of a Hate Crime?

Leslie Jones, the SNL comedienne and star of the “Ghostbusters” reboot, recently had her website hacked and iCloud account compromised, releasing “intimate” photos the actress stored in that space.  Personal data was exposed for public view and images of Harambe the gorilla were plastered across the website.  The FBI and Homeland Security are investigating the hack.  Was the hack a “hate crime?”  Mark Shrayber, a former writer for Jezebel and current staffer of the culture site Uproxx, see the issue as “plain and simple.”

Make no mistake: What happened to Jones wasn’t “trolling.” It was a hate crime. Most importantly, what happened to Jones is a terrifying reminder that in the age of the internet, there’s precious little protection for the people most vulnerable to this type of attack, and plenty of people who’ll happily applaud it while spouting clichés about why people should never expect a right to privacy.

Issues of privacy aside, let’s delve into the issue of whether the offense in question is a “hate crime.” Hacking would be considered hypothetically a federal crime because the use of the Internet to facilitate the breach of Jones’ website, so it would involve a “channel…of interstate or foreign commerce.”  That means we plug in the Federal Hate Crime statute, 18 U.S.C. § 249, to determine if the data breach was a hate crime.  Before we go into the actual statute, let’s discuss what constitutes a “hate crime.”

Hate crimes are actually a means for prosecutors to enhance the sentence of an offender because the crime in question affects a certain group of people with immutable characteristics like race, religion, or sexual orientation.  The “enhancement” applies because our society has realized crimes committed against people with these characteristics don’t just suffer the crime alone.  When the crime is committed against one of the “protected” groups under hate crime statutes, it has a disparate impact on the community as a whole.  The harm committed isn’t just suffered by the individual, it directly affects the group of people as a whole against the group or groups to which the person belongs.

Take, for example, the Pulse shooting in Florida.  Omar Mateen’s decision to shoot up a gay nightclub in Florida would be considered a hate crime, because it was a crime that had a disparate impact on the LGBTQ community as a whole.  The use of firearms to maim or kill individuals in the triple digits solely because they love a member of the same sex counts as a hate crime and would be prosecuted as such if Mateen were still alive, since the remaining members of the community and their family members would be on edge following that offense.  An offense of that magnitude would be worthy of a sentencing enhancement under Federal law.

Now that we’ve framed the issue in that context, let’s look at whether the Federal statute considers the hack of Leslie Jones’ personal data, “intimate photos,” and website would be a hate crime.  Section (a)(1) covers race.

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

The “actual or perceived race” is there.  Leslie Jones is a black woman, but she didn’t suffer “bodily injury” through “the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device.”  That’s just part of the statute, though, (a)(2) covers gender, so we might have something present that would cover Shrayber’s claims that make the hack a hate crime.

Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—

Damn.  There’s that whole “willfully” or “attempts to cause bodily injury” “through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device” again. Looks like from a legal standpoint, the argument of the hack constituting a “hate crime” falls apart.  That’s not good enough for Shrayber, or the experts he cites, who liken the attack as a means of “dehumanizing” Jones because of her status as a successful Hollywood actress of color.  According to San Francisco based therapist Tiffany McClain, the attack was one based out of deep-seated racism.

McLain says the imagery used to assault Jones is a major tell. “The comparison to animals andbeasts,”McLain explains, “was used to justify the practice of slavery. It was used during the civil rights era to explain why people of color should be denied equality.” And it’s being used now to dehumanize Jones, allowing her attackers to not see her as a human being deserving of respect from others.

“If it’s not because she’s black, what is it about? We need to invite that conversation,” McLain says… It may be uncomfortable to consider why Jones is the only star of Ghostbusters to have her physical safety threatened (with Jones’ identifying information published online, it’s not a leap to assume that she must feel unsafe both in public and in her own home). It’s also imperative that we do so in order to make sure that we understand when an attack is based in deep-seated racism.

The cyber attack on Leslie Jones may have been based in “deep-seated racism.”  And it’s understandable one could make a leap that Jones, a public figure with personal information posted for the world to see, could feel unsafe in her home or in public.  It wouldn’t be unreasonable to think Jones, the subject of relentless hate-fueled tweets, might think someone would act on what would normally be considered “trolling” after gaining access to her real-world location.  And whoever hacked Jones’ website could very well be motivated by hate.  Regardless, the cyber-attack itself isn’t a hate crime, no matter how much one might think otherwise.  She suffered no bodily injury through any of the instruments listed in the statute, even though she is a person of color and a woman.  That won’t be enough for folks like Shrayber and McClain, who would prefer their feelings to the actual application of the law.

Many who delve into the law are outraged when they find their experience and feelings doesn’t correlate to actual application of the law.  They feel marginalized, hurt, or oppressed.  It’s at those times we must remember the law is narrowly tailored to fit certain specific circumstances, especially when it comes to protecting the rights of those charged with a crime.  No matter how despicable a crime may be, or how much people hate the defendants, the law is tailored ostensibly to make the burden of proving “hate crime” status to enhance a sentence  harder on the government.  Our feelings don’t make it any easier, and don’t need to come into the equation.  Especially when the target of the public’s hate is you, and you’re standing before a judge answering the question “How do you plead?”

Birdcloud and Artist Politics

Birdcloud is a satirical country music band that plays music for the purpose of riling up crowds.  According to the reaction they’re getting from at least one hater, they’re pretty good at their job.  Knoxville artist Daniel Blaine McBride is conducting a one-man smear campaign against the duo in an attempt to have bookers pull them from dates, according to a Nashville Scene article.

Apparently McBride took offense to the Birdcloud song “Black Guys,” which you can listen to below if you are so inclined.  It’s not my bag, but it’s kind of funny.

I can see where people would enjoy the humor, and it’s apparently something that gives them a strong enough fan base to where they can pull $500 in a night at a merchandise table at the Pilot Light, which is a tough place to draw money in the Scruffy City.  If you’re an independent artist, that’s a heck of a night in a very small venue, and deserves congratulations.  McBride didn’t just think the song bad, or in bad taste. He used it as an excuse to try and have promoters shun Birdcloud from upcoming tour dates and venues.  Here’s an example of the Facebook posts he’s slung at promoters.


The problem with this is it’s not just a false statement, it could constitute grounds for false light invasion of privacy should Birdcloud choose to pursue further action in the legal sphere.  McBride’s actions aren’t anything new to the special snowflake crowd.  It’s easy enough to denounce that which you find offensive racist, sexist, homophobic, or whatever denigratory term you wish to use.  When you make statements that cause harm to a person’s image, and that person suffers from it in a monetary capacity, that can lead to legal action.  Fortunately, it looks like that won’t be necessary for Birdcloud, as the promoters McBride continues to message seem to get Birdcloud’s antics more than McBride’s irritation.


It looks like McBride went on a copy and paste spree with his antics, as the above is a screen shot of an exchange between McBride and a venue in Chattanooga, Tennessee called “JJ’s Bohemia.”  Apparently JJ’s caught onto the act and didn’t really care too much for what he had to say.  Just in case you can’t read their response, I repost it in full below:

Daniel, you must have mistaken us for someone who gives a shit about the opinions of a self appointed dishonest social justice warrior.  Birdcloud has been friends of ours for over 5 years and will continue to perform whenever the fuck they want at JJ’s.

Bravo to JJ’s for not falling prey to McBride’s attempts at shaming Birdcloud out of business.  As an aside, this just smacks of sheer jealousy.  McBride’s a musician as well, and he’s attempting to have another performing group lose out on business just because he doesn’t like their work.  That’s fine, but what happens when people decide they don’t like McBride’s music for whatever reason and attempt to have him shamed into silence and driven from venues?  Why not spend time creating music you care about,  building up your own work, marketing and playing your own music, and enjoying your craft instead of trying to shut others down?

As a bizarre oddity to all this, it now appears McBride’s attempts at shutting Birdcloud down only served to amplify the duo’s work.  It’s odd how that happens when someone tries to silence the voice of another with whom they disagree.  It’s also managed to tarnish McBride’s own personal work, as people won’t associate him with the quality of his music following the debacle.  They’ll remember his attempts at taking business away from another band in an attempt to look virtuous.  Something tells me that doesn’t bode well for him.

The arts (writing, music, painting, acting, etc.) are areas open for critique.  People are allowed their opinions on each. Daniel McBride is free to call Birdcloud racist as he chooses, and boycott them at his will.  Sinking to the lows of spreading false statements about their shows and their work in an attempt to drive other musicians out of business is an entirely different level of sleazy.  It’s time to cut the garbage and let Birdcloud be as foul as they please.

Shuttle Diplomacy: Garbage Mediation

Ask someone who’s been through a mediation what the process was like and they’ll probably describe it as follows:

“It was a long day.  We started off in the same room, the mediator said some stuff, our lawyers said some stuff, then we went into separate rooms.  The mediator came in and spoke with me, then said he’d go speak to my husband/wife. Then I waited until the mediator came back in with an offer.  This went on for several hours until we finally got an agreement in writing that I signed.  We left at separate times because we didn’t want to see each other.”

This is called “shuttle diplomacy,” and it is not mediation.  It is the bane of every sane mediator’s existence, and a practice that poisons what is left of mediation as a whole.  It’s lazy, it lacks the art of attention management real mediation requires, and leaves both sides with a bad taste in their mouths with regards to the process as a whole.  Most people who go through mediation training know this, and yet it still continues to exist as a widely practiced form of alternative dispute resolution.  This is the default to which many mediators gravitate because attorneys demand it, and one of the worst mistakes a mediator can make is marketing and tailoring a mediation practice to family law attorneys.

Shuttle diplomacy is lazy because you don’t have to work actively with conflict in one room.  Many mediators justify the practice because the “alternative” in their heads is having both parties continually focused on the anger they feel towards the other side, instead of on the issues requiring resolution.  These mediators more than likely don’t use any sort of attention management device like a whiteboard or flip chart to keep attention drawn to the issues.  It’s also safe to guess they’ve not learned how to control parties in high-conflict situations.  Finally, it’s a safe bet the mediator might be prone to capitulation when it comes to attorney demands.  All of these are problematic when it comes to ensuring a positive resolution of your dispute.

Attention management devices are key because they keep people from thinking ill of the other party and focused on the issues requiring a resolution.  No one likes staring across the table at a person that’s done them harm, physically or emotionally.  The easiest way to fix this is to have parties simply looking at something other than the other aggrieved party who they can’t stand for whatever reason, like a portable white board or flip chart.  Keeping the mediator in a position where both parties have their attention directed on the mediator and concentrated on the issues in play for resolution is a crucial way to command the room and defuse any sort of tension that might be present among the parties.

When you were in school, attention focused on the teacher, did you spend your time thinking about someone who you had issues with, or were you focused on the teacher at the front of the room and the blackboard on which he or she wrote?  If you were interested in learning the material you paid attention to the teacher and not to the guy you wanted to fight after school ended for the day.  The same holds true for mediations.  If you want to resolve your dispute with another person and “get it done,” you’re more likely to focus on the issues at hand requiring a settlement than how much you hate the other person if your attention is directed away from looking at that party.  If the mediation is taking place at the mediator’s office, some of the more high-end mediators will even use large computer monitors and case management software.  The technology adds a certain “wow” factor parties don’t normally expect and defuses tensions even more than just the white board or flip chart.

De-escalation of high conflict scenarios requires a high emotional intelligence level, an ability to read people, learn when tensions are ready to engage the irrational centers of the brain, and how to deflect or defuse those moments.  These are all art forms not readily taught in the short amount of training required to become a mediator in most states.  Becoming an exceptional mediator requires active engagement in these areas and continued commitment to learning more high-functioning levels of your craft.

If you start in “caucus,” or in separate rooms with your counsel, from the beginning then there’s a good chance your mediator is capitulating to attorney demands that parties stay in separate rooms.  If you start in the same room and caucus sessions break out immediately after opening statements, it’s a good sign the lawyers have more control over the mediation session than the mediator, or you.  This is a problem.  Allowing the mediation to break into caucus and remain there gives the lawyers more control of the mediation than you have.  If you’re a party involved in a mediation, that isn’t in your best interest.  The lawyers don’t have an issue with getting more power in the sessions, because it gives them more control and it’s another means of them justifying outlandish demands in the interest of zealous representation.

It’s not about the lawyer, though.  It’s your case and your mediation session.  You as the party can and should be the person in charge, and remain the person with the most at stake.  The best thing is for you to remain at the table with the other party in conflict, work with your mediator and the attorneys in the room, and head towards closure of your dispute.

About a year ago attorneys at a Continuing Legal Education seminar on “next level” mediation techniques admitted keeping both parties at the table was “harder,” but acknowledged the agreements reached tended to maintain a level of stability “shuttle diplomacy” agreements didn’t have.  That’s because mediation, practiced in its purest form, is extremely hard.  It’s not something you can achieve at a high level of competence with just basic training or even cursory experience.  When you do, however, and you remain committed to avoiding the “shuttle diplomacy” approach, you gain lasting results.

Shuttle diplomacy is easy, but practicing it is another reason Mediation is Dead.