Brainstorm by Richard Dooling
Web posted on: Thursday, May 07, 1998 10:09:53 AM EDT
(CNN) -- Attorney Joe Watson had never been to court except to be sworn in. He's a Webhead. But then he gets chosen to defend James Whitlow, a lowlife with a long rap sheet accused of a double hate crime. When Watson stubbornly decides not to plead out his client, he is soon evicted from his comfortable life: His boss fires him, his wife leaves him and takes the children, and the Whitlow case begins to consume all of his time.
"The beheadings are almost identical," said Joe Watson, placing his memo on
the walnut expanse of Arthur Mahoney's worktable. Watson resisted the
impulse to retrieve the memo on beheadings from the senior partner's elbow
and check it again for typos. Arthur Mahoney -- silver-haired mentor and the
partner in charge of young Watson's career at Stern, Pale & Covin -- had been
less than enthusiastic about the last two memos Watson had done for him, and
Watson feared that another unsatisfying piece of work might jeopardize the
comfortable, protected niche he'd made for himself as research and writing
factotum to the head of the litigation department.
"Almost identical?" asked Arthur. He set aside the stack of correspondence and
enclosures he had been reviewing, swiveled in his recliner, and attended to his
young associate and the press of the business at hand: decapitations.
"Yes," said Watson, panicking as he suddenly realized he had forgotten to use
the spell checker himself (instead of just having his secretary do it), so he could
activate the homophone feature of the firm's word processing software and
double-check for words that were spelled correctly but were misused, like
discrete instead of discreet, or principle instead of principal. He'd used
stationery instead of stationary in the last memo, and Arthur had filled the
margins with a handwritten screed on the importance of precision.
"Is this something more than look and feel?" asked Arthur. "We've seen so
many of these damn beheadings. And you associates tend to make wild, very
serious, highly theoretical allegations without thinking about the weeks of
courtroom labor you'll need to prove them. How do you distinguish one
beheading from another? I'll have to rely on young people to teach me about
decapitations. We didn't have such grisly spectacles in my day."
"Both heads are severed at the third cervical vertebra -- right here," said
Watson, running a finger across the back of his own neck by way of
"So?" said Arthur. "Seems a likely enough site."
"Similar-sounding crunches occur when the blades strike the vertebra. The
arteries and veins sprout like seaweed and spurt blood everywhere. I'm having
the splatter patterns analyzed to be sure, but the splotches look identical. The
heads topple forward and then roll down stairs -- three stairs, to be exact, with
three kerplunks. The animated victims turn
their headless stumps toward the gamer and squirt blood through the windpipes
onto the screen. The heads themselves are mounted on pikes, and in both cases
the heads say, "Ouch, that smarts!" in a kind of cartoon voice, at the instant of
Arthur made a small steeple of his index fingers and tapped it against his
pursed lips. "Joseph," he said with a benevolent smile, "I can imagine myself
arguing to a federal district judge that one beheading is identical to another. I
can imagine myself arguing that one beheading is wholly distinguishable from
some other beheading which has been served
up by way of comparison, but I'm straining somewhat to imagine myself
arguing that two beheadings are almost identical. Instead of issuing general
proclamations of their near identity, perhaps your analysis could commence
with a succinct delineation of the difference or differences, however slight,
between the two beheadings. I'll speak plainly: What is keeping our almost
identical beheadings from becoming completely identical beheadings?"
"A halberd and a scimitar, sir," said Watson. "A halberd," said Arthur.
"It's kind of a combination poleax and pike mounted on a six-foot handle,"
Watson explained. "You've probably seen knights and beefeaters and whatnot
holding them. Or maybe if you've been to a museum you've seen them leaning
against suits of armor. The Met in New York has quite a collection."
"I know what a halberd is," said Arthur.
"I knew you would," said Watson, deciding not to mention that he had
exhaustively researched the subject of halberds to the tune of six or seven
billable hours, had viewed the Met's collection of halberds on-line at
http://www.nycmet.com/medieval/halberds , and had submitted his time under
the heading "Research Look-and-Feel Issues Involving Ancillary Armaments,
"In CarnageMaster, the Crusader's head is cut off by a Maltese knight with a
halberd, but in Greek SlaughterHouse, Medusa is beheaded by Perseus, who
uses a blazing scimitar."
"And a polished shield for a mirror?" Arthur asked eagerly.
"No," said Watson, "I don't think our clients are up on their Greek mythology.
Perseus just kind of looks right at Medusa and whops off her head with a
scimitar he must have stolen from a vanquished Turk after doing a little time
traveling. Now, you're probably thinking, That's
different -- Perseus and his scimitar are different from a Maltese knight with a
halberd. But when the weapons are displayed later, the blood drips in precisely
the same patterns from the blades to the same reticulated stone floor of an
identical castle -- the Castle of Skulls -- which was designed by our client's
"Sounds like more than a coincidence," said Arthur, "but is this copyright
infringement? Something more than look and feel? Has CarnageMaster stolen
the story of Greek SlaughterHouse? The characters?" "CarnageMaster has
stolen the soul of Greek SlaughterHouse," Watson said.
"Hmmm," said Arthur. "So we have these 'almost identical' beheadings, and we
have the 'very similar' dungeon torture sessions, followed by the 'almost
"That's right," said Watson. "Don't forget the nearly identical large-breasted
blondes wearing see-through chain mail shackled to ringbolts and stones inside
pink, secret chambers. In both games, male assailants brandish flesh-colored
broadswords at them."
"We need more," said Arthur. "Subliminal Solutions and the SlaughterHouse
team want to be absolutely certain of their position before amending their
complaint and adding a request for punitive damages. We need to be sure this is
all -- what are the magic words? -- 'well
grounded in fact and warranted by existing law,' or we risk Rule Eleven
sanctions. More research is indicated."
"Yes, sir," said Watson.
Arthur took a call. Watson gathered his papers and headed out, back to his
office, a windowless cubicle one fourth the size of Arthur's spread. Arthur had
the big office, the ancient measure of partner power, but he didn't have a 600
megahertz Pentium VI 3-D system with a subwoofer and a twenty-eight-inch
flat-panel display, which the firm had installed in Watson's office to assist him
in analyzing copyright litigation claims for the firm's software clientele.
Arthur didn't 'do' computers, had no use for them. He was an example of that
dying breed of lawyer who still pined for the days when former fraternity
brothers and family friends paid dearly for sage advice and legal guidance. The
old guy had barely
an inkling that modern corporate clients were no longer interested in sage
advice (they could get that from the in-house lawyers they had on staff). They
had all the family friends and wise men they needed; they came to Stern, Pale
looking for armies of ruthless litigators and
information dominance, so they could massacre their opponents in court.
In the twilight of his august career, Arthur was still dispensing advice and
memos to clients, but these days those memos and that advice consisted of
information that had been winnowed, gathered, and compressed by associates
using powerful computers and search
technologies. For young lawyers, like Joe, legal prowess increasingly depended
on computer expertise, which meant that one had to curry favor and cultivate
relationships not only with senior partners, who played real golf, but also with
the management information systems (MIS) people, who played 3-D Microsoft
Golf and who controlled access to the
machines and the software a young associate needed for optimum research
For instance, Arthur barely knew the head of MIS -- a shapeless, rumpled
dweeb, affectionately known as Inspector Digit -- who was Watson's buddy and
primarily responsible for getting Watson into his high-end equipment. Digit
was, in the language of the trade, a guy with lots of MIPS but no I/O. Plenty of
brainpower, but subject to trap errors, freeze-ups, and system hangs when it
came to interacting with humans. When Digit opened his mouth, argot and
acronyms, techno-linguistics and programming instruction sets came out. Most
lawyers said only "Uh-huh" and "Fix it" to Digit, which was why Digit valued
Watson, in turn, looked to Digit for the very latest in beta browsers and
Officially, the lawyers were allowed to use only firm-issued desktop PCs
(referred to by the information elite as 'beige toasters') that were hooked to the
network and ran five-year-old firm-approved software (hopelessly dated stuff,
referred to as 'stone knives and bearskins');
third-party programs of any kind were strictly forbidden, for obvious security
reasons. But unofficially, Inspector Digit and the MIS people gave Watson and
a few other silicon turbonerds high-end machines and let them deploy and test
the latest Web browsers, agents, robots, and legal systems software. It was the
best way to test the stuff before
implementing it throughout the network. Watson and the other tech-headed
lawyers were always clustergeeking around the new machines, running beta
software, crashing supposedly crashproof software, or cycle crunching the
networks on purpose, so that the MIS people would order them stand-alone
workstations. Also known as propeller heads, spods, and terminal junkies, these
associates knew the antiviral and security drills, so there was no point in
limiting their use of third-party programs. Besides, restricting the serious
user's choice of software is the equivalent of thought control.
Let Arthur have a big office, thought Watson -- I'll take the workstation with
two gigabytes of RAM and the beta software.
His screen came back to life when he moved the trackball, and Watson returned
to the Castle of Skulls, ready for another thirty or forty billable hours of
dismembering 3-D medieval warlords.
A blinking light on his Personal Information Manager (PIM) indicated that he
had external voice mail waiting. He pressed the button. "This is Judge Stang's
clerk, Federal District Court, Eastern District of Missouri, calling Joseph T.
Watson, attorney number 76892. Pursuant to the court's local rules, Judge
Stang has appointed you to represent an
indigent defendant in Case Number 2002-CR-30084-WJS. For more
information about the case and for a copy of the information and the bill of
particulars, please call the court at . . ."
His appointed case! In the Eastern District of Missouri (St. Louis) and in many
other federal districts, the district courts have a long-standing tradition of
assigning every new lawyer admitted to practice in the district a pro bono case,
usually an indigent criminal or civil rights plaintiff who, for whatever reason,
cannot be represented by the federal public defender. It's a rite of passage for
new lawyers who don't know which end is up in a drug conspiracy trial,
and it's the bane of big law firms, whose partners lose hundreds of billable
hours' worth of new associate time to the defense of guilty criminals or the
filing of often frivolous prisoners'-rights or discrimination suits.
Watson knew he was due for his appointed case, because three of his classmates
who were sworn in with him had already received theirs. He'd had secret hopes
for a criminal case, because back in law school -- before becoming husband to
his wife, Sandra, and father and provider for their children, Sheila and
Benjy -- he had aspired to being William Kunstler,
Gerry Spence, or Clarence Darrow. A legal warrior and protector of
downtrodden outcasts. Instead, he became an overpaid silk-stockinged Westlaw
geek for the partners of Stern, Pale. A criminal case might satisfy some of his
former cravings for glory. But big criminal cases usually went to the federal
public defender. Besides, a federal criminal appointment would tear some
ragged, deep valleys in Watson's 180-day moving average of fifty billable
hours a week, because all of the appointed work would be nonbillable. In his
day, Clarence Darrow probably didn't turn in time sheets to the management
committee, or answer to the wife and kids when he passed on the family
vacation and took a case for no pay. Or if Clarence answered to a wife, she
probably didn't have Sandra's withering contempt for professional frolics and
detours -- like defending guilty criminals -- that would do nothing to advance the
welfare of their traditional family.
He called Judge Stang's clerk and exchanged pleasantries with a pleasant young
woman. He patiently waited for her to tell him he had been assigned a nice
Title VII employment discrimination case, an inmate wanting his sentence
corrected from 580 years to probation, or a Social Security matter -- maybe
helping a destitute widow make a claim for benefits.
"It's a murder case," the woman said pleasantly.
''Murder?'' Watson choked. It was criminal, all right -- beyond his wildest
dreams, verging on his wildest nightmares. "Since when do they have murder
trials in federal court?"
"Let's see here," she said. "Looks like the murder occurred on an army base, in
the on-base housing where the defendant was staying with his wife, who is in
the reserves. That's military reservation, meaning it's federal jurisdiction,
which puts it in U.S. district court. And the U.S. attorney is seeking the death
penalty under the Hate Crime Motivation or Vulnerable Victim provisions of
the new federal sentencing guidelines. It's the federal version of all those state
"It's a hate crime?" asked Watson.
"Why don't you read the Complaint and Affidavit? It probably came through
on your fax machine a few minutes ago. It's murder, and the government is
saying" -- Watson heard pages riffling -- " here we are, paragraph seven: 'The
defendant intentionally selected his victim as the object of the offense because
of the actual or perceived disability of the victimdeafness.' "
"Deafness? And they're saying what?" Watson asked, amazed that there was
such a law and doubly amazed that prosecutors actually used it. "You mean
they're saying he shot a deaf guy because he hates deaf people?"
"I guess so," said the clerk. "Hold it. It also says " -- more riffling -- " paragraph
eight: 'The defendant intentionally selected his victim as the object of the
offense because of the actual or perceived race of the
victim -- African-American.' The victim must have been a deaf
Murder! Joseph T. Watson, Esq., recent graduate of Ignatius University Law
School and winner of the Computerized Legal Research & Writing Award, was
the attorney of record for a hate criminal accused of murder! He panicked and
did the noble thing, which was to argue his own incompetence, taking the
defensible position that he was not a real lawyer.
"This must be a mistake," he said. "I'm not a real lawyer. I do computerized
legal research. I'm a Webhead and Westlaw expert. I'm not an officer of the
court. I've never even been to court, except to get sworn in. I spend roughly
eleven hours a day foraging in computerized
legal databases retrieving precedent -- cases that support the legal theories of
senior partners who pay me handsomely for my skills." Even as he was
attempting to beg off out of fear, he was tempted -- exhilarated even -- by the
prospect of doing
something -- anything -- besides fifty hours of legal research per week, every
week. All he had had to say was "Yes, ma'am," and he could play at being a
real lawyer, a trial lawyer, a criminal defense lawyer. But a first-year associate
taking on a murder case for the sake of trial experience was like a med student
dabbling in a little brain surgery.
"It says here you do discrimination work, Title VII cases, and so on," said the
"Employment discrimination," said Watson. "I've done computerized legal
research and written legal memoranda for partners who defend large
employers who have been unjustly sued by disgruntled employees, but -- "
"Judge Stang said these bias crimes are a lot like discrimination cases," said the
clerk. "Think about it. Killing somebody is the ultimate form of
discrimination. You shouldn't have any trouble."
"But I've never uttered word one in a courtroom!"
"Which puts you in the same boat with all the other young lawyers who get
appointed every day," said the clerk. "Besides, you work at Stern, Pale. It's the
best firm in town. I'm sure you'll do a better job than most of the appointed
lawyers we see down here."
Again, the prospect of a real case -- his very own case! -- beckoned, but he also
vividly imagined his normal workload, his billable hours, and his performance
profile all ravaged by a murder trial in which he would be representing a
nonpaying client. What would Clarence Darrow do? Selflessly think about the
poor client, probably.
"I am not a trial lawyer," he continued, wondering how much trouble he could
cause the government by filing a dozen vigorous, well-aimed pretrial motions.
"Stern, Pale hired me because I have a certain facility for answering essay
questions on law school exams."
"I'm looking at the judge's notes," said the clerk. "He says you wrote a law
review article called 'Are Hate Crimes Thought Crimes?' in the Ignatius
University law journal." Watson was flattered that Judge Stang had noticed his
student comment but alarmed that anyone would think it qualified him to
handle a murder case.
"That's me," he said. "But that's just footnotes, research, and so on.
That's not murder!"
The clerk sighed. "The case has been assigned to you. I don't know if there's
such a thing as a Rule Forty-nine Motion to Withdraw Because of Your Own
Incompetence, and I don't think your client can claim ineffective assistance of
counsel until you lose the case, but if you
want to file something, see Judge Stang at informal matters after the
arraignment. I'd wear a helmet if I were you."
The clerk added that Watson could watch Channel 5 Live at ten if he wanted to
know more about the case, that newspaper people were calling, that Lawyers
for Deaf Americans, lawyers for the National Organization for Women,
NAACP lawyers, civil rights attorneys, and hate crime experts were all calling
for information about the case, so maybe he would be able to fob it off on an
attorney for a special interest group or on some other eager young defense
lawyer willing to work for nothing while building his or her reputation.
"This is an academic discussion, however," said the clerk. "You've been
appointed. I cant unappoint you. Only the judge can do that. Do you know
Judge Stang?" Legends and war stories came immediately to Watson's mind.
The time Judge Stang -- a cantankerous graduate of the Roy Bean school of
jurisprudence -- ordered an attorney to put a bag over his client's head, because
the judge was sick of the man's supercilious grin. The time he
ordered a federal marshal to handcuff two squabbling attorneys together and
lock them in a holding cell. The time he flew into a blind rage (later diagnosed
as furor juridicus, a species of judicial seizure activity) and attacked thirty
lawyers with the courtroom's iron flagpole
because they were unable to settle EPA Superfund litigation after three years of
He had more nicknames than any other judge. Some called him Ivan the
Terrible, others, Blackjack Stang; still others referred to him as the Grand
Inquisitor, Darth Vader, Beelzebub, the Gowned Avenger, or the Prince of
"I'll tell you this," she said, "if you try to withdraw from an appointed case,
and your only excuse is that you lack trial experience, Judge Stang will fine
you for contempt, and then he'll cut your ears off with a butter knife."
Copyrightę 1998 by Richard Dooling. All rights reserved
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