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Monday, October 31, 2011

I Hate Meetings

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One of the great pleasures of retiring is that I no longer have to attend faculty meetings, as I did regularly for 34 years.  Meetings of any sort are usually awful, but I'm alive to tell you that a collection of law professors gathered in one room to discuss anything is hell on earth.  Like all lawyers, law professors can verbally litigate sentences just uttered, and, also being teachers, then expound for interminable periods on their own point of view.  It's so boring that mice have moved out of the building rather than ever experience this again.  Indeed, an exterminating service should consider scheduling law school faculty meetings at one contaminated house after another and make a fortune.



At one meeting back in the 1970s we were all seated around tables forming a large square (so we could see each other clearly and not risk missing any of the bomfoggery).  To avoid injury from falling asleep and smashing my nose on the hard wood of the table, I began to experiment with writing left-handed (I am right-handed by birth).  The professor sitting next to me noticed this and asked what I was doing, and I explained.  Soon he was trying the same thing, and then the person next to him, and eventually six people were productively engaged in this activity.




I certainly don't mean to imply that I haven't attended any exciting faculty meetings—there have been a number of those.  At one I made a motion we censor the dean for outrageous conduct, and no one slept through that one.  But on the whole meetings are tedious affairs in which attendees mostly do not listen to what's being said, but are only waiting their turn to rise and speak while spreading their beautiful feathers for an admiring audience.  I became so disgusted with how badly meetings went that I finally sent around to the faculty, half seriously and half in jest, a "Proposed Etiquette for Faculty Meetings."  Here are its rules, somewhat doctored, and with a few additional ones, starting at #6:


1.      Except in extreme cases, it shall be considered rude to raise one's hand to speak more than once to an issue.

2.      No one cares to hear someone take the floor to explain how the speaker plans to vote and with whom the speaker agrees. Let it come as a surprise.

3.      Given the issue, most of the people in the room can predict who will say what. This being so, try to refrain from stating the obvious.

4.      There is much virtue in silence. If you can get through a faculty meeting without volunteering a word, many in the room will think you a splendid colleague.

5.    No faculty meeting should last more than an hour. Anything that can't fit into that period should be put over to the next meeting.  If there's an important item on the agenda, put it first; otherwise its time will be overwhelmed by minutia. 

6.    If you are considering raising your hand to speak, first ask yourself, "Am I boring?"  If the answer is "yes," perhaps you should consider never speaking, or at least limiting yourself to no more than 30 seconds per comment.

7.    Also ask yourself, "Am I annoying?"  If the answer to this one is also "yes," re-read number 4 above.  Ignore this at your peril, for if you push your colleagues too far, they will be silently considering severe consequences (see illustration below).



8.    If you are chairing the meeting, be firm.  Cut off the bores and the annoyers.  If the conversation has miraculously stopped, don’t stupidly ask, "Is there anything else someone wants to say?"  On the other hand, if  the discussion refuses to die down, but the debate has descended into either tedium or vitriol, announce that you will take two more speakers only and then entertain a motion to vote.

9.    Bring a copy of Robert's Rules of Order to a meeting, and, when bored, study it.  I became a dangerous faculty member when I serendipitously discovered that a motion to adjourn is not debatable.

Happily, I'm retired and my faculty meetings days are over.  If you, reader, are, alas, regularly exposed to meetings of any kind, you have my deep, deep sympathy.  Good news:  I've heard that with self-hypnosis you can actually learn to sleep with your eyes open.  You might investigate that.



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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 Summer Bar Review Tours,” June 15, 2010
"Women in My Law School Classroom," January 8, 2011
"Life's Little (But Important) Rules," April 23, 2011
"Adventures in the Law School Classroom," September 10, 2011
“A Guide to the Best of My Blog,” April 29, 2013
 

Sunday, October 23, 2011

Mama Cat Saves My Life

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Mama Cat and Owner
The Whaley Family line has always featured two unfortunate traits: (1) optimism when it's not justified (and, indeed, is contradicted by all available facts), and (2) ignoring important symptoms even if doing so will likely lead to major trouble.  This all was on exhibit Tuesday, July 5, 2011.

Readers of this blog may remember a prior post entitled  "Report on Old Doug: Health, Theater, eBook, and More" (June 28, 2011) in which I described various topics.  One of these was my enthusiasm for attending a writers' conference in New York City entitled "ThrillerFest," held July 6-10 of this year—and at which I hoped to pitch my self-published novel "Imaginary Friend" (it's an atheist thriller, currently available on Amazon and Kindle) to the country's leading agents.  I had arranged (1) a plane flight leaving that Tuesday at 2 p.m., (2) a five day reservation at the Grand Hyatt, (3) a paid $800 ThrillerFest registration, (4) scheduled dinners with old friends, and (5) tickets for four Broadway plays ("Book of Mormon," "Anything Goes," "Sister Act," and "War Horse").  But, as the "Health" part of that blog post reported in some detail, I was growing weaker instead of stronger, primarily because I wasn't eating enough (and that because of being over-medicated).  From my usual (when working out) weight of 195 to 200, I lost forty pounds, and at my worst stepped on the scales and saw the number "157."  Did this stop me from going to NYC, weak though I was?  Absolutely not.  "I'll travel by cabs, walk little, spend most of my day just sitting in ThrillerFest seminars—I'll take it easy, but I'm going."  Stupidly, it never even occurred to me to cancel until death was whispered in my ear.
I spent that Sunday and Monday slowly, painfully, getting ready for the trip, and by the time I went to bed on that Monday night, though exhausted, I was completely packed and ready to go.  All I had to do on Tuesday morning was get out of bed, shower, dress and drive myself to the airport.  That's all I had to do.  That's all.


It was almost impossible.  I was even weaker when I awoke on Tuesday, and I struggled from the bed to the bathroom.  In my shower I have a little plastic stool that I use to put my foot up on when I'm washing, but this morning it had a more important role.  Too weak to stand for the whole shower, I sat down on the stool three times just to rest, letting the water hit me as I panted.  When I finished, I was too weak to stand and dry myself, so I laid down on the bed to do that.  Finally it was time to dress, but that too was a nightmare.  I'd put on an article of clothing and then lie down on the bed and pant for awhile.  It was pathetic, but I was still hadn't considered cancelling the trip.


Mama Cat was watching all of this very carefully.  In this blog I've written numerous posts about her (and my other cat, Barney), but let me quickly recap her story.  At age one she escaped from the home in which she'd originally lived, had an adventure with a tom cat, and produced a litter of kittens.  The number of kittens in her litter is unknown, but cats typically give birth to three to eight.  Mama, even though declawed, managed to keep two of them alive until all three cats were rescued, taken to a vet's office (where she acquired her name), the two kittens weaned and given away, and Mama became the office cat for a few months until she was taken home with me.  She's incredibly smart and I'm very pleased at how much she loves me, witness what follows.
That Tuesday morning, as I lay panting on the bed, she jumped up beside me and stuck her nose in my ear while making an urgent "Mew, Mew, Mew!" sound.  It clearly meant "GET UP!  DON'T DIE ON ME!"  Mama had seen her kittens die and she knew what was happening.

"Mama thinks I'm dying!" I muttered, amazed at the thought.  Then I remembered my own and my family's history of ignoring symptoms, decided she might be right, made a phone call to my doctors, and shortly was in the emergency room.  I spent three days being fed through an IV drip, with more than one doctor assuring me that "Mr. Whaley, you'd have died on the airplane from system failure."
Mary
Shortly thereafter I was given a medicine that dramatically increased my appetite, and I had the good sense to put myself under the care of my longtime friend, Mary Bush, a professional nutritionist.  When I nearly died of a burst appendix in 1978---I was only 34---Mary had saved my life (see "The First Time I Nearly Died" below), and now she took on the task again.  Driving me to Bed, Bath, and Beyond to buy a hand-sized mixer, and then to the grocery store to introduce me the ingredients to go into that mixer (yogurt, Benefiber, flaxseed, ice cream, fruits, and much, much more).  She showed me how to put it all together, and three times a day I drank her "cocktails" and then supplemented them with various foods, such as peanuts (which have lots of fiber).  In the beginning the cocktails Mary prescribed were easy to drink, but the other foods (even the candy bars she told me to eat for much-needed calories) tasted awful.  however, as the days went by, my taste buds were re-stimulated, and the appetite medicine made me hungry all the time.  I quickly gained weight, and within a month was back to working out on the weight machine and exercycle in my basement.  I'm putting on much muscle, and feel great (196 this morning).  So I'm heavily in Mary Bush's debt once again.  [I love you, Mary—thanks for saving me both times.]
Barbara
A final note.  As related in "The Woman Who Runs My Life" (see below) my good friend and full-time employee and manager, Barbara Shipek went to work on the day I was admitted to the hospital to see what she could do to prevent my cancelled trip from being a total financial disaster.  She talked the Grand Hyatt into completely cancelling my reservation (including that Tuesday, which was in the "too late to cancel" period), she couldn't get ThrillerFest to refund my fee for the convention but they did agree to give me a free ride for the summer of 2012, then she called the airline and received  an assurance that with a doctor's certificate the airfare would be refunded (minus a small cancellation fee), and finally she phoned the ticket company that had sold me the theater tickets weeks before.  When I'd put them on my Visa I was clearly informed that all sales were final, but Barbara, as she later explained, went through three levels of supervisors, telling each my sad story while "playing the violin," and eventually was assured that all monies would be recredited to my Visa account (even for "The Book of Mormon" which had already occurred!).  How she did that, I don't know, but she's a wizard at that sort of thing, which is why I love her too and have kept her close to me for over thirty years.  I did miss ThrillerFest, of course, and the friends I was going to see once again, and the four Broadway shows, but at least thousands of dollars didn't vanish along with those adventures.  I'll sally forth and do it all next July. 



So from nearly dying on Tuesday, July 5th, to being in very good health as I approach the second anniversary of my heart transplant (November 23, 2009), it's been quite a scary ride this summer and fall, but with the help of those mentioned above and many others (friends and family) I made it.  In another month I'll post a blog entry about what it's like living with someone else's heart for two years.

[And you thought I was exaggerating when I titled this post "Mama Cat Saves My Life," didn't you?]
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Related Posts:
"Dog Meat," December 27, 2009
"Parakeets and Me," February 5, 2010
“Bears,” February 23, 2010
"The Many Faults of Douglas Whaley," March 31, 2010
"The Woman Who Runs My Life," May 5, 2010
"Mama, Biopsies, and My iPad," May 19, 2010
"The First Time I Nearly Died," August 3, 2010
"Teaching English to Cats," August 6, 2010
"The Purring Heart," November 23, 2010
"Two Cat Stories: Mama and Barney in the Wild," July 9, 2011
"Report on Old Doug: Health, Theater, eBook, and More," June 28, 2011
"Zoo Stories," August 30, 2011
“Mama Cat Saves My Life,” October 23, 2011
"Stepping on Cats," February 8, 2012
“Snowbirding, My iPhone 5, and the Coming Crazy Cat Trip,” December 5, 2012
"Barney Cat and the Big Mammal Nightmare," January 7, 2013
“A Guide to the Best of My Blog,” April 29, 2013

 

 

Wednesday, October 19, 2011

How To Write an Effective Legal Threat Letter

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Since I graduated from law school in 1968 I've always has some sort of legal practice which varied from extensive in the early years, to these days when I'm retired and mostly just doing consulting work for a hefty fee.  In this period I've written a lot of letters threatening legal action on behalf of my client (or, on the rare occasion, myself—see Related Posts below).  In the classroom I've passed on my advice on how to create an effective letter, and now I offer it to you, blog reader.

A letter threatening legal action almost always discombobulates a recipient who is not him/herself routinely involved in legal actions.  I tell my law students that in their coming practices they will often receive such letters (or nowadays even emails), and they will calmly evaluate what to do about them depending on the legal issues involved and the wisdom of litigating them.  But the non-legal recipient of such a letter is in a very different position.  Non-lawyers are usually very upset just by the thought of having to (a) hire a lawyer, (b) pay the lawyer's fee, the court costs, and (gasp!) the damages that flow from losing, as well as (c) the publicity of being the defendant in a lawsuit and having to testify, and (d) having his/her common practices condemned by some jury and/or the court of common opinion.  The recipient, contemplating all this, feels inner organs turning over painfully, and will likely have trouble sleeping that night.

The first thing that occurs to many in such a state is to avoid the whole thing by settling the matter here and now.  Good.  That's exactly the attitude you want the person receiving your threat letter to adopt. 

All this presumes that the recipient is not locked into a "sue and be damned" mind frame before receiving the letter.  For this reason, I never make legal threats when dealing with potential defendants in person or on the phone.  I don't want this person to get angry and take it out on me with language like "I'll see you in court, you son of a bitch!"  After an exchange like that any subsequent letter will come as no surprise, and will not often make your defendant think about settling.

Before we go any further let me repeat a thought from the last post on this blog ("What Non-Lawyers Should Know About Warranties"): it is unethical and immoral to threaten something you are not really planning to do, and in which you do not have a good faith belief as to the soundness of your argument.  Even if this plea of mine to your better nature doesn't work, you should also consider that losing a lawsuit can roll your own life down a very dark alley.

Here is a list of the elements of a good threat letter:

1.  Be calm and professional.  You might be convinced that the other side is composed of incompetent quasi-crooks, but telling them so won't get their sympathy.  Instead start by identifying yourself and then stating the reason you are writing.  Describe what happened step by step, chronologically, all leading up to your current position.  Use dates and whatever specifics you have.  If there are documents that support your argument, attach copies to your letter.

2.  State clearly what relief you want.  "Make good on this and I'll go away" is just an unspecific threat and you sound disorganized.  Instead try something like "If you'll take the product back and refund my money, this matter will be over quickly."  If you have consequential damages of any significance, list them as part of the recovery you expect.  As I said in the last post, consequential damages are those that never would have happened if there'd been no breach of the contractual agreement (for example, your kitchen caught fire because the product malfunctioned, which also caused medical expenses, more consequential damages).  

Keep your demands as reasonable as you can.  Piling on minor things makes you sound unrealistic.  But if the other side has committed fraud (see last post), you should also mention that you will pursue that theory in any subsequent litigation, and that courts often award punitive damages and attorney fees if the defendant is guilty of such outrageous conduct.  If what happened violated your state's Consumer Law (check this via Google using that label plus your state's name), specify that, citing to the statute (by statute number if you have it) and quoting the specific language of the statute you feel has been violated.  Here is a sample list from Ohio's Consumer Sales Practices Act:

§1345.02 Unfair or deceptive consumer sales practices prohibited.

(A) No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.

(B) Without limiting the scope of division (A) of this section, the act or practice of a supplier in representing any of the following is deceptive:


(1) That the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have;
(2) That the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not;
(3) That the subject of a consumer transaction is new, or unused, if it is not;
(4) That the subject of a consumer transaction is available to the consumer for a reason that does not exist;
(5) That the subject of a consumer transaction has been supplied in accordance with a previous representation, if it has not, except that the act of a supplier in furnishing similar merchandise of equal or greater value as a good faith substitute does not violate this section;
(6) That the subject of a consumer transaction will be supplied in greater quantity than the supplier intends;
(7) That replacement or repair is needed, if it is not;
(8) That a specific price advantage exists, if it does not;
(9) That the supplier has a sponsorship, approval, or affiliation that the supplier does not have;
(10) That a consumer transaction involves or does not involve a warranty, a disclaimer of warranties or other rights, remedies, or obligations if the representation is false.

If you are yourself a lawyer, cite to whatever statutes and cases and regulations support your theory, using details.  This will likely intimidate the recipient who will want to avoid having to hire a lawyer, and if the recipient does take your letter to a lawyer the latter will now have to do legal research (which most lawyer avoid like the measles—"Can't you just fix the car?")

3.  Specify what you will do next if the letter's recipient doesn't solve the problem immediately (give the recipient a deadline, say ten days, in which to act).  Be detailed as to what will happen if the deadline isn't met ("Be advised that unless this matter is settled to my satisfaction within ten days of your receipt of this letter, I will file suit in the _______ County [or City] Small Claims Court, asking for damages in the amount of $______, plus court costs").  In the last post I suggested downloading the Complaint from the Small Claims Court's website and filling it in, and then attaching it to your threat letter ("Attached is the Complaint I will file unless I hear from you shortly").  Holding an actual Complaint that names someone as the "Defendant" is shocking—people don't want that label pinned to their name.

4.  The Escape Clause.  In a new paragraph of your letter state as calmly and specifically as you can what steps the recipient can take to avoid of all this.  Use language like this:  "I hope we can resolve this problem short of formal legal action—all I really want is ­­­­­­­­­­­­­­­­­___________ ["a product that works" or "my money back" or whatever]".  Get their mind fixed on helping you and not having to do something as strange as going to some court and hash this out.

5.  Then sign your name with a standard closing.  I don't use "Yours truly" (which is misleading in that I am not "theirs" in any way, much less "truly"), preferring something closer to reality such as "Sincerely."  Make sure all contact information is included in your letter.

Finally, let me mention that if the recipient subsequently calls you up or sends a reply letter challenging you ("Is that a threat?"), you must be ready to ignore the natural human reaction of "Oh, no, I didn't mean it that way."  Instead, hold your ground.  "Of course, it's a threat!  Weren't you paying attention?  Life as you know it is about to get much worse unless you satisfy me immediately."  Don't let the other side bully you.  Having said that, compromise is also a good thing, and proposing one that allows the recipient to save face is often the right solution to the legal dilemma that led to you sending your threat letter in the first place.


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Related Posts:
"I Threaten To Sure Apple Over an iPad Cover," April 8, 2011
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011
"What Non-Lawyers Should Know About Warranties," October 11, 2011
"Legal Terms You Should Know," September 11, 2013
"How To Respond to a Legal Threat," March 29, 2014
“A Guide to the Best of My Blog,” April 29, 2013

Tuesday, October 11, 2011

What Non-Lawyers Should Know About Warranties

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I've taught the law of warranties at the law school level for over forty years, and have written a number of books on point.  I thought I'd create a short version of the law for blog readers who are not lawyers, with the warning that in an actual case (unless you are going to handle little problems in a Small Claims Court) you should certainly consult a lawyer.

Sale of Homes.  There is no national unity for the law of warranties in the sale of homes.  Some states have special statutes about this, while others either use the Uniform Commercial Code (see below) by analogy or create an "implied warranty of workmanlike construction" in creating a remedy for defective homes.  For problems with defective homes you should certainly see a lawyer if you can't settle the matter with the seller.

Sale of Goods.  For the sale of goods (anything moveable, including animals and food), almost all states (Louisiana is the exception, but it has similar warranties adopted from the Napoleonic Code) use the Uniform Commercial Code [UCC] for statutory guidance in the law.  The text of the statute (but not its very helpful Official Comments) can be found at http://www.law.cornell.edu/ucc/2/article2.htm.  Let's start with the types of warranties the UCC regulates.


Express Warranties.  Of course the seller of the goods might provide a written warranty (either a formal one drawn up by lawyers, or simply something stated in a letter or email).  That's a written express warranty, and UCC section 2-313 requires the seller to live up to what is said.  But warranties can be oral (the seller in the sales pitch says "This car will last you six months without any need for repairs") or even created by actions ("Look at this model" or the photo of the food printed in the menu).  The seller might try and take away these express warranties by contractual language ("This is the entire agreement, and the seller has made no other representations"), but particularly in consumer contracts are the courts leery of enforcing such "boilerplate" (i.e, standard blather) clauses that the buyer did not necessarily agree to.  Indeed, the UCC provides that express warranties, once made, cannot be disclaimed; section 2-316(1).  The way for sellers to avoid liability for express warranties is not to make them in the first place.  Many states have Consumer Sales Practices Laws forbidding misleading statements about warranties, and creating a cause of action in favor of injured consumers that includes attorney fees and punitive damages.  I once bought an expensive set of earphones from a seller who was lavish in praise of the quality of the product.  When I got the phones home they wouldn't do all the things promised, so I took them back and asked for a refund.  "I don't warrant my products," the manager told me.  "You may not think you do," I replied, "but when you opened your mouth and said thus and so about these earphones you created express warranties under section 2-313 of the Uniform Commercial Code."  "Where is your receipt?" the manager demanded smugly.  "I don't have it any more," I responded, "but the Code doesn't require I have a receipt.  I do have to prove I bought it here, but I have both a cancelled check and a witness."  "Go away."  "Okay, but I'm going to immediately file a complaint against you in the Small Claims Court, and you will lose at trial, and then have to refund my money plus pay court costs (plus the fee of any attorney you hire), so you might as well deal with me now."  He did.

Implied Warranties.  Our law has always required sellers to live up the basics assumptions of any bargain by creating implied warranties that the product will do the expected task.  These warranties are "implied" because they are automatically part of the deal (imposed by the UCC) unless the seller or the circumstances does something to get rid of them.  There are two basic ones:

Merchantability.  The implied warranty of merchantability (strange name: "merchant" and "ability" tied together) is basically a warranty that the goods will perform their ordinary function; UCC section 2-314.  Say, for example, that you buy a sweater at a store and when you get it home it and wear it once it falls apart.  This sweater was not fit for its ordinary purpose and therefore breaches the warranty of merchantability.  When you think about it, the implied warranty is a huge warranty: it means the goods must work.  Federal law forbids its disclaimer in consumer transactions if the seller gave a written warranty [this is the federal Magnuson-Moss Warranty Act section 108], and the UCC disfavors its disclaimer in all cases unless the buyer is warned in language that actually uses the word "merchantability" so as to tell the buyer the warranty will not apply in this sale.  Buyers ought to be very suspicious if the seller disclaims the warranty of merchantability.  What?  The seller doesn't warrant the goods will work?

Fitness For a Particular Purpose.  If the buyer tells the seller prior to the sale of a particular purpose for which the buyer needs the goods ("I am about to try and climb Mt. Everest and need boots") and it's clear the buyer is relying on the seller's expertise to furnish suitable goods, an implied warranty of fitness for this particular purpose automatically arises unless the seller clearly disclaims it; UCC section 2-315.  So if you, the buyer, tell the seller why you want the goods and the seller suggests buying a certain product, the implied warranty of fitness for a particular purposes protects you if the goods can't hack it.

Fraud.  A quick note about fraud, which technically has nothing to do with the law of warranties.  Instead, fraud is the civil action for lying of any kind.  If someone makes a material misrepresentation (that's the lie, and it must be about something important to the deal) in the course of a sale (or any transaction), and means to deceive when the statement is made, any person who justifiably relies on the statement may sue for damages caused by the lie.  The TV salesperson says "This TV will receive a perfect signal from a satellite" when it is known to have major problems communicating with objects circling the planet, is committing fraud.  Fraud is  grounds for rescinding the sale and getting your money back.  Moreover, our courts have always been offended by those who make deliberate misstatements to mislead others, and sometimes will award punitive damages and attorney fees to punish such conduct.  State Consumer Sales Acts often also give such relief, and you should check online to see if your state has such a statute. 

Small Claims Courts.  For big sales transactions that go bad (the sale to the U.S. Army of weapons, for example) the usual courts are the appropriate place for a lawsuit.  But tiny consumer problems don't belong there unless a special consumer statute on point has been violated.  Instead use the internet to see if there's a Small Claims Court in your jurisdiction.  You can download the Complaint online and attach it to the threat letter you send to the seller of the defective product, threatening legal action unless the dispute is settled to your satisfaction.  In a Small Claims Court you don’t have to have an attorney (though you do have to pay the filing fee, which the website will list), and if you win you'll get back your damages (the cost of the product typically) plus any court costs (the filing fee).  Small Claims Courts are, as the name suggests, courts of limited jurisdiction.  In Ohio, for example, such courts can only hear cases where the amount in controversy is $3000 or less. 

Threat Letters.  In a the next post I'll talk about threat letters and how to write them.  For now, let me emphasize that it is unethical (and can get you sanctioned by the court) to threaten something you don't have a good faith belief in.  In future blogs I will also talk about remedies for breach of warranty, including the issue of consequential damages (the house that burns down because the TV malfunctions and causes a fire, or the hospital expenses for the victims of the conflagration).
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Related Posts:
" Update: Mortgage Foreclosure and Missing Notes," November 16, 2010
"I Threaten To Sure Apple Over an iPad Cover," April 8, 2011
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011
"How To Write and Effective Threat Letter," April 19, 2011
"Legal Terms You Should Know," September 11, 2013
“A Guide to the Best of My Blog,” April 29, 2013

Sunday, October 2, 2011

The Presumption of Heterosexuality and the Invisible Homosexual

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The presumption of heterosexuality is so strong that even where it's clear to anyone approaching the facts with an open mind that it's invalid, the presumption will often prevail.  Thus parents will blind themselves to the perfectly obvious homosexuality of one of their children (or at least pretend to not notice despite whatever nagging doubts trouble them when their heads touch their pillows at night).


Walt Whitman
This presumption has hugely benefited homosexuals for millennia, allowing them to hide in plain sight.  If challenged, said homosexuals need only affirm their "heterosexuality" and in most cases this lie will be readily believed.  Walt Whitman, for example, as part of his tremendous output wrote some wildly erotic homosexual poetry, but when the charge was made against him that he was gay, all he had to do was deny it, and most people (and even early biographers) believed him.  Never mind his documented romances with men.  One of the greatest poets of all time surely couldn't be "bent."


General Eisenhower
Sometimes heterosexuals have to face the truth.  When General Dwight Eisenhower was once ordered by his superiors to investigate the possibility of lesbians in the military, he called in his most trusted female officer and asked her to draw up a list of suspected lesbians under his command.  This woman officer was very conflicted as to what to do since she herself was a lesbian.  Finally she summoned up her courage and returned to Eisenhower's office as he was dictating a letter to his secretary.  "General," she told him, "if I have to draw up such a list I want you to know that my name will be at the top of it, and you'll lose the value of my services."  At this point the secretary interrupted by saying, "No it won't, because I'll have to type it and I'll put my name first."  At this, flabbergasted, Ike dropped the whole matter and went back to military matters he understood.  [This is not to say he was any less homophobic than the rest of society in the 1950s; when Eisenhower became President he signed an Executive Order forbidding the hiring of homosexuals by the federal government.]

John Switzer
I was reminded of all this by a column I read in May in the Columbus Dispatch by John Switzer.  He's the newspaper's retired Weather Columnist, and he occasionally writes folksy pieces about nature or local events in central Ohio.  I've enjoyed his musings for years, and was very interested when on May 22, 2011, he wrote a Memorial Day piece about two graves in Pleasant Cemetery in Madison County.  One is of a Confederate soldier from the Civil War named Frank Chick who fought under the famous cavalry General Nathan Bedford Forrest ("be there first with the most"), both of them from Tennessee.  The other is Nicholas Brill, an Ohio native and Union Army soldier who encountered Chick when the latter was a prisoner Brill was guarding at a camp in Columbus, Ohio, during the war.  They were not yet 20 at first meeting, but when the war ended Chick moved into a cabin Brill owned near Mount Sterling, Ohio.  The two lived together until they died in 1922 and 1923 respectively.  Known locally as "the turkey men," they were buried next to each other in an area "separated a little bit from the other graves" (why would that be, do you think?).  In his column contemplating this interesting history, Switzer speculates that this is "a nice story about how two men who were once sworn enemies came to rest in peace side by side throughout eternity."

I immediately sent an email to the address Mr. Switzer conveniently provided at the end of his column.  Here it is:

Mr. Switzer:

I have long enjoyed your splendid columns.

Today's column about the Confederate prisoner and his guard who became lifelong friends and lived together—the "turkey men"—struck a chord with me. You say they "somehow became fast friends," and I may have an explanation for that. I'm an aging gay activist here in Columbus, now retired, and it struck me that there's a good chance these men fell in love and became partners. Is there any hint of that? Were either married? Gay couples know how to hide and have done so for centuries.

My best to you.

Douglas Whaley




Mr. Switzer never replied.  Obviously it hadn't occurred to him that the "turkey men" could have been lifelong gay partners, but that's as likely—even more probable—an explanation as any other.  Considered as a romance it's even a better story than two straight bachelors who just happened to live together for over 50 years.  Perhaps the reason I received no reply is that this possibility embarrassed or offended Mr. Switzer, but I'll never know.  The presumption of heterosexuality, still quite strong, kept him from seeing a conclusion that in 2011 should occur to lots of people, including straight people, who are beginning to wake up to what's been going on for a very long time.

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