Tuesday, March 31, 2020

Have Fun!

The last time I visited Utah’s famous Lagoon Amusement Park was in Spring 1983. My college friends and I posed for this old-fashioned photograph in Lagoon’s “Pioneer Village.” The portrait captures our posse at the end of my sophomore year at Brigham Young University. 

I was eighteen going on nineteen, and clueless. It would be another four years before I finally kissed a girl, and another seven years before I kissed a boy. Meanwhile, I was stuck in an advanced state of religious confusion / sexual confusion / mental health confusion. My endlessly unsolvable three-body problem.  

Back in the day, Mormon missionaries – ironically titled “Elders” – left on missions shortly after our nineteenth birthday. That meant that by Spring 1983, the rest of my earnest male Mormon cohort had long since left on their missionsWhen all my nerdy peers from our freshman year at BYU were preparing to leave for France, Italy, Japan, and South America, I was totally primed to go on my mission, too. But as a result of skipping a grade when I awkwardly moved from Canada to UtahI was a year younger than everyone else in my freshman class. And despite all my pleading, the Church absolutely wouldn’t let me go on my mission until I turned nineteen. 

Instead, I spent my sophomore year back in the same Honors Program dormitory, lonely and frustrated. Fortunately I found a new group of pre-mission freshman friends. Todd was from a farm in Idaho, and brought his Camaro to BYU. Bill was from Portland. Brian was from another Idaho farm town. Adam was from Marin County, just across the Golden Gate from San Francisco. 

On weekends we’d escape from Q-Hall and drive up to Salt Lake, where we’d hang out at Trolley Square mall, or go see Rocky Horror Picture Show at the Blue Mouse Theater. We’d stay with Brian’s high school classmate Vaughn, who lived and worked in the city. Vaughn joined us at Lagoon that spring day, so he appears in the photograph with five BYU students. At the end of the school year, we road tripped together to San Francisco and up the Pacific Coast.

Each of us received our mission calls and turned nineteen by the summer of 1983. I was called to serve in Seoul, Korea. Todd was also going to Korea, but to another part of the country. Bill and Brian were called to glamorous European countries. Vaughn’s mission call was to some dreary Dust Bowl state.  

In June, my family dropped me off at the Missionary Training Center in Provo, Utah. The MTC is where Mormon missionaries spend eight weeks undergoing intense gospel and language study before they fly overseas. It’s like missionary boot camp. All of the Elders studying Korean lived in the same MTC barracks. Our teachers were BYU students in their early twenties whod recently returned from serving as missionaries in Korea themselves. Todd was a week ahead of me in the MTC program.

In the picture below, you can see me in my MTC summer missionary uniform: white shirt, wide tie, and black name tag. It was our weekly errand day. Todd and I went with a bunch of missionaries to the mall, where we ran into Brian and Vaughn.

What clueless looked like in 1983. Hes on the far left.

On a typical MTC day in August 1983, I was sitting in the cafeteria. Todd’s group of missionaries was shipping out to Korea the next day. For the first time I heard my name over the loudspeaker: “Would Elder Roger Leishman and his companion come to the front desk?”

The receptionist told me to go meet the Korean-bound missionaries’ Branch President in his office immediately. This volunteer pastoral leader oversaw dozens of missionaries during their time in the MTC. In real life he was a young philosophy professor at BYU who’d served his mission in Korea a few years before.

When I arrived, President Faulconer looked serious. I barely sat down before he asked me the following question:

“Elder Leishman, are you a homosexual?”

After an infinitesimal pause I told the Branch President “No.” For innumerable reasons, this was not the moment for coming out  to myself or anyone else. Nevertheless, as clueless as I was, that was the question I suddenly knew I’d been fearing for years. 

In contrast, the Branch President’s next question came as a complete surprise: “Do you know whether your friend Elder Todd is a homosexual?”

I replied that I had no idea. Unlike my answer to his first question, “No idea was still the whole truth.

Eventually the entire story came tumbling out of various closets. The details make up a juicy chapter in my book.

A quick preview:  Todd wasn’t just a homosexual. He and Vaughn were secretly dating. Vaughn and Todd are the two guys in the middle of the photograph from the mall – the civilian in the mesh shirt, and the missionary leaning into his crotch. Two blatantly gay guys who look like they’re about to have sex in the University Mall bathroom. 

After successfully hiding their secret at BYU all year and then at the MTC all summer, on Todd’s last day someone outed him to our Branch President. Then they called Idaho and outed Todd to his mother, too. While the other Elders from his MTC group flew to Korea, Todd’s parents drove him home to the farm in disgrace

One week later, I flew to Seoul to begin the rest of my mission in a daze. Todd was excommunicated from the Mormon church, disowned by his family, and thrown to the wolves. 

Eventually I realized the Big Gay Mormon thing wasn’t just Todd and Vaughn. And my other roommate John. Brian and Adam each came out soon afterwards, too. None of them came back to finish their BYU degrees. 

In contrast, Bill and I couldnt resist returning to Provo after our missions. We were off-campus housemates until Bill married the lovely Melissa. I continued working on my triple-barreled nervous breakdown, even as I desperately searched for a way to escape. 

To distract myself, after graduation I stayed at BYU for a crazy gap year. I taught Freshman English, took linguistics classes, performed at Hale Center Theatre, and applied to law schools. I grew up a little. Someone finally kissed me. When a group of Mormon friends came together to create Student Review, BYU’s longest-running independent student publication, Bill was the founding Publisher and I was the Editor. 

Some journalists. The straight guy and clueless Roger were the only ones from the Lagoon picture who had no idea what was going on.

In November 2015, after I described overwhelming anxiety symptoms to my new Bellingham physician, Dr. Heuristic referred me to a therapist who specialized in treating patients with Post-Traumatic Stress Disorder. At our first session she gave me a standard PTSD assessment test. I don’t know how the scale works, but I got an awfully large score for someone who still thought of himself as highly functioning. 

One question on the PTSD test asked about dreams related to trauma. The only time in my life when I regularly suffered from traumatic dreams was during my first months in Korea. I kept having indirectly violent dreams – like an Alfred Hitchcock movie where you’re the James Stewart character, and you discover all your missionary companions are secretly axe murderers. 

A couple of years ago, Ellis Jeter was a finalist in the New York Times Modern Love College Essay contest. His “White Shirt, Black Name Tag, Big Secret” is a charming story about how he came out to someone he originally met as a missionary in the MTC

As a good little Mormon gay boy, Jeter was dealing with some of the same three-body problems. But even the most oblivious BYU student today is much more aware that I was thirty-seven years ago. My MTC missionary story was mostly about cluelessness. Until the story ended in trauma. Three decades later my story moved on to triggers and PTSD, and eventually to recovery.

A few years ago, I got an email out of the blue from Todd. I was still a frustrated lawyer/single dad in Seattle. Todd revealed that after facing a few more challenges in his twenties, he got his life back on track. Eventually Todd became a gay English professor. 

Damn. Isn’t that the definition of a happy ending?

More recent homophobic Mormon news

Thursday, March 26, 2020

Beyond Bardolatry

The Bible of Bardolatry

Yale humanities professor and literary critic Harold Bloom died last October. That makes me the biggest bardolator alive. Uneasy lies the head that wears a crown.

We English Majors have been worshipping the Bard of Avon for a long time. In his succinct biography Shakespeare, Bill Bryson describes a student play performed at Cambridge University around the time of Hamlet’s London premiere:

The Return from Parnassus contained the words ‘O sweet Mr Shakespeare! I’ll have his picture in my study at the court,’ suggesting that Shakespeare was by then a kind of literary pinup.

It’s not just a crush on a cute writer. [Ed. Note: The cute writer.] It’s a lifelong crush on the works of William Shakespeare – the entertaining plays, the gorgeous poems, the supreme use of language, the inescapable influence on culture, the endless insights about psychology, art, literature, history, killing lawyers, humor…. The list goes on and on.

What sets my devout bardolatry apart from your garden variety fanboy is a shared timeline. Shakespeare and I were born exactly 400 years apart. That makes it easy to figure out how old Shakespeare was at each point in the chronology of his life and career.

According to the parish records in Stratford, William Shakespeare was baptized on April 26, 1564, with April 23, 1564, traditionally recognized as Shakespeare’s birthday. I was born four centuries and a week later, on May 2, 1964. 

In 1587/1987, we were twenty-three years old, and lost.

In 1596/1996, we were thirty-two years old, and making a name for ourselves in the world.

In 1603/2003, we were thirty-nine years old, busy with our big city careers and our country homes.

In 1620/2020, Shakespeare had been dead for four years, and I’m hiding indoors from the plague.

English Majors are notorious for seeing themselves reflected in their favorite characters from Shakespeare’s plays. Professor Bloom tended to identify with Falstaff, Hamlet, and Cleopatra. But the greatest bardolators also find parallels in the few factual fragments about the playwright’s own life that historians have uncovered.

In my case, it’s not just the Class of ’64 timeline thing. Or theatre, or literature, or hostility to lawyers and bad acting. What little we know about Shakespeare himself is eerily familiar.

For example, Will and I each had two daughters and a son, born a couple of years apart. Our fathers are both named John. They grew up on farms, but moved to town where they became successful businessmen. 

Bryson identifies a key developmental milestone I share with Shakespeare:  “something severely unfavourable seems to have happened in John’s business life, for in 1576, when William was twelve, he abruptly withdrew from public affairs and stopped attending meetings.” In 1976, when I was twelve, my father quit his job in Vancouver. My parents moved to Utah and ruined my life. Totally similar to whatever parental blunder traumatized moody tween Shakespeare. (As a Gay Sitcom Dad raising two teen-aged daughters, I happen to be an expert in adolescent drama.)

Fortunately, both William Shakespeare and I recovered from our youthful traumas. As we entered our fifties, we walked away from successful public careers in the big city, and moved eighty-seven miles north to be closer to our families.

Shakespeare family coat of arms

My Bellingham doctor diagnosed me with Post-Traumatic Stress Disorder in November 2015. Earlier this month, I wrote in “Better-ish” about some of the recent improvements in my mental health:

Now I feel like myself, even when I feel unwell. The good news is that most of my fuzzy memories have finally snapped into place. The bad news is that my brain concluded the simplest way to adjust my internal clock was to delete two years from the timeline. It’s sorta like switching to Daylight Savings Time. Or like when England converted from the Julian Calendar to the Gregorian Calendar, and eleven days were dropped from September 1752.

A few days later, after all the public libraries in Bellingham closed for coronavirus, I borrowed a stack of books from my mother. I’d recently finished her copy of Bryson’s The Body: A Guide for Occupants and passed it on to my pre-pre-med daughter, so I grabbed a few more volumes from Mom’s shelf of the complete works of Bill Bryson. (My mother and I tend to be completists.) 

Considering how many books about Shakespeare I’ve read over the decades, I can’t believe I hadn’t already noticed Bryson’s slim Shakespeare on the shelf. And I can’t believe I hadn’t already made this startling connection: 

Shakespeare was born under the old Julian calendar, not the Gregorian, which wasn’t created until 1582, when Shakespeare was already old enough to marry. In consequence, what was 23 April to Shakespeare would to us today be 3 May.

But wait, you point out, didn’t I just say my birthday is May 2, not May 3? However, I was born at 11 pm in Mountain Time Zone. Which in Stratford-on-Avon would be at 6 am on May 3.

So I really was born exactly four hundred years after William Shakespeare.

William Shakespeare died in Stratford on April 23, 1616, at age fifty-two. Four centuries later, I didn’t die at fifty-two. Instead, I lost my mind when my employers at the Washington Attorney General’s Office placed me in an abusive and illegal “home assignment” in retaliation for seeking a workplace free from discrimination. 

It’s been four very hard and plague-filled years since April 2016. Nevertheless, in spite of everything, these days I’m doing better-ish when it comes to the things that matter most to me, like my family, my writing, and my mental health.

I’ll always be slow about certain things. I didn’t start any of the most important stuff in life until I was a couple of decades older than the prodigious William Shakespeare was four hundred years ago. If nothing else, that means it’s too late to compete with Shakespeare in the youthful fatherhood or romance departments. Like my other favorite author, Jane Duncan, hopefully I’m a late bloomer as a writer, too.

Still, William Shakespeare and I already have numerous traits in common. Two daughters and a son. A lifetime in theatre/gay men’s chorus. Ex-farmer fathers named John. English Major stuff. Disasters. (Nostradamus would say the Globe Theatre burning down in 1613 corresponds to a landslide destroying my dream house on Whidbey Island.)

If you survey the histories of our respective eras, you’ll also see how Shakespeare and I each survived multiple waves of the plague. In fact, just like Will and Kit experienced during the bubonic closures of London’s theatres four hundred years ago, as I write this paragraph it’s a typical Wednesday – but I can’t drive north for Vancouver Men’s Chorus rehearsal or for Show Tune Night. The border, the theatres, the chorus, the schools, the bars, the churches, and everything else in Canada and the States are closed because of a pandemic.

Regardless of our many similarities, there will always be two key differences between William Shakespeare and me:

He’s an immortal genius. I’m not.

He died at age 52. I didn’t.

Which means historians can argue over yet another intriguing fact about Shakespeare that no one will ever know for sure. Could he have made it to age 55 after surviving the Mormons, the gays, midlife Post-Traumatic Stress Disorder, single parenthood, and a plague of dishonest lawyers? Because I did.

Here are links to more of my “Doppeler Effect” essays, describing other individuals whose lives have paralleled and/or crossed particular threads of my own story: 

I am Rob Lowe” (9/20/17)

Chorus Minivan Dad” (3/6/18)

My Best Friend Paul” (6/7/18)

Tuesday, March 24, 2020

Everything is Connected

Yale graduates read and write about whatever we want, and call it law.” For example, the best class I took in law school was Harold Bloom’s Shakespeare seminar. Nevertheless, here’s something I never thought I’d put on my bucket list, let alone cross off:  the most important Supreme Court brief Ive ever written ends with a paragraph from Malcolm Gladwell’s latest book.

Heres how the Supplemental Brief I submitted to the Washington Supreme Court last week concluded:

“The Answer to Defendants Petition for Review characterized this case as involving two vexing perennial issues: the systemic challenges faced by under-resourced pro se litigants, and the decline in professionalism by members of the bar. Let us cease mincing words. Hand-wringing over a decline in professionalism is a too-polite euphemism for the trouble caused by the increasing proportion of lawyers who cannot or will not distinguish between zealous advocacy and plain old lying.…

In this case, the collective tragedy of the Attorney General’s Office, Ogden Murphy Wallace, Western Washington University, and Roger Leishman began with a few boneheaded Human Resources mistakes by the State’s top employment attorneys. Implicit and explicit bias made things worse along the way. But the saga became a disaster only when lawyers started lying, and then wouldn’t stop. The legal system is simply not equipped to handle this many lies from members of the bar. 

In his new book, Malcolm Gladwell focuses on one of the biggest puzzles in human psychology

why are we so bad at detecting lies? You’d think we would be good at it. Logic says that it would be very useful for human beings to know when they are being deceived. Evolution, over many millions of years, should have favored people with the ability to pick up the subtle signs of deception. But it hasn’t.

M. Gladwell, Talking to Strangers 72 (2019). According to Gladwell, humans generally benefit from defaulting to credulity, both as individuals and as a society. 

Nevertheless, truthfulness still matters. Fortunately, lawyers and judges can rely on powerful truth-revealing tools, including the adversary system itself. Unfortunately, these traditional protections become increasingly ineffective when most ordinary people lack access to legal resources; when so many cases involve at least one pro se litigant, often from a marginalized community; when there is an overwhelming asymmetry between pro se parties and members of the gilded class with access to effective counsel; when too many lawyers fail to display candor to the tribunal, or to anyone else; and when too many tribunals lack the resources or the stomach to do anything in response to a plague of dishonest lawyers. 

Honestly criticizing one’s own tribe is among the hardest tasks for any social species. It’s hard for lawyers and judges, too. But someone has to do it. Leishman respectfully requests that this Court affirm the decision of the Court of Appeals.

These days I approach every legal task as a brand new writer/lawyer challenge. So when I drafted my Supplemental Brief for the Washington Supreme Court, I tried to come up with some fresh material. My fact-checking got a little carried away. I prettified some trusty old arguments, putting lipstick on Wilbur and making a silk man-purse out of Spider-Ham. The conclusion ended more in sorrow than in anger. My brief even cited a few new cases and statutes.

And I highlighted one sentence from a 1989 legislative committee report in the Washington House of Representatives.

The primary legal question before the Supreme Court is the proper interpretation of the 
Brenda Hill Bill, Washington’s citizen whistleblower protection statute. During the 1980s, Brenda Hill and her husband bought a home from a real estate developer. When the Hills tried to refinance their mortgage in 1987, they discovered the developer had not paid any excise tax for two years, imperiling the title to homes purchased by the Hills and three hundred other families. According to the House of Representatives committee report, “Mrs. Hill reported this violation to the Department of Revenue. As a result of the disclosures made to state officials, the Hills were sued by the developer. 

While I was assembling the Appendix to my Supplemental Brief, I carefully went through the Brenda Hill Bill's entire legislative history for at least my fifth time. I flagged two items I
d seen before but never really paid attention to. One was the very next sentence from the legislative history. I underlined it for the Supreme Court:

Mrs. Hill asked that the state defend her, but was told that the state had no authority to do so. The cost of defending the developer's suit has forced the Hills into bankruptcy. 

Supplemental Brief at 11-12 (citing Appendix at 62). The Washington Legislature passed the Brenda Hill Bill to protect other private citizen whistleblowers from suffering the same fate as Mrs. Hill’s family. 

I began this strange journey of recovery, research, writing, and lawyering almost three years ago, after my life was transformed by Post-Traumatic Stress Disorder and dishonest lawyers. 

As I wrote last month in 
Well-Picked Battles, the most visible ring of the legal circus is my appeal before the Washington Supreme Court. The Supreme Court has both the authority and the resources to give these issues the attention they need. However, the circus also includes various other related and semi-related proceedings that are currently pending before separate courts and administrative tribunals, such as the Washington State Bar Association’s lawyer discipline system, the Executive Ethics Board, and the state’s Office of Risk Management. 

Regardless of the venue, this tragic story comes down to the same handful of fundamental truths

1.     Representatives of the State of Washington injured me, including the State’s top employment lawyers and the attorney-investigator they hired. See “My Story So Far”; Notice of ClaimComplaint.

2.     When the Washington Legislature passed the “Brenda Hill Bill” to protect private citizen whistleblowers, it did not intend to grant absolute immunity from civil liability for injuries caused by dishonest government vendors. See Leishman v. Ogden Murphy Wallace PLLC, 10 Wn.App.2d 826 (2019)Answer to Petition for Review.

3.     Senior lawyers at the Attorney General’s Office acted unethically when they directed their investigator to interrogate me alone in his office after they knew Id hired a lawyer to represent me in my employment dispute. See In re Discipline of Haley, 156 Wn.2d 324 (2006); Undisputed RPC 4.2 Violation Timeline; “Bar Discipline.”

4.     The Washington Constitution forbids the Attorney General’s Office from using tax-payer funds to represent private individuals, including State employees accused of unethical conduct. See Sanders v. State, 166 Wn.2d 164 (2010)Undisputed Timeline of Ethics in Public Service Act violations by Attorney General’s Office; “Toxic Entitlement.”

Eventually, even lawyers can focus on what matters.

All four issues involve the same increasingly common real-world situation. Procedurally, each issue arose out of an ordinary legal dispute where (1) there was a victim without an attorney; (2) all the other parties were well-financed institutions with access to a certain kind of lawyer; and (3) everyone was facing off before a busy legal tribunal. 

These are challenging times for Americans who can't afford to hire a lawyer. Forty years of powerful anti-democratic forces have resulted in the Donald Trump Administration, the Mitch McConnell Senate, and the John Roberts Supreme Court. Even when the outcome of a particular legal case doesn’t turn on some party’s power or privilege, any adjudication system is doomed when the decision-makers’ primary goal degenerates from getting it right, to getting it done, to getting rid of it. Power corrupts; bureaucratic power curdles. That’s why nations fail.   

Fortunately, the legal situation in Washington State is much less dire. We have a strong bench, vibrant voluntary bar associations, engaged citizens, and committed public servants. I’ve attended a lot of inspiring access-to-justice conferences across the state. 

Nevertheless, once I began seeking legal relief alone in the real world, I discovered all those earnest bar meetings were a complete waste of time. My personal experience with the legal system, while extraordinary in many ways, is utterly typical. It turns out the problem isn’t the number of pro se litigant who lack access to effective counsel. The problem isnt societal inequality, or shrinking civil legal aid budgets, or over-burdened courts. The problem with the legal system is the lawyers. 

In Rex Stout's mystery novella Before I Die, my favorite literary detective Nero Wolfe describes attorneys as “insufferable word-stretchers”: “They think everything has two sides, which is nonsense.”

Above I listed four fundamental truths about my case. None involves a close call. Anyone who reads the actual evidence and the controlling legal authorities immediately recognizes that each question is a bona fide No Brainer

What makes a straightforward factual or legal issue seem close – and what lures many tribunals into getting things wrong, at least the first time – is the presence of too many deep-pocketed parties represented by lawyers who are willing to say just about anything. When the parties themselves are lawyers too, the plague spreads exponentially.

Practicing law can harm your mental health. I’ve repeatedly written about the dangerous relationship between lawyers and the truth, in blog essays like “Confabulation, 7-Eleven Law School is accredited!, Lilies That Fester, and Some Days We Are All Less Smart.

Even honest legal arguments involve too many words. So last year I edited my elevator speech down to one sentenceThis case is about what happen when lawyers start lying, and then won’t stop. I embarked upon a new phase in my litigation and public education campaign, giving the lawyers from the Attorney General’s Office and Ogden Murphy Wallace enough rope to hang each other. And then I waited. 

The results have been gratifying. The State finally produced numerous incriminating documents in response to my persistent requests under the Public Records Act. In September 2019, the Court of Appeals emphatically reversed the trial court’s erroneous decision, and reinstated my lawsuit against Ogden Murphy Wallace and its partner Patrick Pearce. In January 2020, the Washington Supreme Court agreed to accept review because this case presents important issues of substantial public interest that should be determined by the Court. 

Meanwhile, my inept and dishonest opponents keep creating more opportunities for me to underscore the same fundamental themes. Because, as the world sees every day with Donald Trumpwhat lying lawyers lie about, more than anything else, is their own lying.


As I drafted my Supplemental Brief to the Washington Supreme Court, I noticed one other interesting item from the Brenda Hill Bill legislative history. The government official responsible for the sentence I underlined for the Supreme Court was Representative Marlin Appelwick, the Chair of the House Committee on Judiciary. Thirty years later, Judge Marlin Appelwick was one of the three members of the Court of Appeals who reinstated my lawsuit against Defendants

If you haven’t noticed already, in my story everything is connected.

Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce

Thursday, March 19, 2020

Justice Overcomes Bias

When I was in law school, cynical professors introduced us to “legal realism.” This jurisprudential philosophy focuses on why judges tend to reach certain results, rather than what judges say theyre doing. The legal realist approach is summarized in the aphorism “Justice is what the judge had for breakfast.”

While researching how human brains work, I recently discovered the legal realist cliché is actually true. Nobel Prize-winning economist Daniel Kahneman describes a famous psychology study involving Israeli parole judges:

They spend entire days reviewing applications for parole. The cases are presented in random order, and the judges spend little time on each one, an average of six minutes. The default decision is denial of parole; only 35% of requests are approved. 

The exact time of each decision is recorded, and the times of the judges’ three food breaks – morning break, lunch, and afternoon break – during the day are recorded as well. The authors of the study plotted the proportion of approved requests against the time since the last food break. The proportion spikes after each meal, when about 65% of requests are granted. During the two hours or so until the judges’ next feeding, the approval rate drops steadily, to about zero just before the meal. 

Regardless of our intentions and beliefs, all of us are affected by implicit bias.

This week I submitted my final brief to the Washington Supreme Court in my lawsuit against the sleazy lawyer-investigator that my former employers hired to justify my wrongful termination. 

Three decades after I started writing appellate briefs, I still hate our Supreme Court’s rule about “Supplemental Briefs.” When other high courts accept review of a case, including the United States Supreme Court, the court typically orders a new round of briefing focused on the specific issues before the court. The party seeking to reverse the lower court’s decision files an opening brief, the opposing party files a response brief, and then the appellant files a reply. That’s the sequence we followed in the Washington Court of Appeals.

In contrast, years ago the justices of the Washington Supreme Court decided litigants shouldn’t have to pay lawyers to repeat themselves. Instead, our Supreme Court supposedly relies on the original briefing the parties filed with the lower court, together with the successful Petition and respondent’s Answer to the Petition seeking review by the Supreme Court. Each party also simultaneously files a short “Supplemental Brief” wrapping everything up in a tasteful ribbon. (Here’s a link to the Supplemental Brief I filed this week; here’s Defendants’ Supplemental Brief.)

Drafting a Supplemental Brief is a major challenge, both as a writer and as a lawyer. Many practitioners are convinced this final brief contains your only words that certain justices will ever read, so you have to squeeze all your glittering bons mots into twenty wide-margined pages. On the other hand, we know other justices and their law clerks will obsessively read every page of each prior brief, so you don’t want to annoy them by repeating yourself too much. Meanwhile, real-world developments such as the Court of Appeals’ actual ruling may have shuffled the deck, making the Supplemental Brief your only chance to bring a little clarity to a convoluted mess.

In our case, none of the key factual or legal arguments have budged in years. Sure enough, despite hiring spiffy new lawyers, Defendants’ Supplemental Brief merely recycled all their same old embarrassing arguments, in slightly less annoying prose. In contrast, I wanted to give the Court a simple roadmap to help them locate the most important factual citations and legal authorities from the existing briefing, then offer a fresh analysis of some of the significant public policy issues implicated by the parties’ arguments.

To begin the Supplemental Brief, I needed a factual summary that would introduce the case to brand-new readers without regurgitating old material. I was stuck. Then I remembered one of my recent blog posts, “The Western Comma,” had focused on a single comma in the Court of Appeals’ succinct factual recitation. (I explained how the court could have significantly improved its factual accuracy if it had replaced that one comma with a period.) So I decided I would similarly annotate the rest of the court’s short background summary.

I was happy with the resulting Supplemental Brief. But as I reviewed my fact section one last time before submitting the document to the Supreme Court, I realized all of my suggested edits to the Court of Appeals’ factual summary involved society’s, defendants, and the courts’ implicit homophobia and systemic bias against disabled people. 

I pushed “send” anyway. It was too late to go with a different briefing approach. Besides, I already won my case in the Court of Appeals. My new audience consists of the nine justices of the Washington Supreme Court. They shouldn’t be offended by my aggressive proofreading of a busy lower court’s work product.

I hope the Court of Appeals isn’t offended, either. Over the last thirty years, Division I of the Washington Court of Appeals has consistently treated LGBT individuals with more respect than any other court in the state. Division I also has a long history of recognizing and accommodating the needs of disabled people. 

In particular, the judge who wrote the Court of Appeals opinion, David Mann, is not hostile to the LGBT community. To the contrary, the last time I went to an event for Q-Law: the LGBT Bar Association of Washington, Judge Mann was the only appellate judge in attendance. I also know that Judge Mann is personally familiar with the serious challenges confronting people who live with disabilities. I served on the ACLU of Washington’s Legal Committee together with Judge Mann’s longtime law partner, who was in a terrible bike accident during that time and became a quadriplegic. 

The Court of Appeals reached the correct result in my case. Their legal analysis is unassailable. Nevertheless, I was able to fill a quarter of my Supplemental Brief with examples of implicit homophobia and ableism from the Court of Appeals’ supposedly neutral 212-word factual summary. That’s not a criticism of the court, or of Judge Mann. It’s a reminder of the systemic challenges we all face.

On June 9, 2020, pandemics permitting, I will appear before the Washington Supreme Court in Olympia. This is the most important appeal I’ve ever argued – not just because the future of my family is at stake, but also because the case involves many of the equal justice issues I care most about.

I know the Supreme Court cares deeply about the same issues. In fact, the most important meeting I attended as a lawyer occurred in the same ceremonial courtroom at the Temple of Justice nine years ago.

When I was on the Board of Governors of the state bar association, the press reported that two of the then-justices of the Washington Supreme Court made some thoughtless remarks discounting racial disparity in the legal process. In response, the Supreme Court convened a Task Force on Race and the Criminal Justice System. Here’s a link to the Task Force’s “Preliminary Report,” which they presented on March 2, 2011, to the Supreme Court, the Board of Governors, and numerous other representatives of Washington’s legal community.

Our bench and bar leader meeting occurred before the high-profile deaths of Trayvon Martin, Michael Brown, Eric Garner, and Sandra Bland, and before Michelle Alexander published The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Nevertheless, anyone without a Fox News filter already expected grim statistics. 

Sure enough, the Task Force documented significant racial disparities at every stage of the system, from investigations, to arrests, to bail decisions, to jury and bench trials, to appeals, to incarceration, to parole, to community re-entry….  The cumulative effect was and is chilling.

However, one detail from the presentation stuck with me:  judges who were aware of their own potential for implicit bias, and who consciously paid close attention to the individual facts and circumstances of each case, managed to reach exactly the same ruling at the time of sentencing – regardless of the defendant’s race. 

In hindsight, that hopeful factoid may have inspired my first tentative steps toward a “growth mindset.” It also resonated with everything I subsequently learned about mindfulness, and about brain function. For example, in Thinking, Fast and Slow, Kahneman offers a useful model of how our brains rely on two contrasting mental processors, which I've referred to as Thing 1 and Thing 2. The first system is fast and automatic, constantly multi-tasking as it retrieves memories and generates intuitions. In contrast, the second system allocates our brain’s limited conscious attention to effortful mental tasks. Thing 2 would prefer to lazily coast along with the information and unconscious assumptions it receives from Thing 1, even when the message is corrupted by implicit bias. 

But when we manage to align everything effectively – the right blood sugar level, sufficient self- and other-awareness, lots of conscious effort – the good news is that human brains can make decisions that avoid the effects of implicit bias. 

Meanwhile, how did I end up the poster boy for so many alarming problems with the legal system? Is it a Yale Law School thing?

Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce