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Tuesday, June 29, 2010

A 1972 Corvette and the Whole Camel


In my last post I reported on one of Dad's trials, and it occurred to me that it was time to write about one of my own. I began law teaching in 1970 (see "How I Accidentally Became a Law Professor" Jan. 20th), but then, at age 26 (I was constantly being mistaken for a student) I’d only been a lawyer a little over one year, and with almost no legal experience (and no trial work at all) I was embarrassed by how much of what I was saying was merely academic. Thus I began (with the law school's permission) to take on cases in order to gain experience. I selected the sort of consumer problems most attorneys wouldn't touch: health spas, swamp land in Florida, fraud, and, of course, lemon cars. What follows is a description of my very favorite lemon car case.

I gave a bar review lecture on the law of Sales at Indiana University in Bloomington in the summer of 1972 (see “The Summer Bar Review Tours” post of June 15th). One of the recently-graduated students in attendance was Robert Zoss, and he and his wife Nina had been having problems with the new Corvette they’d purchased three months before. There were all sorts of things going wrong with this beautiful sports car, and the dealership in Bloomington from which they had purchased it couldn’t seem to fix anything so that it would stay fixed. In my bar review lecture I discussed the statutory doctrine of “revocation of acceptance,” which is used to get your money back when purchased goods have a substantial defect. Mr. Zoss promptly went home and told his wife that they were going down to the dealership the very next day and revoke their acceptance of the Corvette! They did that, handing over a written statement to that effect, but when the dealership owner saw it, he laughed at them. “We signed a contract, and you can’t get out of it on a whim,” seemed to be his attitude. The Zosses immediately contacted me in Indianapolis, where I was teaching, and asked me to represent them. After hearing the facts, I agreed, and we filed suit.

I’ve been telling my law students for decades that if they’re representing a client in a case where the law is clearly on the client’s side, but the equities lean heavily in the opposite direction, “You’re in trouble.” In this case, happily, I had both. Many people think that if it’s just your word against mine, no lawsuit is possible. That’s simply wrong. When there’s conflicting oral testimony we leave it up to the fact-finder (the jury, or the judge if no jury is empanelled) to decide who’s telling the truth and who’s not. This is a high hurdle for car dealers and insurance companies in legal disputes with consumers. In a lemon car case, for example, frequently the consumer plaintiff takes the witness stand and lists all the many wonderful promises the dealer’s salespeople made to him/her during negotiations, none of which, alas, proved to be true. The car dealer then takes the stand and is asked what was said to the plaintiff and the answer is usually “nothing except what’s in the written contract.” At the end of the trial the jury is asked which party they believe. Most jurors have been waiting all their life for this moment—they don’t even have to leave the jury box—they’re ready now!

The legal difficulty with the Zoss case was that the Corvette (similar to the one in the photo, but theirs had a red interior) didn’t have one big problem, but instead myriad little ones: the car alarm would go inappropriately, there was a red paint slash across the black dashboard which the dealership was never able to remove, the windshield wipers worked in any and all conditions except when it rained (you could spray the windshield with a hose and the wipers would happily flop back and forth, but they were completely defeated by the simplest shower), huge amounts of oil were consumed, the luggage rack that the Zosses requested had one leg that kept popping free no matter how often fixed, etc. There was a list of 27 such difficulties, leading to the car being in the shop for eleven weeks of the three months since its sale. The “revocation of acceptance” statute allows return of money only if there is a “substantial impairment” to the buyers, and none of these things, taken alone, met that standard. So I came up with two theories as to “substantial impairment”: (1) these defects had a cumulative effect, and eventually led to the whole camel sprawling splay-legged as the straws piled on, and (2) the constant failure of the dealership to repair these problems was itself a “substantial impairment.”

Prepping the Zosses as witnesses before the trial went smoothly. But Nina Zoss, a schoolteacher, was much worried about having to take the stand (unlike her lawyer-to-be husband). “I’ve never been a witness,” she told me. “What if I get upset and cry?” Since in this situation that’s every lawyer’s dream, I assured her that crying was forgivable. “But,” she added, “maybe instead I’ll get mad.” That too I approved. Genuine passion on the witness stand is almost never bad.

And that’s what happened. I put Robert Zoss on the witness stand at 9 a.m. and he detailed the problems with the car and was cross-examined until 1 p.m. Then Nina took the stand, and defense counsel kept badgering her with “What was so wrong with this car that you couldn’t drive it?” repeated in various ways until she suddenly exploded. “I don’t know if I can say this in a court of law,” she declared hotly, “but it was just a LEMON CAR!!! And things were always going wrong, and our friends were teasing us because here we went and bought this fancy sports car and then I had to shop for groceries on a bicycle or beg for rides to school or hitchhike, and we became depressed and even fought about it!” Counsel stepped back, wary of her temper and torrent of words, but he bravely tried one more time. “But what kept you from driving it?” At this glorious moment Nina tied both of our theories together beautifully: “It was always in the shop,” she replied.

I was delighted.

The dealership put on a few witnesses but there wasn’t much they could say. Their big witness was a G.M. expert, who had examined the car carefully and found nothing wrong with it. Though he testified at length, I asked him only one question on cross-examination. “Is it true you didn’t see the car until two weeks after my clients had returned it to the dealership?” “Yes.” “No further questions.”

The case was tried before the Honorable Douglas R. Bridges (without a jury), and he quickly handed down a written opinion adopting both of our theories: “substantial impairment” can arise either from cumulative defects and/or failure to repair. His well-written opinion was published, and, for you lawyers, is cited as Zoss v. Royal Chevrolet, Inc., 11 U.C.C. Rep. Serv. 527 (Ind. Super. 1972). The good judge gave the Zosses back all of their money, with interest, plus additional damages for sales tax, registration fees, interest on their credit union car loan, insurance, two speakers for the Corvette, lost pay, and $225.00 for unexplained “consequential damages” (mental anguish, perhaps?). Judge Bridges’ opinion with its “cumulative effect” test was subsequently adopted by various Supreme Courts around the country (Wisconsin, Mississippi, and others) and is now part of the large body of case law explaining the meaning of the “revocation of acceptance” statute.

By the time I left Indiana to move to Ohio State University, I’d accumulated plenty of “war stories” and no longer felt like a fraud. I’d been the sole attorney on thirty or more cases, about six of which went to trial and judgment. In one case I practiced with my wife Charleyne (another lemon car lawsuit, which we lost—very sad facts in that disaster), and after I came to Ohio, Dad and I tried a case in southern Indiana together (one centered on a lemon motorbike). But enough for now. Those are stories for later.

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“A Guide to the Best of My Blog,” April 29, 2013

Saturday, June 26, 2010

Bob Whaley and the Best Evidence Rule

Prosecutors are quite jealous about their won/loss records, and that makes them leery of trying certain cases with dubious facts, sympathetic defendants, or talented defense lawyers. When my father, Robert Whaley, was a prosecutor for Dallas County, Texas, in the 1970s, he was afraid of nothing, but even he was dubious about what I shall call the “Smith” case, which none of the other prosecutors wanted to touch since all these elements combined to shout the words “Not Guilty” as the likely outcome. Ms. Smith was charged with Driving While Intoxicated (“D.W.I”) and Charles Tessmer was her defense attorney.

Charles Tessmer (see photo) is known today as one of the greatest criminal defense attorneys in the history of the country. He tried over 1,000 cases, represented more than 175 people facing death but never had one executed, and has also done a great deal of appellate work, including three cases before the United States Supreme Court, winning two. His resume includes being past President of the National Association of Criminal Defense Lawyers, author, producer, and director of the film “The Trial of Lee Harvey Oswald” (Tessmer once declined to represent Jack Ruby, Oswald’s assassin), and induction into the Texas Criminal Defense Lawyers Hall of Fame in 1998.

He often drove the Dallas D.A.’s Office nuts with his brilliant defense work in D.W.I. cases. Particularly when the defendant’s level of intoxication was only slightly over the legal limit would Tessmer become a legal wizard at talking the jury into letting his client go free. “Ever have a drink yourself,” he’d rhetorically ask the jury, “and then, knowing it was just one drink, feel it was okay for you to drive?” The Smith case had Tessmer’s favorite fact: a woman who was barely legally drunk, just a smidgeon over the limit.

Around the same time, Dad was the prosecutor of a different D.W.I. case that Tessmer was defending, but Dad wasn’t worried about this one. Tessmer’s client had been very drunk and had nearly caused a serious accident. To prove how drunk the man was, Dad put a breathalyzer expert on the witness stand and asked introductory questions designed to establish the witness’s qualifications. “Did you graduate from a school where you learned how to operate the breathalyzer?” Before the witness could answer, Tessmer called out, “Objection!” Dad turned to him with a smile. “This will be interesting,” he commented to Tessmer. “What could possibly be objectionable about that question?” Tessmer’s answer: “The Best Evidence Rule—he can’t testify to what his diploma says!” The judge didn’t hesitate. “Sustained,” he ruled. “Your Honor!” Dad protested.

A little bit of the law of evidence here. The Best Evidence rule is simple. It states that you can’t testify to what is written on a piece paper. The paper itself is the “best evidence” of what it says, so it should be marked as an exhibit and introduced into the proceedings that way. The rule is designed to apply to letters and documents, but certainly has nothing to do with graduation from school, and no one who understands the rule would think so. But, as I tell my law students (learning this from my own bitter experiences in the courtroom), no matter how wrong, silly, or stupid, the law is what the trial court judge thinks it is, and if you can’t afford to appeal, you have to work with it.

Outraged, Dad asked the judge for a ten minute recess so he could run to the library and grab a few references to show the judge he was wrong, but His Honor simply remarked, “Move along, Mr. Whaley.”

How Dad got the breathalyzer test evidence finally admitted I don’t remember being told, but there are various ways of doing that (including, as a last resort, producing the diploma). Finally learning how very drunk the man had been, the jury duly convicted, and that prosecution was over. But it got Dad to thinking about the Smith case. Once again Tessmer would be the defense counsel, and, by coincidence, it was to be tried before the learning-impaired judge just mentioned. Pondering, Dad went back to the office, picked up the file, and suddenly told everyone, “I’m going to take this one.” They looked at him suspiciously. What was Whaley up to now?

Comes the date of the trial. Tessmer is there with his client, the woman whose alcohol level had been minimal, and at this moment Dad is concluding the case for the prosecution. The jury had already heard testimony from the police that Tessmer’s client had been weaving all over the road before being pulled over, and that she smelled of alcohol on her breath while slurring her words. Dad put the breathalyzer expert on the witness stand, and asked him if he’d graduated from a school that had taught him how to use the machine.

“My heart was beating hard,” Dad later told me. “I was worried that Charlie wouldn’t object, and if that happened, well . . . .” But Tessmer did object, almost as if bored, citing the best evidence rule. “Sustained,” the judge immediately ruled. Dad paused, very pleased. “No further questions,” Dad announced. “The prosecution rests.” He sat down as Tessmer leaped to his feet. “WHAT!” he protested. Dad smiled. Due to the judge’s ruling, the evidence demonstrating that the defendant was only slightly drunk had not gotten into the record. Tessmer stood there, stung, thinking hard. After a bit, he concluded there was nothing he could do. He couldn’t call the defendant to testify she was only a little bit drunk—who would believe that? Nor could he call the breathalyzer expert back to the stand and lamely try to get in the evidence he’d just objected to (with Dad, the Best Evidence Rule now his friend, ready to pounce) . Finally, Tessmer could only manage, “The defense rests.”

When some of you reading this blog (see “Bob Whaley, Boy Lawyer” March 28) asked more examples about my father not playing by the usual rules in the courtroom, this story came to mind. Taking advantage of the other side’s deliberate misuse of the Best Evidence Rule led a jury to convict a woman Charles Tessmer had undoubtedly thought would be walking out of the courtroom with him at the end of the day.

It would be my guess that he never again mentioned the Best Evidence rule in a court of law.
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Related Posts:
“My Competitive Parents,” January 20, 2010
"Goodbye to St. Paddy's Day," March 2, 2010
“Bob Whaley, Boy Lawyer,” March 28, 2010
"My Mother's Sense of Humor," April 4, 2010
“The Sayings of Robert Whaley,” May 13, 2010
“Bob and Kink Get Married,” June 2, 2010
“Dad and the Cop Killer,” July 19, 2010
“No Pennies In My Pocket,” July 30, 2010
“Doug, Please Get My Clubs From the Trunk,” August 20, 2010
“The Death of Robert Whaley,” September 7, 2010
"My Missing Grandmother," December 26, 2010
"Bob Whaley Trapped in Panama," January 21, 2011
"The Death of My Mother," March 31, 2011
"Life's Little (But Important) Rules," April 23, 2010
“A Guide to the Best of My Blog,” April 29, 2013

Tuesday, June 22, 2010

Imaginary Friend


In a prior post [“Frightening the Horses” April 7] I described how I wrote and damned near published my first novel back in the early 90’s. After that sad failure, I put down my non-legal pen for over a decade, but as I neared retirement in 2004 I began to plot out a new novel. It was to be called “Imaginary Friend.”

The genesis of the novel was the growing concern I had about how atheists are treated in American society. In a casual conversation it is almost considered rude to mention that you’re an atheist (while those around you have no such hesitation about bringing up God, or Jesus, or “blessing you” at any and all moments). In a 2003 Gallop poll 52% of those surveyed said they had an unfavorable or mostly unfavorable attitude about atheists; in another poll large numbers of people said that they would vote for a black, a Jew, a woman, or even a homosexual for president, but only 39% would pull the lever in favor of an openly atheist candidate. Discrimination against atheists, while not legal in employment or housing (freedom of religion), is socially widespread.

Ever the teacher, I decided to use a novel as a way of explaining how atheists see the world, and demonstrate why they’re not the demons so many people believe. In 1988 when I first went looking for an agent, I had no problem finding one (30 wanted to read the manuscript, and five offered to represent me), but due to the bad economy that has changed. Publishers aren’t accepting many new authors (indeed, they’re mostly letting go old ones); agents get 100 submissions a week from aspiring authors. I couldn’t even find an agent willing to read the ms. (receiving almost always form rejection letters). It would be one thing to be turned down because of the quality of the work, but another entirely never to be given a chance to show its worth. But, happily, self-publishing has undergone a great change in the 21st century. I went with Amazon.com, which charges the author nothing at all to publish a new book, but then takes a slice of any sales. I was very pleased with how professional the large paperback Amazon produced looked. The publication attracted the attention of a New York City film producer, who purchased the movie rights, but it now appears his plans have fallen through (sigh---I had visions of me stepping from a limosine at the premier).

My novel is an atheist thriller (new genre). Franklin Whitestone, a Columbus lawyer, becomes a hero in a terrorist attack, and then gets on a Larry King-like show, where he stupidly admits to being an atheist, and (having had a drink ahead of time for courage) says that believing in God is like believing in an imaginary friend. Well, that does it. He loses his girlfriend, his job, and he and his family are soon on the run, fighting for survival. Here are the only three reviews published on Amazon:

Devil in the Details, September 30, 2008
By Tim Brough "author and music buff" (Springfield, PA United States)

“Imagine if: After the horrors of 9/11, a man who bravely helped rescue some 50 odd survivors in a highly visual fashion was videoed doing this incredible feat. He'd be a proclaimed a hero, paraded around, commended by The President and promptly shoved on some news show (ala Larry King Live) and made to talk about the experience. What would happen if he decided (with a little alcoholic lubrication) to say to a caller that God was not there to give him the strength to save the survivors, but that following an "imaginary friend" was exactly why terrorists were killing people.

“Thus is the premise of "Imaginary Friend." Franklin Whitestone, hero of a 9/11 styled attack on a football stadium finds his life turned upside down when he announces what he really thinks about God on a national television show. He and his family swoop from American Heroes to American Pariahs in the scope of two days, once the faithful feel threatened more by a single atheist and his family than multiple bands of terrorists. Whitestone, his son Todd and his former wife Mary now have to dodge a marauding press corps, Money Grubbing Mega-Church leaders, old girlfriends, unhappy employers and gun toting ChritsoFacists if they want to live through a quintessential American Nightmare resulting from not being very careful what you say in front of a live microphone (or post on the internet).

“Inventive and well thought out characters make this a compelling read, as does the detailed writing style. The description of Nan and Dan's gun collection is alone enough to give you the creeps. Todd Whitestone, the precocious and gifted 16 year old son, is also a highlight of "Imaginary Friend" as he tries his best to help his father from a jam. Catherine, Franklin's alpha-mother, gets the best laughs as the Queen Bee of the Whitestone hive. Add the satirical bent of our instant-celebrity culture (an agent who advises Franklin just how rich he can get with a good PR man), and you get an entertaining novel about just how absurd the world of organized religion can get.”

A Foxhole Atheist, November 3, 2008
By Joseph Mensch (New York, NY)

“The atheist movement, slowly growing in this country, has been given a sudden boost from an unknown author named Douglas Whaley whose new novel, "Imaginary Friend," combines an impassioned polemic with a sophisticated thriller. The attempt alone would have been enough, but the end result is more powerful and entertaining than anything the atheist movement (or, for the most part, the thriller movement) has come up with so far.

“The story is about a lawyer, Franklin Whitestone, who rescues 53 people from a burning stadium but becomes a hunted man when he speaks candidly about his atheist views on national TV. The breathless chase across Ohio involves not just Franklin but Franklin's family, whose escape from their demented kidnappers is one of the high points of the novel. Franklin meets some colorful characters along the way, including Corbin Milk, a gay ex-C.I.A. agent who helps Franklin with his disguise, and Jonathan Harker, a PR agent who insists that Franklin can make tons of money from his ordeal. Even the God-fearing militant hunters have their virtues and sympathies. One is often pleasantly surprised, even relieved, by the humor that Whaley mines from the darkest and grisliest situations.

“For many years the atheists' cause has rested on the shoulders of writers like Richard Dawkins, Sam Harris, and most recently, Christopher Hitchens, whose logical arguments, while unassailable on their own terms, often fail to take the fight where it would really count, namely, the psychological realm. Religious fanatics will not be swayed by any number of scientific arguments that disprove the possibility of talking snakes; they hold the trump card of "The Lord works in mysterious ways." But if you can tap into their basic sympathies for their fellow man and demonstrate how destructive religion has been to innocent people (including all the deaths at the football stadium, bombed by an Islamic terrorist), you might be able to turn some heads. This is where "Imaginary Friend" succeeds so well.”

Thrilling and Contemplative, February 25, 2009
By O. Khan (Columbus, Ohio)

“A balance between gravitas and lightness, this book tracks one atheist's journey into intolerance. The book is easy to read and difficult to put down. Filled with memorable characters and action scenes, "Imaginary Friend" is a story that will stay with you for a long time. If you are an atheist, I imagine this book will reinforce your outlook. If you are not an atheist, this book will do two things: first, it will give you insight into the debate between belief and non-belief that has been growing in intensity in America for a long time. Second, this book will show you how often atheists have been mistreated and vilified, even to the point of cruelty. I highly recommend this novel to everyone.”
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So if anyone reading this is interested in reading “Imaginary Friend,” the paperback edition can be ordered from Amazon.com for $15.00, or the ebook is available on Kindle for $2.99.  If you read it, please let me know what you think, good or bad.
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Related Posts:
“Catholicism and Me (Part One),” March 13, 2010
“Superstitions,” March 21, 2010
“Catholicism and Me (Part Two),” April 18, 2010
“How To Become an Atheist,” May 16, 2010
“I Don’t Do Science,” July 2, 2010
“Explosion at Ohio Stadium,” October 9, 2010 (Chapter One of my novel)
“When Atheists Die,” October 17, 2010
"Escape From Ohio Stadium," November 2, 2010 (Chapter Two)
"Open Mouth, Insert Foot," November 21, 2010 (Chapter Three)
"Rock Around the Sun," December 31, 2010
"Muslim Atheist," March 16, 2011
"An Atheist Interviews God," May 20, 2011
"A Mormon Loses His Faith," June 13, 2011
"Is Evolution True?" July 13, 2011
"Atheists, Christmas, and Public Prayers," December 9, 2011
" Urban Meyer and the Christian Buckeye Football Team," February 19, 2012
“A Guide to the Best of My Blog,” April 29, 2013

Saturday, June 19, 2010

Masa Comes For Xmas



My son Clayton is a polyglot (one who speaks many languages). His talents first manifested themselves with an interest in learning Japanese, and the catalyst for that was meeting a man named Masakazu Hamasuna (“Masa”) when Clayton was a freshman at Miami University in Florida (1991). Masa, a Japanese national, was studying in the states, and they became (and still are) good friends. Masa suggested to Clayton that he might take a course in Japanese, and Clayton promptly did so.

As the holidays approached, Clayton called me from Miami and said that his friend Masa was trapped in the United States during the break and had nowhere to go. So Clayton wondered if it would be all right if for one week he took Masa with him to Indianapolis, where Charleyne was living with her husband Gabe (whose daughter Terry, slightly older than Clayton, would also be home for Xmas), and then bring Masa to Columbus for a week with me and my partner Jerry. I said that was fine, but had he told Masa what he would find first in Indy and then in Columbus? “What do you mean, Dad?” he asked.

A bit of explanation here. Charleyne’s husband Gabe had been a neighbor of ours during Char and my marriage, and was good friend to boot. He and I used to get high and go to movies together in his tiny sports car (and to this day I swear he would sometimes drive under trucks just to get my reaction, which, frighteningly, he won’t deny---he was one of the people who came to the New Year's Eve Party that I threw, but missed: "New Year's Eve Party Without the Host" Jan.7). After Char and I divorced, Gabe and Charleyne began dating and were married. Gabe and his daughter Terry moved into the condo Char and I had lived in before I took the job at Ohio State and moved to Columbus. The only complication this presented for Masa’s visit is that Gabe (and, of course, Terry) are African-Americans, and I thought perhaps that was interesting enough information to merit a head’s up to Masa ahead of time, and then on to the next challenge: Jerry and me, a gay couple (since Clayton was fourteen Jerry had been part of his life).

“Oh, he won’t care about any of that,” Clayton responded. Clayton had been reared in these unconventional circumstances, and nothing fazed him. “I’m sure not,” I replied, “but you can’t just spring it on him at the last moment. Tell him ahead of time.” “Okay, Dad,” Clayton muttered, grudgingly.

A week went by before Clayton and I spoke again on the phone and, of course, I asked him if he’d mentioned all this to Masa. Yes. And what did Masa respond? (Sometimes talking to Clayton is like cross-examining a hostile witness.) “Well, Dad, Masa sort of paused . . . and then said it made his family in Japan sound boring.” I had to laugh. It would make anyone’s family sound boring.

When Masa and Clayton arrived in Columbus after an enjoyable visit with Clayton’s Indy family, they proceeded to have a fairly traditional Christmas with Jerry and me. This started with a shopping trip to an Xmas tree lot, selection of said tree, and its decoration by the four of us. It was interesting to see all of this through Masa’s eyes: hmm, you kill a tree, install it upright in your home, decorate it with lights and who-knows-what-else, and then a few days later haul it out to the trash? Why? He didn’t actually ask these questions, but there was often a puzzled look on his face. Masa turned out to have a great sense of humor, and a good time was had by all.

Following Masa’s visit, I’ve seen him a couple of times. Once at a dinner in Indianapolis with Charleyne, Gabe, and Clayton, and again in NYC, where I was giving a lecture and he was then living (we had an entertaining breakfast at which I advised him on what Broadway shows his Japanese wife, with limited English skills, was most likely to enjoy). Clayton and Masa once took a trip up the Amazon River together (see above photos), where they fished for and caught piranhas. And sometimes through the years (until the advent of email put them permanently in touch) Masa would phone me from various places in the world (now a journalist, he’s currently living in South America), “Mr. Whaley, do you have Clayton’s address?” being his typical question.

Clayton went on to leave Miami, move to Tokyo for a year and a half of Japanese language immersion study at Sophia University (where he made friends with people from all over the world, all of them learning Japanese). Clayton is now fluent in the language (reading, writing, speaking). He currently is in charge of the wiring for the wings of Boeing’s new 787 Dreamliner (my little baby—yikes!), and since the wings are built in Japan, Clayton (who lives in Seattle) frequently spends long periods there with Boeing executives, where he's often the only person in the room who fluently speaks both languages (and, he tells me, the Japanese are usually not happy to have an American doing the translations).

So, meeting Masakazu was a life-changing experience for Clayton. And for Masa it meant not only gaining a good friend, but also a chance for an in-depth immersion in the craziness that is Christmas in America.

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“A Guide to the Best of My Blog,” April 29, 2013

Tuesday, June 15, 2010

The Summer Bar Review Tours


If you’ve just graduated from law school and are planning to take the bar exam in some state, you are well advised to pay for a bar preparation course (and it’s not cheap). These proceedings offer extensive lecture coverage of all the legal topics (commercial, property, criminal, evidence, torts, etc.) likely to be tested on the bar exam. Typically, the lectures are conducted five times a week, each lasting three hours (with two breaks), with video replays the next morning or afternoon. The students are also provided with study guides of intimidating size. Stir in the panic that graduates in this position feel (after all, their entire career is on the line), and it becomes quite an ordeal. In Florida one year, the bar examiners suddenly announced that only 50% percent of those taking the bar would be admitted to practice (down from 75%)—that first day in Miami was like trying to lecture to horses in a burning barn. On July 10, 1986, Michael Schmidt, one of our OSU law school graduates, was driving his Mercedes-Benz in downtown Columbus when a sinkhole opened up in front of the Palace Theater and swallowed his car. Counselor Schmidt was able to scramble from the vehicle (and the mayor subsequently bragged that Columbus routinely filled its potholes with luxury cars). When asked if he’d ever been through something that horrible before, Mike replied, “Well, there was the bar exam.”

These review lectures are usually given live by expert law professors from the particular fields. I entered into this lucrative sideline in 1975, eventually joined a nationwide bar review course organization, and finally—worn out—quit in 1988. The lectures are given twice a year: in the summer and again in early winter (the times bar exams are administered in most states). I gave five routine lectures: two each on the law of Contracts (a heavily tested subject), and one each on Sales, Commercial Paper (checks and promissory notes), and Secured Transactions (how creditors protect liens). Because the student feedback was good, the company sponsoring the lectures kept expanding my schedule, sending me all over the country, year after year. One summer I hit 15 cities in a month and a half without coming home! Since the lectures were at night and I had days to myself, this travel allowed me to get to know all sorts of cities fairly well: there was always a week in NYC each summer, another in LA, plus others in Chicago, Birmingham, Detroit, San Francisco, Minneapolis, Atlanta, Indianapolis, Tampa, Boston, and many more. I was an Air Force brat as a child, moving around the world, taught at law schools from the University of California Hastings (in San Francisco) to the University of North Carolina, Boston College, as well as three schools in the Midwest, and after I quit the bar review circuit, and stopped giving the lectures Barbara and I set up throughout the USA (267 of these over fifteen years; see “The Woman Who Runs My Life,” May 5), I retired from teaching law. When people ask me if part of the good life for me will be doing a lot of travelling, the answer is a decided no.

I learned a great deal about public speaking from these lectures. In Minneapolis, for example, year after year not only was there the usual camera pointed at me, but there was a monitor close by in my field of vision; for hours each night I couldn’t avoid seeing myself as I lectured. This taught me to stand straighter, to smile more, to be careful of personal grooming, to use gestures to help break up the monotony for the students who were looking at me, and so on. In some locations my voice was amplified, and from hearing it I learned to pitch my tones lower so the sound was easier on the listeners’ ears. All of this was very unlike my usual classroom behavior, where I’m a great wanderer, walking back and forth, up and down the aisles (startling some students, who hurriedly punch keys to turn off the video games, Facebook, or whatever was on their screens other than class notes). When I get close to the students and look them in the eye, they pay more attention, plus I can tell if they understand what’s going on better. Another benefit is that I learn their faces faster, making them into individuals, which always pays off.

In the bar review lectures, I became so immersed in the constant repetition of the same five lectures that I joked you could wake me from a sound sleep, tell me which lecture I was giving, point at the microphone, and I’d take it from there—no preparation required. This actually, accidentally, got tested one year (early 1980s, I reckon). I was spending a week in NYC giving these same five lectures, when a good friend invited me out to Long Island for a party. I went, there was too much drinking, great fun was had by all, but then I remember nothing until I woke up the next morning at the 9 a.m. bar review lecture I was giving in the basement of an Armenian Church, with 500 bar review applicants listening to my every word! THIS WAS TERRIFYING! It’s a scary thing to wake up teaching. Okay, in my life I had had too many drinks before this, but never to the point where I didn’t remember returning to Manhattan, going to bed, dressing, going to the lecture hall, and starting the lecture. Sweat suddenly appeared on my brow, I glanced at my watch, saw it was 9:20 a.m., heard what I was saying (it was the first part of the second Contracts three hour lecture), took a drink of water, and continued talking as if nothing at all was wrong. I then put extra effort into making the lecture as interesting and amusing as I could (though such entertainment was always built into my talks in order to keep the listeners’ minds alive). At the first ten minute break, I sat down behind the lectern with great foreboding—were they about to rush the podium and tear me to pieces while howling for their money back? But no. All I heard were the usual questions about particular points I’d made in the lecture; the students seemed unaware of my dilemma. Routinely at the end of these lectures, the students all fill out evaluations in each city, and they are later sent to the lecturer (after being tabulated at the company) so he/she can learn where improvement is needed. When the huge package of these arrived at my home in Columbus at the end of that summer, I sorted through them with growing dread, finally finding the second Contracts lecture reviews from that fateful day. They looked just like all the others. The NYC students were happy. “Great lecture” was a typical comment.

Ah, well, we were all young once and did stupid things, but I certainly learned my lesson this time. I never again had an alcoholic drink on the night before a bar review lecture (nor have I ever been even close to that drunk since). In 1988, exhausted from these repetitive travels for thirteen years, I turned in my microphone. But I’m pleased to think that thousands of students were more comfortable taking the bar after having sat through the Whaley’s bar review lectures. All over the country, I run into such students quite often, and—now lawyers—they’re still grateful.

Whether they remember the law I supposedly taught them is a different matter entirely.
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Related Posts:
“How I Became a Law Professor,” January 27, 2010
“The Socratic Dialogue in Law School,” January 31, 2010
“Clickers,” March 17, 2010
“The Sexy Promissory Note,” August 17, 2010
"Mortgage Foreclosures: The Disaster of Unintended Consequences," October 27, 2010
" Update: Mortgage Foreclosure and Missing Notes," November 16, 2010
"Women in My Law School Classroom," January 8, 2011
"I Threaten To Sure Apple Over an iPad Cover," April 8, 2011
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011
“A Guide to the Best of My Blog,” April 29, 2013

Saturday, June 12, 2010

Rehabilitating Doug


All my adult life I’ve had a fairly vigorous workout regimen (with various lapses, typically when I’d settled into a new relationship and was being well fed by the cooks that Charleyne, David, and Jerry all were). Gay men are required to be in good shape (since men tend to choose based on looks, unlike women, who, as a whole, are more genetically tuned to finer qualities), so I was always muscular, even when carrying too much weight. I also had periods where I was skinny. From 1999 until 2006 I was on the Atkins diet, kept to it religiously, and went down to 175 lbs, which made me look like a walking skeleton. People were very worried about me (“Does he have AIDS?” was heard among the law students) (no).

Coming out of the heart transplant, my weight dropped dramatically due to the extensive steroids I was taking, and I fell to 173(!), which had Emily, one of the nurses who runs the heart transplant program, telling me to drink Ensure to gain weight. I’ve now leveled out at 190, a good weight for me.

Part of the requirements for someone who’s had a heart transplant is enrolling in the OSU Center for Wellness and Prevention’s rehabilitation program, and making 36 visits to a well-equipped gym near Kenny and Lane, where one is under the care and instruction of many people who know how to deal with heart patients. Most of the patients in the program have had major heart troubles and are now trying to remedy that and avoid future difficulties and have no more “events” (the euphemism used by most patients). Since I was not having major health problems, I had to be careful in how I talked to those I was working alongside with. I’ve gone from dying to being perfectly healthy, and bragging about that would be a mistake. It they wanted to talk about their health, fine, but I didn’t bring up the subject. I also didn’t tend to mention the heart transplant casually, but it soon was known that I was a recipient of a new heart, and that did lead to me telling my story to people on the treadmill next to mine. Mostly they wanted to know about the Kindle I was holding in my hand on the exercise bike. I made friends too (one of them even went on Amazon and bought my novel, “Imaginary Friend”). Nice people. I wish them all the best.

The hour and a half these visits took were mostly cardio exercises (30 minutes on a treadmill, 20 minutes on an exercise bike) and finally stretching to calm down. My heart has no nerve connections, which means, as I’ve mentioned before, that it doesn’t take signals from me: it won’t speed up when I’m frightened, nor calm down with a couple of deep breaths. When exercising, I must start slow until the heart figures out it needs to start working harder; when done, I must slow down and help it decide it can rest now.

I enjoyed the workouts, but they took major slices out of my week, and, paradoxically, meant that I didn’t workout as often as I would have on my old schedule (to which I’ve now returned). Why not? Because my routine is to workout every other day, and the OSU sessions were at 11:30 am Mondays, Wednesdays, and Thursdays. That put me off rhythm. I tended to workout on Saturdays at home, where I have a universal gym machine and exercise bike in the basement, but that was sporadic (until about three weeks ago when I was nearing the end, and, like a “horse who can see the barn,” as my father used to say, I got excited about being in terrific shape, and figured out a way to work the OSU visits into a steadier schedule at home). I’m now back on track with the every other day exercises, and things are good.

Let me finish by saying how very grateful I am to the wonderful people at the OSU Center for Wellness and Prevention, particularly Sandy, Mary, Grant, and Ellen. On the last visit to the Center, I brought party hats and arranged for the above photo to be taken; Sandy Miller and Mary Bass are the happy women toasting their final day with me. Many thanks to them and to everyone who worked with them in rehabilitating Doug.
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Related Posts:
"About That Heart Transplant," January 24, 2010
"My Heart Belonged to Andrew," February 17, 2010
"Another Letter to Andrew's Parents," March 10, 2010
"A Toast to Andrew," May 2, 2010
"Mama, Biopsies, and My iPad," May 19, 2010
"The First time I Nearly Died," August 3, 2010
"The Purring Heart," November 23, 2010
"1999-2001: A Dramatic Story, " December 15, 2010
"Naming My Heart," March 24, 2011

Tuesday, June 8, 2010

Milking cows


My first partner, David, had grown up on a dairy farm just east of Zanesville, Ohio, about an hour’s drive from our home in Columbus. From time to time we’d visit his family on that farm, and things went well. I always got along splendidly with his parents and numerous siblings. David’s father John particularly liked having long talks with me. Inevitably during these visits our musings would be interrupted by John saying to me, “Well, Doug, it’s time to milk the cows. Want to come down to the milking barn and talk to me while I do it?” I agreed to this, but there turned out to be a catch. After the first visit or so, no one can stand around and watch twenty or so cows being milked in the repetitive way this is done (let the cow in, close the gate, swab down the utters with a tool, attach the hoses, start the milking machine, detach the hoses, let the cow out, repeat until you run out of cows) without it occurring to the observer that he/she could easily help with the process.

Thus, reluctantly, I learned how to milk cows (mechanically, I hasten to add). When David and I parted after four and a half years (1977, when we met, romantically, at a Valentine’s Day party, until the summer of 1981), that was hard (though we are still good friends—he came to the 2010 New Year’s Eve party I threw, but missed; see post of Jan. 7). But, it was some small consolation to think my milking days were over.

Move now to the summer of 1984. By this time I was engaged in writing the text of a casebook on the law of Contracts with Professor Thomas Crandall, then a member of the faculty at the Gonzaga Law School in Spokane, Washington. Casebooks are the standard texts for teaching law to law students, and Tom and I were out to create a very new way to do it. After I gave a bar review course lecture in Los Angeles that June, I took a train to Portland (beautiful journey: whales on one side, mountains on the other), and then a different train to Spokane, where Tom and his wonderful wife Candace (called “Dace,” pronounced “Dace-uh”), met me at the train. They drove me to the farm they’d purchased fifty miles outside Spokane, where they lived with their two children, Kelly and Franklin, then ages four and two.

Thomas Crandall is one the great characters of our time. Huge man, big laugh, very intelligent, and willing to try about anything, wise or not. Dace is smart, and funny, a naturally nice person, and to top it off, beautiful (which Tom, alas, is not). The kids were fun to play with, so, all in all, it was a good visit. My task while there was to confer for a week with Tom over the details of our book, then a work in progress. (He also cajoled me into teaching a Consumer Law class at Gonzaga, which I enjoyed—the students were very good, and they adored Tom.)

By the time I had been driven me from the train to the Crandall farm, it was just getting dark. We sat at the kitchen table, had a quick drink, and talked and laughed for a bit. Then Tom, to my great surprise, suddenly said, “Well, Doug, we’ve got ten cows to milk before supper.” My heart fell. Ten cows! It turned out he was kidding—they had no cows, nor any animals except two very friendly dogs—but Tom couldn’t have picked a better foil for his little joke. I certainly knew what milking ten cows was like.

One last favorite story about that visit:

I was put up on a living room fold-out bed each night. This was comfortable enough, but one unforeseen difficulty was that there was a huge picture window facing the front of the house and as I lay in my bed and looked at it over my feet, I was to learn it had no curtain. The spectacular view was of Mount Spokane and the Selkirk Mountains, but in the summer when the sun came up early my bed was engulfed with dazzling light. I’m not a morning person, but, with a pillow over my head, I was able to get through the effulgence with only a minor grumble. The first morning, I awoke about six a.m. and had to go to the bathroom, which involved a short trip down the hall to my left. No problem, well, except the noise of my passage woke the two young children, and they were quickly up and ready to romp with old Doug (well, then only middle-aged Doug). At six o’clock. Let me repeat that: six o’clock. This frivolity woke parents too (Tom may have slept through it all, come to think of it), and the early morning revelries began (made worse, I think—memory being uncertain here—by my having had a bit too much to drink the night before).

The next morning I awoke again at six with the same urge. What to do? Then a happy solution occur to me: just put on slippers, step outside the front door to my right, and take a whizz in the woods (there were no neighbors for miles, and Tom and I had done this very thing while exploring his property the day before). So I quietly climbed from bed, donned the slippers, and exited into the chilly morning air. I was wearing only shorts and a t-shirt, but I wasn’t planning to be out there long; the woods were close. I was greeted by the two dogs, who knew, from yesterday’s adventures, that I know how to pet a dog and was a friend of the family. They were delighted to accompany me on my short journey to the woods.

But when I turned to go back, an unexpected problem arose. Can you guess what it was? It certainly never occurred to me.

Obviously, considered later in a more reflective mood, I should have rememberd it was the duty of the dogs to guard the house and not let anyone back in; they took this solemn obligation seriously. When I started for the house, they ran and got in front of me, growling softly, tails wagging (they were pretty sure I was okay, but still . . .), and the male dog even grabbed my wrist gently in his teeth. I froze. Seeing that I’d stopped moving, they wagged their tails even harder, and suddenly were friendly again. Now what? It seemed colder every second, standing there in my skivvies, looking longingly at the door only twenty feet away, rethinking my choice of Tom as a coauthor.

So I played with the dogs—fetch the stick, that sort of thing—and with every possible chance I moved a few feet closer to the door. Finally I got near enough to turn the knob and let these trusty guardians run into the house ahead of me, which they did with great enthusiasm, settling themselves in the hall between me and the bedrooms, still on watch, tongues out and panting, doggy smiles on their faces. Fine with me. With a shiver, I hopped into bed and quickly fell asleep.

When I related this story to Tom and Dace later that day, I was considerably annoyed to realize that Dace seemed pleased with the dogs’ behavior. Okay, I understand her reaction—mother protecting her brood and all—but let her shiver out in the chilly dew in her underwear for twenty minutes and then we’ll revisit the incident.

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“A Guide to the Best of My Blog,” April 29, 2013

Saturday, June 5, 2010

Directing “Closure”


When I retired from full-time law teaching in 2004 I went back to other activities: playing tournament bridge, writing novels, and theater. In my youth (sigh) I did a great deal of theater, both as an actor and director, and it was ever a great love. I now own a collection of plays numbering in the thousands, very useful for outings of the “Whaley Players” (see “Elena Kagan and Me” May 23). When I was in my junior year of college I had a month-long debate with myself as to which career I should choose: law or theater. I settled on law (and that went very well), but the alternative yearning kept pulsing all these years. Starting in the fall of 2004 I began anew, and since then have been involved in ten productions either as an actor (best part: King Lear) and director (“Who’s Afraid of Virginia Woolf,” and others). There are few things in life as pleasantly thrilling as waiting in the wings for the curtain to go up.

I will be directing a new play entitled “Closure” by James McClindon for two performances on Friday, July 16 and Saturday July 17 at 7:30 pm, for the Curtain Players Playwrights Festival (nice theater, well-known in the Columbus community, just north of Westerville OH.

The CP Playwrights Festival is an annual event. This year playwrights were invited to submit plays for consideration, and 176 (!) were received. From that number a CP committee chose two one acts and two full-length plays for performance this July. The two one acts will be performed the Friday and Saturday before my play goes on, and the other full-length the weekend after that. The plan is to demonstrate for audiences how plays are developed. So the first one act will be just a seated reading, the second will be a staged reading (with the actors carrying scripts), then “Closure,” which will be announced as a staged rehearsal production without complete sets, but “off-book” (memorized) and fully acted out. The final play is a traditional staging with an elaborate set and costumes, etc. After each performance the playwright, director, and cast will take questions from the audience.


When CP asked me if I’d like to direct one of the plays, I read them all, but latched onto “Closure” and hugged it tight to my chest. It’s a beaut: both side-splittingly funny and poignant at the same time. With a cast of four (and I have my dream cast playing it), the plot concerns an older man in Cambridge MA who has never been particularly loving to his son and daughter, but who’s trying to make amends right before his death. Whenever he takes a Percocet, a vision of the Virgin Mary appears to him, and she gives him major advice (see photo—in our production, just as she always was in the statues I stared at in wonder in church, she will be barefoot and dragging around a snake on stage). The father’s vision, however, is not of the real VM, but merely his imagination’s rendering, and this one’s got a smart mouth on her (“So, you’ve been taking advice from a Jesuit, have you? How many deities has he birthed?”). The play is quite wonderful, Broadway-ready, and I predict it will become a staple of community theaters across the country. It’s therefore a thrill to put on the first staged version of the show (albeit with limited scenery and costumes and only two performances). The author has asked that we make a video of the CP production.

If anyone reading this is in the Columbus OH area and came to see my show, I’d be very pleased, and much interested in your reaction. Contact info is at http://www.curtainplayers.com/reservations.php. Individual tickets are only $5.00.
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Related Posts:
"Douglas Whaley, Actor," August 14, 2010
"I Am an 89 Year-Old Jew," January 13, 2011
"Another Opening, Another Show: Doug is in 'Hamlet," April 29, 2011

Wednesday, June 2, 2010

Bob and Kink Get Married



In 1935, my father, Robert Whaley (b. 1919), moved to Jasper, Indiana (pop. 10,000), from an even smaller Indiana burg named Milltown. He was just entering his junior year of high school, and was a bit concerned. His family was nominally Protestant (he himself was never religious), but as a child the people in Milltown were anti-Papists, and he had heard that Catholics actually had horns. He was relieved to find out it wasn’t true.

My mother, LeNore Kunkel (b. 1918), was one of nine children (eight girls, one boy). These children were all given beautiful names, but then called by unattractive nicknames. Thus “Antoinette” became “Net,” “Marvin” was “Bud,” “Anna Mae” was “Mazie,” etc. My mother was born with very curly hair so she was branded “Kink,” a name she hated, but which stayed with her until she banished it late in her life (her relatives and old friends still call her that). She was a feisty child, determined to get her own way. After Mom died Net told me that in fights with all of the other sisters except the oldest, Mom would win the fight and then insist the loser kiss the floor in front of her! For Xmas one year, her only gift was a lump of coal (no joke—learning of this years later, Dad was much upset at its cruelty).

Both parents were fun and easy to get along with, and when they met at Jasper High School they were soon dating. The first time Dad went over to my mother’s house (11 people, remember) he thought there was a party going on! They became a couple, a relationship that ended only when Dad died in 1980 (Mom, grieving, not meaning to be humorous, smacked her hand against his coffin and muttered, “Bobby, I could kill you for dying!” She followed five years later). The last year of high school Dad was the President of the Student Body and Mom was head cheerleader. Marriage was inevitable.

Dad went off to Indiana University, majoring in Business, but joined the Army Air Corps toward the end of his senior year; it was 1941 and war was certain to start soon (Indiana patriotically awarded him his degree anyway). He was sent to Randolph Army (now Air Force) Base in San Antonio, Texas, for training, and he and Mom agreed that she would join him there in December and they’d get married. They were both excited about this. Dad started taking Catholic religion training (mandatory for non-Catholics marrying Catholics), and promptly got into a debate with the priest who was to marry them. The priest, who Dad liked a lot, stopped suddenly and told Dad, “Wait here,” whereupon he went to another room of his residence and returned with a bottle of whiskey and two glasses, and, drinks in hand, the debaters began anew.

Meantime Mom was back in Jasper, and becoming nervous. She had once been to Detroit with her uncle, but other than that brief trip hadn’t left Indiana (ironically, she spent the rest of her life moving from one city or country to another). A small town girl, constantly put down by her parents (“Marry one of the other girls,” they told Dad, “Kink’s trouble”), global war imminent, scared of travel and big cities, she wasn’t sure she could go through with the marriage. Nonetheless, she swallowed hard and let her father drive her to Washington, Indiana, where she caught a train for San Antonio. On the trip she confessed her doubts to a young sailor, and he told her not to worry. He was therefore amazed when she abruptly left the train at Dallas, announcing she was definitely going home! He grabbed her arm on the platform. “A man who loves you is waiting for his bride in San Antonio,” he told her gently. “Don’t disappoint him.” She nodded, tears in her eyes, and returned to her seat.

Their happy reunion was blown into chaos by the Japanese attack on Pearl Harbor on December 7th. Dad’s unit was told not to get married because “some of you could be shipped out instantly and be unable to spend the night with your bride.” Nonetheless the wedding plans went on, and they were married at the Randolph Army Base chapel on December 13th. There was no honeymoon, and in the spring of 1942 they moved to El Paso, where Dad underwent training as a pilot.

Bob and Kink had many wonderful stories from their year and a half in El Paso (and when the three of us drove through there on our way to Las Vegas in 1969, they both became misty-eyed). They rented half of a duplex from a little old lady whose husband had recently died, leaving her alone with a little old dog that she sincerely hated. She was so proud of having a military man living in her house she had a large Army Officer’s Seal (about four feet in diameter, Dad said) placed on the front lawn with a spotlight on it. “Because of that, you never had trouble finding our place,” remarked Dad later. The first time the Whaleys threw a party, things got sort of loud, and Dad’s sleeve suddenly was plucked by a guest saying, “Your landlady’s at the front door.” Uh-oh, he thought, we’re disturbing her. But when he came to the door, she was smiling, holding a bottle of wine. “It sounded like you were having so much fun,” she said, “I thought you might need this.” Taking her by the arm, he promptly introduced her to everyone, and she proceeded to have a great time. “She liked us so much,” Mom remembered, “that you had to be careful what you said to her. I once casually remarked that the bathroom needed to be painted soon, and she quickly had it redone in red, white, and blue swirls.” “Drunks would go in there and come out sober,” Dad added.

Mom became pregnant with me, Dad was shipped off to Panama for the duration of the war (he’d volunteered for a mysterious “secret mission” which turned out to be flying drones from another plane over the Panama Canal to prevent it from Nazi attacks, none of which happened—he spent the war writing transfer requests for combat duty). Mom returned to Jasper, where I was born September 25, 1943.

There is much more to the story of Bob and Kink’s marriage (see, for example, “My Competitive Parents,” Jan. 20), and later posts will explore some of their myriad adventures.
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Related Posts:
“My Competitive Parents,” January 20, 2010
"Goodbye to St. Paddy's Day," March 2, 2010
“Bob Whaley, Boy Lawyer,” March 28, 2010
"My Mother's Sense of Humor," April 4, 2010
“The Sayings of Robert Whaley,” May 13, 2010
“Bob Whaley and the Best Evidence Rule,” June 26, 2010
“Dad and the Cop Killer,” July 19, 2010
“No Pennies In My Pocket,” July 30, 2010
“Doug, Please Get My Clubs From the Trunk,” August 20, 2010
“The Death of Robert Whaley,” September 7, 2010
"The Death of My Mother," March 31, 2011
“A Guide to the Best of My Blog,” April 29, 2013