Thursday, August 16, 2018

Secured Transactions

Normal law schools teach a course called “Secured Transactions.” Not Yale. 

Instead, Yale would offer fascinating seminars, like “Secured Transactions and Economic Theory,” “Secured Transactions and the Empowered Worker,” “Secured Transactions and Social Anxiety,” and “Secured Transactions and Late Romantic Poetry.” 

My former roommate Phillip went to a nice normal law school. Grateful to squeeze "Law and Literature" into his schedule as a precious elective, Phil referred to this type of course as “Law and Bananas.” At Phil’s school, such philosophical seminars were treated like rare exotic fruits. At Yale Law School, they were the main course.

Not that I’m complaining – I loved taking Harold Bloom’s graduate Shakespeare seminar, as well as law school courses with names like “Justice” or “Robust/Fragile International Regimes." I got an amazing education. But like all Yalies, I resigned myself to the fact that if I wanted to learn any substantive legal rules, I’d have to wait until my bar exam preparation course.

I hasten to add that I’m describing conditions at Yale Law School during the impractical era that produced such legal luminaries as Supreme Court nominee Brent Kavanaugh and myself. (We were law school classmates). No doubt things are different nowadays. Indeed, based on the dean’s breathless fundraising updates, I assume they’ve already created a hands-on “Yale Student Clinic for Securing Transactions & Anti-Trump Injunctions.”

The summer after law school graduation was idyllic. The law firm paid the fees for our bar exam prep course, as well as providing a stipend to cover new hires’ living expenses. I would sleep in late, read on a blanket at the park, meet my colleagues for dinner, attend class together in the evening, then ditch the straights and secretly go out clubbing with my new gay friend Rob. It was a blissful summer – until the final few days of frantic cramming for the bar exam, when I lost my mind. Everyone ultimately does.

One evening’s lecture was devoted to the topic of “Secured Transactions.” I’d never even heard the phrase in law school. The dense outline materials were incomprehensible, so I assumed the lecturer would explain everything in person. He did not. Instead, I faced a barrage of mysterious jargon: “negotiable instruments,” “commercial paper,” “PMSI,” "holders," "priority," “attaching” versus “perfecting” interests….

Weeks of study proved futile. When a Secured Transactions essay question showed up on the bar exam, I simply wrote the words “Holder in Due Course” over and over like a mantra. Apparently this strategy worked, because I passed the bar.

As it turned out, one of my first appeals was about Secured Transactions. We represented a bank that was part of a complex transaction involving payment for apple shipments from Washington to Taiwan. The fast-talking senior associate invited me to her office to learn about the case. I frantically wrote down nouns and verbs on my legal notepad. I didn’t confess my ignorance of banking law, but my look of panic must have tipped her off. She gently suggested I go to the firm’s law library to find some background resources.

The librarian directed me to a treatise covering letters of credit and other commercial paper. The author’s name looked familiar. I realized he was my opposing counsel.

Nevertheless, I managed to learn just enough about Secured Transactions to draft a motion that convinced the trial judge to dismiss the case against our clients. In my first published appellate victory, we persuaded the Ninth Circuit Court of Appeals to affirm the ruling. See Cenlin Taiwan Ltd. v. Centon, Ltd., 5 F.3d 354 (9th Cir. 1993).

After the Cenlin case, I mostly forgot about Secured Transactions. Appellate lawyers are like the Gary Cooper character in a classic western movie: we’re invited into town, we clean things up, we ride off into the sunset. 

Then last week it all came back to me.

It’s back to school time around here. Rosalind and Oliver inform me they already have everything they need. In contrast, Eleanor has a long list of expensive “needs.” In addition, she “needed” extra funds to go to an end-of-summer activity with “everyone.” Facing a cash-flow crunch, Eleanor turned to the bank for a bridge loan.

As we hammered out the details of the transaction, I started to recognize familiar terms and concepts. She was the “debtor” and I was the “creditor.” Desperate for cash, she was willing to pledge her most valued possession – her beloved iPhone – in the event she defaulted on her payments. (That’s what makes it a “secured” transaction.) When I asked myself whether I should try selling Eleanor’s note to Grandma or my ex so I could afford groceries this week, I realized I’d even made the instrument “negotiable.” 

Which resulted in a further epiphany. My legal skills aren’t limited to appeals, other litigation, policy analysis, legislative drafting, public education, and client counseling, etc. No, I am also a transactional lawyer.

So to any prospective employers out there:  Please update my resume to reflect that I have substantial recent experience negotiating and documenting Secured Transactions.

Sunday, August 12, 2018

Unfuzzy Things

When Post Traumatic Stress Disorder hit me almost three years ago, the most visible symptom was a dramatic increase in my formerly mild case of trichotillomania – the compulsion to pull out your hair. I began ferociously rubbing my forehead and yanking out what's left of the hair above it. Most of the time I’m unaware it’s happening. By the end of particularly stressful days, my scalp is raw. 

To mitigate trichotillomania’s impact, I learned to fiddle instead with over-sized pipe cleaners – “fuzzy things.” As I wrote here last year, I found my fuzzy things serendipitously. Long ago I had a favorite stress squeezeball, a miniature blue and green globe. So when the scalp-rubbing began driving me crazy, I went to the basement and sorted through all the kids’ old balls to see if I could find something with a similar size and soothing squishiness. (Yes, I’ve tried fidget spinners. Too hard.) Finally, I found a green ball that felt just right – but it wasn’t a ball after all. It was a balled-up oversized pipe cleaner, left over from some forgotten art project.  

I began buying fuzzy things in bulk at Michael’s craft store, which I then cut up into eight-inch strips. They’re soft and squeezable, but you can also fiddle with them, or use them to tie up your fingers. They work pretty well at keeping my hands occupied, or at grabbing my attention as I see them approach my forehead. But they’re not 100% effective. And they fall apart too easily.

A few months later, I discovered a shelf at Michael’s displaying reinforced supersized fuzzy things. Unfortunately, Super Fuzzy Things only come in black. And they wear out after a few heavy-duty hours, breaking up into fuzzy fragments with sharp metal protrusions. I still end most days with a sore forehead.

Have you identified the improvable therbligs in your life?

One of the favorite books from my childhood is Cheaper by the Dozen, a memoir by siblings Frank Gilbreth, Jr. and Ernestine Gilbreth Carey. (They also wrote the sequel Belles on their Toes.) If you’re only familiar with the 2003 Steve Martin movie of the same name, you would think Cheaper by the Dozen is merely a story about growing up in a large family. But what set the Gilbreth kids apart from their early 20th century peers was the profession of their eccentric parents: Frank Sr. and his wife Lillian were pioneers in the field of “time and motion study,” what we now would call organizational behavior and management consulting. And the Gilbreth parents insisted on embarrassing their numerous offspring by practicing efficiency techniques on them at home.

Frank and Lillian coined the term “therblig,” which is their surname spelled backwards, to refer to each of the individual steps or standardized components of an industrial process. In Cheaper by the Dozen, the Gilbreth children provide a practical illustration of how motion study works. The goal is to identify and optimize each “therblig” that makes up a particular process:

Suppose a man goes into a bathroom and shave. We'll assume that his face is all lathered and that he is ready to pick up his razor. He knows where the razor is, but first he must locate it with his eye. That is "search," the first Therblig. His eye finds it and comes to rest – that's "find," the second Therblig. Third comes "select," the process of sliding the razor prior to the fourth Therblig, "grasp." Fifth is "transport loaded," bringing the razor up to his face, and sixth is "position," getting the razor set on his face. There are eleven other Therbligs –  the last one is "think"!

Cheaper by the Dozen neglects to share the secrets of a perfectly efficient shave. However, every time I put on a dress shirt, I remember I’m doing it wrong. According to the Gilbreths, it’s faster to start buttoning up from the bottom button, rather than from the top down.

In the final novel she published before her death in 1974, my favorite author Jane Duncan focused on two beloved characters that readers first got to know in the earliest tales of the author’s childhood. Her uncles George and Tom spent their lives in the remote Highlands, on a marginally arable family farm (a “croft” in Scots dialect) – very like my Mormon pioneer ancestors in Utah.   

After the death of her husband, our 50something narrator finally returns home to Scotland after a long expatriate stint in the West Indies. She begins a new life as a writer, and moves into the family cottage with her elderly uncles. (This was in the 1960s, about the time I was born.) George and Tom were born in the Victorian era, so by this time they had seen enormous changes to their world: revolutions, depressions, two world wars, and massive technological transformations. Through all the tumult, they remained endlessly curious and resourceful. 

Duncan writes about the time her uncles figured out how to convert a couple of pieces of abandoned furniture into an ergonomic work station for her. According to the narrator, the episode was “illustrative of their ingenuity”:  

I have often thought that the men who erected the Pyramids or the statues on Easter Island must have had something in common with George and Tom, for at the croft they had contrived to move enormous boulders or huge trees that seemed to be beyond the strength of two men.

Frank and Lillian Gilbreth would have liked George and Tom.

George and Tom always remind me of my father. He grew up milking cows by hand on the family farm, before escaping to college at the end of the 1950s. A pragmatic insurance adjuster by profession, my dad also has endless practical skills. He’s built a house and remodeled two others to death. He has a tool for every occasion, or he will jury-rig one. He’s a real-life amateur MacGyver. At age 54, I still approach every mechanical or automotive task by asking myself “what would Dad do?” Or I just call and ask him.

Earlier this summer, my parents made their annual trek to Utah, where they stayed with my Uncle LaMar. Dad’s younger brother is more of a professional MacGyver – he’s a management consultant who travels the world figuring out how to improve manufacturing processes.

While in Utah, LaMar took my parents to the site of his current client, a manufacturer of next-generation pillows and mattresses. My dad saw a bowl full of purple “unfuzzy things,” which the company offers to customers to show how their technology works. Dad immediately recognized these promotional items had the potential to replace my Super Fuzzy Things as a tool for mitigating the impact of trichotillomania, and brought a few home.

Sure enough, Unfuzzy Things work. I can fiddle with them endlessly without their falling apart or poking my fingers. The cool non-metallic texture feels soothing. I need to lay up a healthy supply before Uncle LaMar moves on to his next consulting project.

Trichotillomania is not just for people living with PTSD, although there is a high correlation. The Trichotillomania Learning Center, now rebranded as the “TLC Foundation for Body-Focused Repetitive Behaviors,” has a helpful website if you’d like to learn more about the disorder. Although my own particular symptoms hurt and make me terribly self-conscious, I’m relatively fortunate. As a middle-aged dad with thinning hair, my localized handiwork is pretty inconspicuous. In contrast, Google will take you to ghastly Pinterest photos of women who have mowed broad bald swaths across their skulls. Body-focused repetitive behaviors, like the related cluster of eating disorders, are examples of the debilitating impact of mental illness.

I know a teenager who was abused and neglected as a young child. Now she’s a poised, happy young woman. Most of the time you would never guess what she went through. Nevertheless, for as long as I’ve known her, she has compulsively brought her fingers up to her face and fiddled with them. Just like me now.

Before I began living with PTSD, my reaction was to gently suggest she stop doing it – to “snap out of it,” as Cher says to Nicholas Cage in Moonstruck. This same thoughtless response is exactly how too many people react to other very real examples of mental illness, including depression, anxiety, and PTSD. 

Trauma alters the wiring of our brains. Some of trauma’s impact can be mitigated by medication, counseling, and other treatments. But as with other disabilities, both “physical” and “mental” (as if there was a meaningful distinction, other than society’s disparate response), some symptoms may never go away. 

After three years of living with a PTSD diagnosis, I’m overjoyed by the progress I’ve made. Like other disabled people, I’m frustrated by the doors that remain closed, but that’s another story. Meanwhile, I’m resigned to the prospect of relying on fuzzy and unfuzzy things for years to come. 

So I turn to something like Reinhold Niebuhr’s Serenity Prayer, which folks repeat countless times every day at meetings of Codependents Anonymous, AA, and other similar groups:  

Grant me the Serenity to accept the things I cannot change,
the Courage [and Creativity] to change the things I can,
and the Wisdom to know the difference.

Wednesday, August 8, 2018

Act Two....

The ballots have now been counted in Washington’s primary election. Unfortunately, I will not be one of the candidates continuing on to the general election in November. 

Thanks to all the voters and others who supported me, particularly intrepid volunteers like Marla Jones and Jack Hovenier, and graphics designer Dennis Phillips. Most of all I’ve appreciated my family’s love and support. 

Before entering the race, I reached out to several people for campaign advice. A couple of friends shared their recent experiences as a candidate. Each survived the primary, only to fall short in the general election. When I asked each what they wished they had known as a new candidate, I expected tips about balancing family responsibilities, effective fundraising, or using social media. Instead, both independently gave me the same response – “I wish I’d known I was going to lose” – with the implication in each case that they wouldn’t have run at all.

Their observation stuck with me. I was entering a crowded and uncertain race, where four of five candidates would inevitably lose. I campaigned to win. But I also tried to use the experience – win or lose – as an opportunity for family and personal growth. I set goals about managing anxiety, creating positive experiences for my family, and raising my community profile. I didn’t meet my exercise targets, but I made progress on things like reading, writing, and unplugging from the internet. 

Although I’m disappointed by the outcome of the election, I do not regret running for the Court of Appeals. I look forward to finding other opportunities for service.

As any candidate will report, the best part of the experience was interacting with voters. For example, after my presentation at the League of Women Voter’s forum last month, I was touched by the women who came up to tell me I should be a teacher. Similarly, in an encouraging sign of voter engagement, my post “Vote for Roger” quickly received more hits than any of my prior blog posts. Multiple folks thanked me for explaining what appellate judges actually do. 

Nevertheless, candidates can easily retreat to a bubble of positive news – no one bothers to tell you they’re voting for the other guy. (Other than the Second Amendment fanatic who scoured ancient Facebook posts looking for evidence that I would be a “gun grabber” as a judge.)

In the end, it’s not enough to be the most qualified person in an elaborate popularity contest. So I’m fortunate to have the recent example of watching my daughter gracefully handle defeat in her election for middle school class secretary. If she can do it, so can I.

F. Scott Fitzgerald famously and falsely wrote “There are no second acts in American lives.” To the contrary, our lives are endless stories of reinvention and redemption. 

I confess I got my hopes up over this judicial campaign thing because it seemed to offer such an elegant and appealing path out of the troubles that began plaguing me a few years ago. But so did my job at the university, as well as other promising job leads that didn't pan out. Yet. It turns out there is no one true Act Two (or Act Three, or Four, or whatever). So it's back to the job search, and writing, and a little legal work. Let me know if you hear of any professional opportunities in the area.

In the meantime, the kids will be back from summer camp soon, and we're looking forward to a fun conclusion to an interesting summer. 

Thanks again to everyone for your support and encouragement.