Friday, November 17, 2017

Mapping Mistakes

In his book Maphead, Jeopardy champion / Mormon brainiac Ken Jennings writes about his lifelong obsession with maps. Other map-lovers will recognize their own childhood in his descriptions of pouring over atlas pages, filling shoeboxes with inserts from National Geographic magazine, and charting imaginary worlds. Maps invite us to a world beyond home. But as Jennings observes, “a good map isn’t just a useful representation of a place; it’s also a beautiful system in and of itself.”

Like all systems, maps are necessarily incomplete. A “perfect” globe would require a full-scale replica of the Earth, measuring an impractical 7,900 miles in diameter from pole to pole. Instead, each map represents a mapmaker’s unique choice of scope, scale, and focus.

Maps are also ephemeral – the represented geography changes even before the ink on a map is dry. Old maps showing California as an island are quaint. Smartphone apps that neglect to mention the recent closure of your freeway exit are not. My current annoyance:  the disconnect between the border wait times on Washington State Department of Transportation website, and the actual line of cars at the Peace Arch crossing.

The walls of Plato’s cave are covered in maps. Maps embody the paradox of every model, and indeed of knowledge itself:  maps are not reality, but they aspire to represent some fragment of the world out there beyond our sight. Good maps are “reality-based,” as progressives innocently called ourselves before the November 2016 election revealed the other side’s arguments are based on something entirely different.

Each map illuminates a specific real landscape. The map can be used for various stated, unstated, and unanticipated purposes. On occasion, mapmakers are drafted as propagandists, using map labels to take sides on real world issues like the identity of the Falkland and/or Malvinas Islands. On some level every text is fraught, of course, even harmless-appearing maps and charts. [Ed. Note: “chart” is sailorspeak for “map.”] But most maps aim to teach and delight.

Long after explorers filled in all their formerly blank spaces, even well-intended maps have their limits. We gaze at the world through a glass darkly. Yet we do not abandon our search for meaning. As I recently wrote in “Driving Brother Dallin” about the Mormons’ erroneous guide to human sexuality, our response to flawed maps should be the same as Galileo’s rejoinder when the Inquisition insisted the sun revolves around the earth: experience.

When I was a kid, summers were filled with disaster movies. We dreamt of The Big One – the inevitable earthquake along the San Andreas fault that would toss half of California into the ocean. Good riddance. (Pacific Northwesters are smugly anti-Californication.)

Then the New Yorker ran an article a couple of years ago about “The Really Big One,” the earthquake that will devastate Seattle, Portland, and Vancouver any day now. Apparently, our “Cascadia subduction zone” is poised to trigger a quake. A few semi-active volcanoes are also ready to pile on. The end is nigh.

Meanwhile, the local geology is perfectly suited to sustain maximum damage. Like Mexico City, Seattle was built on top of soil that’s surrounded by rocks, in the center of a rigid bowl that will bounce aftershocks back and forth like a microwave oven.

The problem started with the glaciers’ visit during the last Ice Age. As they retreated, the glaciers dug deep fjords into bedrock, leaving features like the Puget Sound. The thin layer of soil above the unyielding glacial till is much weaker, leaving us susceptible to mudslides, and amplifying the impact of our upcoming big earthquake. 

But wait, there’s more. Like Hollywood starlets, Seattle’s founding fathers were not satisfied with what nature gave them. So they drained acres of former marshland and extended the original shoreline. During our last major earthquake in 2001, most of the damage occurred in Pioneer Square, Sodo, and other neighborhoods with old buildings erected on unstable “fill.” Fill consists of uncompacted soil and debris generated from razing hills and digging holes for other construction sites. Modern land use attorneys can only dream of the impossible permits and lucrative environmental impact statements that would be required for such a massive earthscaping project today.

I’ve worked on several lawsuits with maps at their center. Only one involved a visit to the antique map collection at Seattle Public Library.

In my first case to go before a jury, the plaintiffs owned a small Seattle business next to a very large construction site. The contractor used temporary “dewatering wells” to lower the water table and dry out the site during construction, then installed a pump to permanently maintain the lowered water level as part of the new building’s drainage system. Unfortunately, the soil was an example of the uncompacted fill used to extend the Seattle shoreline a century ago. The powerful pumps sucked all the water from under our clients’ property, causing one end of the building to drop precipitously.

Plaintiffs sued numerous defendants involved in the construction project. Another lawyer from our firm originally represented the plaintiffs, but he left for other employment just weeks before trial, leaving numerous smoldering fires. The firm asked me to come and handle various pretrial tasks. I went through the boxes of documents produced in discovery to identify potential trial exhibits, and to prepare for depositions of various experts in geology and engineering. (I previously wrote about how the firm originally representing Ogden Murphy gaslit me when I tried to examine my first witness at trial.) 

The map at the top of this post is from Baist’s 1908 Real Estate Atlas of Seattle. The atlas contains similar plates covering the whole city, with color coding showing whether each building is made of wood, brick, or stone. Mr. Baist regularly published updated editions of his Real Estate Atlas. To untangle the history of the soil at our disputed construction site, I went to the library, and compared the changing contours of this particular neighborhood in each successive atlas from the early 20th century.

The Baist real estate survey map pictured above did not come from the library, however. I bought it in an antique store twenty-five years ago because it pictured my Capitol Hill neighborhood. You can see my first fabulous gay house, at 309 Tenth Avenue, as well as my friend Jamie’s even more fabulous gay house on Thomas and 14th. Many other locations on the Capitol Hill map have changed significantly in the last century. The freeway opened, the high school closed, and Lincoln Park was re-named “Cal Anderson Park” in honor of Washington’s first openly gay politician.

Examining boxes of documents at the beginning of a case is my favorite phase of litigation (other than coming in at the end to handle the appeal). As you learn about the case, you get to orient yourself in a whole new area of law:  Subsurface water rights! Adjoining property owner obligations! You figure out the cast of characters:  Owner! Contractor! Subcontractor! Architect! Structural Engineer! Geo-engineer! You read emails, contacts, letters, even maps. It’s like someone dumped out several boxes of puzzle pieces from multiple abstract pictures, with lots of pieces missing, and started a stopwatch. Fun. 

I’ve always enjoyed complex mental challenges. But my recent experience with PTSD has revealed another reason for my attraction to this early phase in contrast to other stages of litigation. When I pore through raw case files, I want to learn what actually happened – not just to assess what the admissible evidence is likely to show at trial, or how I might be able to plausibly spin some random scrap of paper to score a rhetorical point. Client wishes, confirmation bias, or other filters will eventually cloud my vision and values. For now, let me sort through puzzle pieces and indulge my innocent thirst for the truth.

In my dewatering case long ago, I was the first person from outside the construction project to examine the vast documentary record. I had the luxury of scrutinizing contemporaneous files produced years later by each of the various litigants. I may be the first person to put all the pieces together and figure out what happened:

In the project’s original design, the water pump was supposed to be installed on the other side of the new building. The geo-engineers and other experts analyzed the impact of the proposed dewatering volume, and concluded it would not affect neighboring properties.

After construction began, the project owners decided they needed to reconfigure some storage space on the garage level. Some flunky at the architects’ office drafted blueprints reflecting the new arrangement. To accommodate the change order, the architect re-drew the dewatering pump on the other side of the building, just a few feet from my clients’ property.  No one noticed until too late.

Ironically, the architect firm was the only defendant who had already managed to wriggle out of the case before I arrived. After a frustrating trial, the jury let most of the remaining players off the hook, but tagged the building owner for harming the neighboring property. Plaintiffs had already gone out of business. The building owner’s insurance ended up paying the six-figure verdict, which was a small fraction of the amount everyone spent on attorney’s fees. As often happens in litigation, no one won.

Sometimes in litigation you don’t see important puzzle pieces until it’s too late. My lawsuit against the private investigators at Ogden Murphy Wallace, Seattle’s sleaziest bottom-feeding law firm®,” challenges the scope and independence of Defendants’ investigation into my complaint of sexual orientation discrimination at the Washington Attorney General’s Office. Rather than address the pattern of homophobia I identified in my complaint, Ogden Murphy’s investigation report instead focused on a separate complaint by my supervisor about conduct related to my disability that occurred during an incident months later.  (I raised my voice when she accused me of faking my disability.) Just two years before, taxpayers paid the same investigator to conduct a similar bait-and-switch attack on another distinguished public servant, Judge Patricia Petersen.

During party discovery months ago, I asked for and supposedly received Ogden Murphy’s entire file from the Leishman/AGO investigation. Nevertheless, defendants’ sleazy lawyers somehow managed to overlook a small number of particularly incriminating emails, which they finally produced under duress in October.

For example, in a March 16, 2016 email to the AGO, Patrick Pearce – the Ogden Murphy partner hired by the State to investigate my sexual orientation discrimination complaint – confirmed my understanding that the “scope of investigation” was limited to “discrimination based on orientation.”

In the same email, however, Pearce referred to his introductory telephone conversation about his assignment with representative the AGO the week before. No one told me Ogden Murphy was actually conducting a secret investigation into alleged “conduct violations regarding interactions with a co-worker.” If they had, my employment attorney would have pointed out what they were doing was illegal.1

1The New York Times recently reported that the two fatal crashes of Boeing's flagship 737 MAX resulted from a similar failure to consider the consequences of a small change Boeing made during the design process.  

I recognized two of the three recipients of Pearce’s email. Kim Siebs was the Human Resource Consultant coordinating the AGO’s response to my sexual orientation discrimination complaint. Kari Hanson was the AGO employment attorney assigned to handle the dispute about my accommodation request and performance evaluation. Hanson is the AGO representative who told my disability attorney she wouldn’t respond to any of her inquiries until after Ogden Murphy finished its investigation into my separate sexual orientation complaint. Instead, the AGO fired me as soon as it received Ogden Murphy’s character-assassinating report.

Pearce’s March 2016 email refers to a third recipient: “” I learned his identity from another belatedly produced email, this one setting up the secret planning meeting between the AGO and Ogden Murphy. He is Shane Esquibel.

Esquibel’s role in my story is limited to a brief but important cameo. Sorta like Dame Judy Dench, who won an Oscar for her twelve-minute turn as Queen Elizabeth I in Shakespeare in Love. Esquibel’s name doesn’t appear before the March 2016 meeting and emails that set Ogden Murphy’s hackwork in motion. He then disappears from the narrative immediately afterwards, replaced by his obviously useless subordinate Kari Hanson. Nevertheless, like the anonymous architect who moved the dewatering pump across the construction site without anyone thinking through the implications of the change, Esquibel is responsible for setting Ogden Murphy, the AGO, and myself on our course to disaster.

So who is Shane Esquibel?

In March 2016, Esquibel was the Chief of the AGO’s Employment & Labor Division. Division Chiefs are the AGO’s top lawyer in each major substantive area of the law. Only Attorney General Bob Ferguson and his six Deputy Attorneys General rank higher in the 550-lawyer bureaucracy. Ironically, that means Esquibel was the State’s senior employment attorney.

As I have written elsewhere, various systemic problems with state government have left the Washington Attorney General’s Office seriously underfunded and understaffed. Malpractice and incompetence is embarrassingly pervasive.  

Usually in an organization that is large enough to have a team of dedicated employment attorneys, you would expect your them to be able to handle routine tasks like investigating discrimination complaints, engaging in good faith in the interactive disability accommodation process required by the ADA, and smoothly easing out an employee who isn’t considered a good “fit.” With the State of Washington, however, no one should be shocked to learn the AGO’s supposed employment law expert was the one who exposed the State to yet another six-figure wrongful termination settlement. 

In conducting research for this essay, I discovered two other interesting facts about Shane Esquibel.

First, as is so often the case with entrenched bureaucracies, Esquibel has failed upward. He is no longer the AGO’s Labor & Employment Division Chief. Instead, he is now the AGO’s Chief Deputy. That means Esquibel is the State of Washington’s second-ranking lawyer, reporting to elected Attorney General Bob Ferguson.

I learned about Equibel’s promotion from a news article he was quoted in, under the headline “Oso mudslide case spurs reform at Attorney General’s Office.” In March 2014, a massive mudslide north of Seattle killed 43 people and resulted in 19 property destruction lawsuits. Many other defendants shared responsibility for the disaster. But according to the article, “State attorneys settled when it became clear the failure to preserve documents heightened the legal risks.” In particular, the judge ruled jurors should consider the AGO’s own “role in a secret plan to destroy” incriminating emails exchanged between the State’s lawyers and their outside experts.  [Ed. note: Hmm, sounds familiar.] The day before trial was scheduled to begin, the State agreed to pay $50 million as compensation for its wrongdoing. Sometimes “reform” comes too late.

Second, here’s another of those odd coincidences that recur in the story of my life. Esquibel graduated from law school at the University of Utah. Like me, his wife went to Brigham Young University. Esquibel went to high school in Pocatello, Idaho, just across the state line from the Utah valley where I went to high school. Small world.

After each episode of Game of Thrones, the online magazine Slate asks “who is currently the worst person in Westeros?” “Westeros” is the fictional continent whose throne everyone is fighting over on HBO. “Western” is the shorthand everyone in Bellingham uses to refer to our community anchor, Western Washington University. My former employers at the Washington Attorney General’s Office hired me to serve as Western’s chief legal advisor, then spent the next year abusing and discriminating against me. When I’d made enough progress with PTSD to share some of the stories about my experiences, I decided to borrow Slate’s framing device. Stay tuned to see who will ultimately be crowned as the Worst Person in Western-eros…. 

Click here for other episodes of "Who is the Worst Person in Western-eros?"

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