Wednesday, May 20, 2020

Coltrane Plays the Blues

Never in my mostly unfabulous gay life did I ever predict I would spend most of 2020 trapped alone homeschooling two moody teenagers and a grumpy tween. 

My ex moved back to the Midwest last August. After years of smoothly alternating kid weeks, the switch to fulltime single parenthood has been a big adjustment for everyone, particularly as my children also faced the transition to high school and to middle school. Nevertheless, eventually we achieved a healthy and happy new equilibrium.

Then the coronavirus came along. Bellingham public schools have been closed since March 13. So has the Canadian border. And everything else. 

In Mormon missionary lingo, the word “trunky” refers to the ambivalently confused mindset of an elder as he approaches the end of his two years of service and mentally begins to pack for the trip home. In my day the Korean equivalent was “kabangkabanghada,” which translates as “baggage-baggage-doing.” Next Tuesday the kids are flying to Indiana to spend a couple of months with their other dad. We’re all getting a little trunky.

I’ve been singing with gay choruses in Chicago, Seattle, and Vancouver for twenty-five years. I joined Vancouver Men’s Chorus in January 2016, just as everything went crazy with my career and my mental health. Since then, VMC has been my biggest lifesaver, in harmony with my family and my writing. As coronavirus collapses the world, I miss the chorus more than anything else.

Evan Stults, the marvelous longtime accompanist for Seattle Men’s Chorus, recently announced his retirement. During rehearsals the piano is closest to the Second Tenor section. I miss watching Evan in synch with the conductor, the chorus, and the music. As he put it in his Facebook announcement, for thirty-six years Evan enjoyed “a privileged front row seat for experiencing the journey of LGBTQ+ people in the US and beyond, with all our progress and setbacks.”

I came to choral singing relatively late myself, after spending my high school and college years doing theater instead. Before joining Windy City Gay Chorus, as a young lawyer I sang in the choir at Saint Mark’s Episcopal Cathedral in Seattle. But my very first choir experience was the Provo, Utah affiliate of what used to be called S.P.E.B.Q.S.A. – the “Society for the Preservation and Encouragement of Barbershop Singing in America.”

Thirty-five year later, I can only remember one barbershop song from our concerts that year. Here are some of the lyrics:

I’ll admit that I am sentimental,
A slave to my emotions it is true.
But logic after all is fundamental,
So this baffling question I must ask of you:
How can I miss you if you won’t go away?
How can I grieve if you won’t leave?
And how can I shed a tear if you’re still here? 
Absence makes the heart grow fonder, so they say – 
But how can I miss you if you won’t go away?

(You can see an earnest barbershop quartet singing the whole song on YouTube.)

Yesterday Prime Minister Trudeau announced an extension of the border closure for another month. No one knows when and where my Canadian-American niece will get married this summer. Or when and how the schools will re-open. Or the library. Or the economy. Meanwhile, without access to barbers or groomers, every person and dog in Bellingham is rocking a mullet. 

Well-intentioned folks keep forwarding me links to ominous news articles about how choral rehearsals and performances are virus “supertransmitter” events. This does not help. No one knows what a new normal will look like. All of us (well, all of us besides Donald Trump) have endured terrible sacrifices. We continue to face terrible losses, as far as the eye can see.

In the sixteen years since Eleanor was born, the longest I’ve been away from my children was three weeks in 2014, when Seattle Men’s Chorus performed in Germany. Spending this June and July alone in Bellingham with Bear and Buster will be another strange new pandemic experience. 

I’ll miss the kids. [Ed. Note:  Eventually.] But I know it’s time for a break, and the kids need to spend time with their other father in his new community. We will all grow in our time apart.

Virginia Woolf famously argued women won’t find a place in the literary canon until a woman can find “a room of one’s own” to write in. A similar principle applies to single dad writer/lawyers who find themselves trapped a small ranch house with three kids, two dogs, and PTSD. 

With the arrival of spring, I’ve coped with the challenges of parenting, writing, and lawyering by going on long walks each day with Bear. (Buster and the children are currently competing for the title of “Weakest Link,” and can barely manage joining us for a short stroll before overheating/ overwhining.) For the last month, Bear and I have averaged walking eight or nine miles every day. Fortunately the kids are flying out next week – the current pace is unsustainable, at least until Fairhaven Runners & Walkers reopens and I can buy new shoes. 

Most days Bear and I loop through campus, the forest trails, or the historic Victorian homes of South Hill. Inevitably we connect with the South Bay trail along the waterfront between downtown and Fairhaven. We make a leisurely stop in Boulevard Park, currently my Favourite Spot in the World. (Wreck Beach remains ineligible for the top spot as a result of the Canadian border closure.) Then we briskly hike uphill to home.

Earlier this week I was sitting on a bench above Boulevard Park, writing in my notebook while Bear self-groomed. I smelled something horrible. This was my first ever encounter with Bellingham’s environmental scourge:  open-topped coal trains. 

A decade ago, the fossil fuel industry proposed building a huge oceangoing coal terminal in Whatcom County next to the oil refinery at Cherry Point. The community successfully squashed Big Coal. Nevertheless, several times a week we endure coal shipments from Wyoming and Montana on the Burlington Northern tracks, making their more-essential-than-chorus border crossing to the Port of Vancouver so they can help Korean power plants warm the plant. 

Bear and I sat and watched five diesel engines and innumerable coal cars go by. The sound and smell thoroughly harshed the mellow of our violated Happy Place. Then the train was gone, and the air cleared. 

This too shall pass. 

Thursday, May 14, 2020

Secret Agent

In the coronavirus pandemic’s continuing assault on civilization, this week the United States Supreme Court held its first public telephonic oral argument. The big question was which quarantined justice flushed a toilet in the background.

Ordinarily, to see or hear the United States Supreme Court in action you’d have to wait in line outside the Court’s imposing building on Capitol Hill. The Court has been resistant to modern technology, with at least one justice saying cameras would enter the Supreme Court’s ceremonial courtroom over his dead body.

In contrast, since 1995 all oral arguments before the Washington Supreme Court have been televised live on TVW, our state version of C-SPAN. My father enjoys watching the justices questioning lawyers at the Temple of Justice in Olympia whenever theres a lull in televised golf and curling. TVW also broadcasts archived legislative hearings and oral arguments late at night. If you’re enough of an insomniac, eventually you’ll see my handful of prior appearances before the Court.

Under Governor Inslee’s “Stay Home, Stay Healthy” order, the Temple of Justice has been closed since April. Like the rest of us (except the U.S. Supreme Court), the Washington Supreme Court has turned to Zoom. TVW broadcasts and records the group video chat. The justices all wear their robes, and appear in their Brady Bunch squares in front of individual green-screened fake courtrooms.

To prepare for my Zoom oral argument next month, I’ve been watching recordings from recent sessions before the Court. I’m worried. None of the other appellate lawyers had dogs and dining room tables in the background – just a few shelves of pompous law textbooks. Eleanor says I should take my laptop over to Grandma’s house and do my argument in front of the Wall of Books.

Reflecting the Court of Appeals’s junior status, its oral arguments are preserved only in audio format, not video. Here’s a link to the recording of the April 16, 2019 argument in my case against Defendants Ogden Murphy Wallace and Patrick Pearce. 

Unlike most appellate courts, the judges of Division One of our Court of Appeals separately read the parties briefs, then “pre-conference” the day before oral argument and discuss the case together. That means the three-judge panel comes prepared with their focused list of questions the lawyers need to answer. It also means they only allow 10 minutes for each side.

As the appellant, I went first. I reserved three minutes for rebuttal. In spite of jitters and PTSD, my opening seven minutes went pretty smoothly. As I recall, the only flabbergasting moment came when one of the judges asked an awkward question that revealed he wasn’t familiar with the one-paragraph 1989 statute the case is about. Fortunately, one of the other judges stepped in and offered a gentle explanation to his colleague. 

Defendants’ ten minutes came next. Team Ogden Murphy assigned the argument to a junior attorney, rather than to the invisible “Great Lawyer” whose name appeared on the pleadings. I can’t tell you much about her argument, or my rebuttal. I haven’t actually listened to the recording. It would be too triggering. 

Washington has a rigorous and transparent procedure for approving government contracts, including a system for authorizing repeated projects by the same vendor. Several years ago, the State invited private firms to bid for authorization to provide various enumerated “personnel services” to state and local agencies. Ogden Murphy Wallace PLLC was one of the successful bidders, and entered into a “Master Contract” with the State. 

Under Ogden Murphy’s Master Contract, state agencies like the Attorney General’s Office are pre-authorized to execute a “Work Order” identifying the “scope and description of work” of a specific project. I’ve already written about the Work Order at issue in my case, which limited Ogden Murphy’s expenditure of taxpayer funds to an investigation into my complaint of workplace discrimination on the basis of sexual orientation.

In January 2017, I sent a letter to Ogden Murphy Wallace outlining some of the glaring factual errors in Patrick Pearce’s investigation report, which had gone far beyond my sexual orientation discrimination complaint. I asked for a meeting with the firm’s managing partner, Geoff Bridgman. All I wanted was a chance to clear my name and salvage my professional reputation.

Mr. Bridgman never responded. Instead, in March 2017, I received a message from an attorney telling me she would be representing Ogden Murphy – Michele Corsi, then a partner in the Seattle insurance defense law firm of Lee Smart PLLC. (Ms. Corsi subsequently left the firm.) In our telephone conversation, Ms. Corsi told me her clients wouldn’t even consider addressing my concerns about the investigation report, because Ogden Murphy Wallace and Patrick Pearce had “fiduciary duties” to the State that prohibited them from responding to me.  

Ms. Corsi’s announcement set off mental alarm bells. Unlike attorneys or other trusted agents, commercial private investigators don’t owe “fiduciary duties” to their customers. To the contrary, investigators are merely subject to ordinary contract, tort, and statutory duties. 

This issue was particularly significant to me. When I pressured into entering a settlement agreement with the Attorney General’s Office in October 2016, I only agreed to release my claims against employees and agents of the State itself – not the investigator who told me he was conducting an “independent” investigation in to my allegations about workplace homophobia. I would never have discussed settlement with the State if I’d thought everyone was lying about Mr. Pearce’s status.

Moreover, as counsel for Defendants knew and knows, the Master Contract between Ogden Murphy and the State is absolutely clear on this specific issue. Paragraph 28 is labelled “INDEPENDENT STATUS OF CONTRACTOR.” It provides:

In the performance of this Contract and any Work Order, the parties will be acting in their individual, corporate or governmental capacities and not as agents, employees, partners, joint venturers, or associates of one another. The parties intend that an independent contractor relationship will be created by this Contract and any Work Order. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever….

Even after I filed my lawsuit against Ogden Murphy Wallace and Patrick Pearce in May 2017, their lawyers continued to suggest Defendants acted as agents rather than as independent contractors. Meanwhile, although the State was not a party to the lawsuit, the Attorney General’s Office assigned Assistant Attorney General Suzanne LiaBraaten to represent the government agencies’ interests in the dispute. Ms. LiaBraaten refused to acknowledge that Defendants were excluded from the settlement agreement’s release provision.

Tag-team gaslighting by two sets of dishonest lawyers triggered additional PTSD symptoms. Nevertheless, the agency issue was central to the case. I therefore amended my complaint, and used all the procedural tricks I could think of to extract Defendants’ concession that they were not “agents” for purposes of the release. 

Unfortunately, my PTSD-addled “big law firm” tactics cluttered the record, overwhelmed our busy state court judge, and nudged the case forward on its doomed course towards the iceberg.

Back to oral argument in the Court of Appeals two years later.

The key colloquy of the morning occurred between Judge Marlin Appelwick and counsel for Defendants. Judge Appelwick started his question by observing that the settlement agreement releases not only the State but also its employees and agents, and asked counsel whether her clients intended to raise the agency issue on remand if they lost in the Court of Appeals.

My appeal briefing had not specifically addressed Defendants’ independent contractor status, because I thought the issue was already settled. Thus, the judges of the Court Appeals had no idea where in the record they would find the Master Contract or Defendants’ acknowledgment, and no reason to know about the independent contractor provision in Paragraph 28. The judges also had no reason to mistrust the lawyer standing in front of them when she said yes, Defendants intended to argue they acted as the Stateagents.

Defendants’ counsel had already stretched the truth a few times in her ten minutes at the podium. But this was too much. I could not believe I was listening to a lawyer blatantly lie to a judge about my case. For the record, her name was Claire Martirosian, of the Seattle law firm McNaul Ebel Nawrot & Helgren PLLC. 

Even after a year of improving mental health, I do not know how I would respond to a similar trigger today. Hence I’ve chosen not to listen to the recording of my Court of Appeals argument. I dont want to sit through the babbling I expect to hear during my last three minutes at the podium.

Fortunately, as painful as it felt at the time, not long afterwards I had the sense to recognize Judge Appelwick’s question actually was a sop to a fellow member of the august legal profession – a loser’s consolation prize. Which was frustrating. Nevertheless, as every experienced Washington appellate lawyer in the courtroom that day recognized, it also meant I was finally winning.

Sure enough, five months later the Court of Appeals issued a published decision in my favor. The Court’s opinion is sensible and straight-forward. The judges weren’t hitting for the civil rights bleachers. At this point I’m glad they aimed instead to create the smallest possible target for criticism or reversal. What matters is the Court of Appeals unanimously reversed the trial court’s erroneous dismissal order, and gave me another chance at justice. 

Poker players have tells. So do lawyers and judges. The most interesting judicial tell in the Court of Appeals’ opinion? Here’s Footnote 3 from the decision:

The parties addressed only whether RCW 4.24.510 required dismissal of Leishman's complaint, and did not address whether OMW was an agent of the AGO and therefore barred under the settlement agreement.

And here’s the Court’s redundant Footnote 5:

Because the issue was not raised below or before us on appeal, we specifically do not address whether OMW was an “agent” of AGO and thus whether Leishman is precluded from seeking relief under the terms of the settlement agreement.

The opinion only has five footnotes. The Court of Appeals wanted to make sure Defendants and the trial judge got the hint.

Zoom argument in my case in the Washington Supreme Court will be on June 9, 2020. I’ll post the link to the TVW video archive. The schadenfreuding sadists among you can watch live. Hopefully well see fewer PTSD-triggering gaslighting lies from counsel. For a couple of reasons:

First, as I mentioned in “Well-Picked Battles,” immediately after the Supreme Court accepted review, Defendants’ insurers fired Ms. Martirosian and replaced her with an experienced and respected appellate lawyer, Paul Lawrence.

Second, on the first page of Defendants’ Petition asking the Washington Supreme Court to review the Court of Appeals’ decision, Defendants finally acknowledged “Pearce and OMW were hired by the Attorney General’s Office as independent contractors.”

It only took two and a half years of importuning before Defendants and their lawyers finally admitted the obvious. Defendant Patrick Pearce never was an agent of my dishonest former employers at the Washington Attorney General’s Office. He was merely a tool.

Tuesday, May 12, 2020

Life's a Beach

We Leishmans are not beach people. At least we’re not beach people as the word “beach” is generally understood:  white sand, palm trees, acres of baking skin, drinks with umbrellas, Zach Braff shooting episodes of “Girls With Low Self Esteem,” college students on Spring Break spreading coronavirus up and down the Eastern seaboard….

Instead, we are Pacific Northwest beach people. This turns out to be a good fit for our pasty Scottish genes. Sometimes we sail or sea kayak, or vigorously hike. Mostly we scramble over rocks, get a little sunburnt, then retreat to the soothing rain forest. Very few of our local beaches include actual sand – we save Cannon Beach or Double Bluff for family reunions and other special occasions. Even then, the sand is never white.  

It’s true I’ve enjoyed vacation trips to Bora Bora, Maui, and Belize. They’re exotic. Spring Break in Fort Lauderdale would merely be alien.

The Canada-USA border has been closed since March 21. Obviously I miss Vancouver Men’s Chorus and Showtunes Night terribly. But by mid-May I should also be visiting Wreck Beach on a regular basis. Everyone is surprised that I haven’t been going through withdrawal.

Vancouver has other great beaches, including English Bay, Sunset, Jericho, Kitsilano, and the entire coastline of Stanley Park. But Wreck Beach is unique. It’s located near the University of British Columbia, at the western tip of Point Grey. The sheltering bluffs conceal the city, so the spectacular view is limited to forests, mountains, sea, and sky. The beach is only accessible through steep but well-maintained trails. This isolation deters the riff-raff, and preserves the community’s hippie vibe.

For the last thirty years, Wreck Beach has maintained its position as one of my top three Favourite Spots in the World. In fact, Wreck reigned as #1 for more than half that time. However, this year the coronavirus pandemic and border closure removed all Vancouver locations from eligibility.

We have a new champion.

Boulevard Park has always been my favorite spot in Bellingham. It’s on the waterfront between downtown and historic Fairhaven, with its narrow strip of lawns and woods squeezed between the water and the Burlington Northern railroad tracks. A curving boardwalk over the bay connects with the city’s amazing network of trails. There’s not much of a beach, but at low tide kids and dogs enjoy climbing over the rocks. 

With the arrival of May, Bear and I have settled into a routine of walking eight or nine miles every day. Buster joins us in the mornings for a loop through campus and the arboretum, but he hopelessly overheats after a couple of miles. Eleanor wakes up a dawn for her grueling solo exercise regimen. The other two kids? Even with the threat of losing phone privileges, they can barely manage a listless skateboard or bike ride around the block. (Usually I just push them out the door with Buster and set a timer.)  

My parents live on the other side of Bellingham, so until recently I wasn’t very familiar with the southwest part of town. As Bear sniffs things and I muse about writing projects, we explore new trails and neighborhoods. Every path inevitably leads us to Boulevard Park, and Bellingham’s equivalent of the invigorating yet soothing view from Wreck Beach.

As a single parent who interacts with outspoken judgmental people, I often get questions like “How would you feel if your children told you they were [gay][Mormon][Republican][liked Cats][etc.]?”  

Last summer my ex took the kids on a roadtrip to Los Angeles and Palm Springs. Eleanor already was a Dodgers fan. Now she wants to go to USC. Her iPhone has an app that vibrates when the UV index goes over 5. (Ironically, she’s my only child without naturally tanning skin.) When we were visiting my parents’ house this week for Mother’s Day, Eleanor proudly showed off her pink burn lines to my melanoma-survivor father.

The other day Bear and I returned from another long beachcombing walk, and found Eleanor on a blanket in the backyard working on her tan. I told her she’s turning into a Californian – about the most offensive thing a Pacific Northwesterner can say to anyone.

Eleanor beamed. Even when intended as an insult, she takes it as a compliment. Deep down she’s already a total Californian. It’s a State of Mind.

Click here for more episodes of Gay Sitcom Dad

Sunday, May 10, 2020

An Importunate Single Dad

from Parables by Nikola Sarić 

Growing up among the Mormons planted the Post-Traumatic Stress Disorder time bombs that my abusive employers triggered decades later. But I also count many blessings from my Mormon youth. For example, I was steeped in the old-fashioned King James Version of the Bible, the greatest Early Modern English text written by someone not named Shakespeare.

Each of Jesus’ New Testament parables has its own traditional name, such as “The Prodigal Son” and “The Wheat and Tares.” The story that opens Chapter 18 of the Gospel of Luke is sometimes called “The Unjust Judge”:

And he spake a parable unto them to this end, that men ought always to pray, and not to faint;
Saying, There was in a city a judge, which feared not God, neither regarded man:
And there was a widow in that city; and she came unto him, saying, Avenge me of mine adversary.
And he would not for a while: but afterward he said within himself, Though I fear not God, nor regard man;
Yet because this widow troubleth me, I will avenge her, lest by her continual coming she weary me.

Usually this story is referred to as the “Parable of The Importunate Widow,” or in recent years, “The Persistent Widow.” I don’t know which Greek or Aramaic words King James’ scholarly committee was trying to translate when they recounted Jesus’ story about the widow who continually troubled the unjust judge. But here are some of the English synonyms that Microsoft Word suggests for “importune”:   pester, harass, plague, annoy, persist, beleaguer, pursue, demand, bother. 

You get the picture.

There are three phases of litigating your way through mental illness.

Phase 1: Traumas

Shortly after I began work with the Washington Attorney General’s Office as Chief Legal Advisor to Western Washington University, I began experiencing strange symptoms that affected my behavior. In November 2015, my new Bellingham doctor determined my debilitating symptoms were caused by Post-Traumatic Stress Disorder. Although my PTSD symptoms were rooted in traumas that occurred three decades before, they were triggered by unhealthy dynamics in my new workplace. 

Meanwhile, I also encountered implicit and explicit homophobia from my employers, as well as from key client contacts like former WWU President Bruce Shepard. When I submitted a sexual orientation discrimination complaint about my immediate supervisor’s misconduct, the Attorney General’s Office hired Patrick Pearce of the Seattle law firm Ogden Murphy Wallace PLLC into investigation my allegations of workplace bias. Instead, the State’s top employment lawyers assigned Mr. Pearce to investigate secret complaints from my supervisors about my behavior. Then they used his one-sided investigation report as a pretext for firing me.

Originally my story was about how the State bungled its response to disclosures about my disability and sexual orientation. These are the kinds of messy legal problems people face in real life every day. Usually there’s no clear written record or obvious explanation for what happened. Witnesses provide insistent versions of the same event. Defendants can always find a paid expert to justify their conduct. (“In my expert opinion, you can’t call what Ogden Murphy Wallace did ‘malpractice,’ because at least Mr. Pearce didn’t accuse you of faking your disability. That was Assistant Attorney General Kerena Higgins.”) 

As a lawyer, I’m often asked if someone can sue their landlord, or boss, or Comcast. The literal answer is yes – anyone with a credit card number can file a lawsuit. But that’s only the beginning. Before a judge or jury can resolve the parties’ messy disputes, you have to endure months or years of expensive and painful litigation. For most people, the costs and risks aren’t worth the fight. That’s how Donald Trump became a “successful” businessman – by lawyering up, then bullying and intimidating his partners, suppliers, and customers.

By the time the State placed me on an abusive “home assignment” in March 2016, my PTSD symptoms made me incapable of representing myself, and barely capable of being a client. With the help of a good lawyer, eight months later I reached a modest settlement agreement with the State that my attorney and I thought would put me on track to reviving my health and career.

Things actually were much worse than my lawyer and I realized.

When I first encountered Ogden Murphy Wallace’s taxpayer-funded investigation report into my sexual orientation discrimination complaint, I thought it all was a terrible mistake. I naively thought that if the right people actually examined the evidence everyone would recognize there’d been a misunderstanding, and my family could promptly return to normal life. I was wrong. 

As I wrote in one of my “Rock Bottom” stories last year, just before my mediation with my former employer I became suicidally depressed for the first time in thirty years. Our family lost our health insurance because the State’s lawyers miscalculated the COBRA deadline. Meanwhile, my former colleagues at the Attorney General’s Office had already begun a campaign to cover-up their co-workers’ malpractice and ethical lapses. Blaming the victim, they besmirched my reputation and interfered with my efforts to find new employment – in violation of our settlement agreement, the Washington Law Against Discrimination, and the Rules of Professional Conduct.

The Unjust Judge

Phase 2: Triggers

In January 2017, I reached out to Ogden Murphy Wallace’s managing partner in an attempt to clear my name. Rather than respond to my letter, instead he hired one of Washington’s most notorious insurance defense law firms, Lee Smart. (The firm’s nickname within the profession is “Less Smart.”) After failing to get anyone’s attention, in May 2017 I filed a lawsuit seeking damages from the lawyer-investigator who lied to me, Patrick Pearce, and from his firm. At this point I was representing myself. I couldn’t afford to pay a lawyer, and any ordinary plaintiff’s contingent fee lawyer would have looked at my case and seen a big huge hopeless mess.

I began my lawsuit with one stroke of good luck, and one disastrous stroke of reality.

My good fortune actually was the result of my industriousness. Or mild OCD. Because Washington is a community property state, when you sue someone you’re supposed to name both spouses as defendants. Lazy lawyers just put “and Jane Doe Smith” in the captions, but I try to identify the correct name. However, the State’s attorney-investigator Patrick Pearce appeared to be an internet cipher. In hindsight, it looks like someone paid an online reputation management company to clean up the embarrassing public record – a service Ogden Murphy Wallace happens to offer to its clients. 

I never tracked down Pearce’s marital status. Instead I connected the dots between various separate news articles and made a juicy discovery. A couple of years earlier, the Chief Hearing Officer at Washington’s Office of Insurance Commissioner filed a whistleblower complaint about her supervisor’s improper interference with pending cases. The OIC hired Patrick Pearce to conduct the investigation – not into Judge Petersen’s complaint, but into trumped-up accusations against the judge herself. Eventually the State paid $450,000 to settle her wrongful termination claims. This discovery immediately changed my case narrative:  allegations that formerly might have been be dismissed as a messy “he said/he said” dispute instead became part of Defendants’ well-documented pattern of deceptive business practices.  

The unfortunate stroke of reality? By spring 2017, I’d begun to understand the nature of my disability, and I’d learned to cope with some of my daily symptoms. Nevertheless, like many individuals who suffer from PTSD, I struggled to respond to stressful social interactions. Just like the Incredible Hulk. On the surface, I appeared to be a wholesome middle-aged Mormon dad. You couldn’t see the deranged obsessions, or the explosive rage waiting to be detonated by bureaucratic lies and lawyerly prevarications. This phase in my mental health was captured in a series of blog essays about my reactions to frustrating customer service experiences with Comcast

Defendants replaced their lawyers from Lee Smart with a new hack insurance defense boutique. Meanwhile, the Attorney General assigned a dishonest and corner-cutting Assistant Attorney General to appear on behalf of the State. Both sets of lawyers tag-teamed me with gaslighting lies and obstructive tactics. I responded by losing my calm and my focus. Unsurprisingly, a busy trial court judge grasped at the slimmest of reeds to get rid of us.

The Incredible Hulk phase of my litigation/mental health experience ended in disaster. Not only did the trial judge dismiss all of my claims under an inapplicable technicality, but he also ordered me to pay Defendants’ legal expenses. At the State’s request, the court also entered a broad order permanently sealing virtually all of Ogden Murphy’s investigation files, rather than considering any of my individual objections to the State’s overbroad and frivolous privilege designations.

However, once again I had the good fortune of discovering written evidence of my opponents’ dishonesty. In October 2017, shortly before they succeeded in getting my case dismissed, Defendants’ attorneys finally produced a copy of an irrefutable “smoking gun” email exchange between the State’s lawyers and their investigator. 

There’s something wrong with the rule of law if it takes two years for the Court of Appeals to correct an obvious procedural mistake by a trial judge. Nevertheless, I put those two years to good use. After submitting numerous requests to the State under the Public Records Act, eventually I located the rest of the incriminating evidence that the Attorney General’s Office and Defendants had concealed. My efforts triggered a new outpouring of obfuscations and lies from two separate sets of sleazy lawyers. 

As usual, the cover-up was even worse than the crime.

Phase 3:  Recoveries

During the last two years I also made significant progress in my mental health. Some improvement was gradual. Eventually I stopped responding to every frustration like the Incredible Hulk. Other breakthroughs came after I passed important milestones, such as my recent string of victories in the Court of Appeals and the Washington Supreme Court, becoming a fulltime single dad, and inheriting a dog.

In “Well-Picked Battles,” I recently offered a few tips for anyone coping with litigation: (1) Find the best possible venue; (2) Focus on what’s important; (3) Seek the most favorable legal standard; and (4) Aim for as few distractions as possible. These days I don’t need to rely on disputed allegations, or “he said/she said” incidents. Instead, every argument I’ve chosen to make in my public filings is based solely on undisputed evidence:  the smoking gun emails and other contemporaneous documents begrudgingly produced by the State and Defendants themselves. 

After four years of hard work, I’ve finally figured out healthy and effective ways for a pro se plaintiff living with mental illness to speak truth to power.

The truth will out. Eventually someone in authority will recognize what the State and Ogden Murphy Wallace did to my family is wrong.

Hopefully they won’t merely condemn these lawyers’ misconduct from sheer exhaustion, like the Unjust Judge in the parable. Instead, someone will finally recognize the truth because it’s the right thing to do.

The Importunate Widow

Tuesday, May 5, 2020

A New Brain

My daughter Eleanor is my most reliable theatre date, at least since Fred died and Dr. Ken moved to California. Occasionally I invite one of my other children to attend with me instead, but it’s hard to find a play that will capture their screen-addled attention.

Last summer I took Rosalind to Vancouver for an evening of Bard on the Beach. The performance was a charmingly updated version of the timeless comedy As You Like It, with a 1960s setting and the characters all singing Beatles songs. The heroine at the center of As You Like It remains one of the Bard’s greatest creations. According to Harold Bloom, if she “cannot please us, then no one in Shakespeare or elsewhere in literature ever will.”

Nevertheless, Rosalind found the play disturbing. The heroine’s name is Rosalind, and my daughter isn’t used to hearing her name repeated out loud that often. Unless she’s in trouble.

I understand where Rosalind is coming from. Because my ex Jason was born the first year of his name’s decades-long reign at the top of the baby name charts, he went through his school years surrounded by guys with same name. To compensate, we gave each of our children names that were uncommon, classic, but not weird. My own name comes from a similar chapter of the Baby Name book. Like Rosalind, Eleanor, and Oliver, I seldom overhear my name referring to someone else.

Except when I’m introduced to rabid showtune fans. They invariably mimic the recording on the guys answering machine in Rent:  “RoGER, this is your moTHER.”

I’ve always relied on lists to manage my confusing thoughts, regardless of whether they involve shopping, legal arguments, or cute guys. 

For example, at the piano bar singalong night in Vancouver each Wednesday, I usually spend the evening noodling over three separate mental lists. The first list involves the evening’s songs. The two piano players, Kerry and Sean, always call for requests. I never comply. Instead, I maintain a secret list of the top three songs I’d like to hear that night. They average getting it right a couple of times a month.

The process of listening to the evening’s songs generates my second list:  which performance of that same song from my four decades of theatre-going would someone else be most impressed by? For example, Sean envies me for seeing the original production of Rent in 1997, but that’s because he thinks one of the actors is hot. 

One night I happened to be sitting next to Kerry’s mum. She swooned over “Losing My Mind.” I told her for my own mother’s 60th birthday I took her to see Barbara Cook in concert. Later I challenged Kerry to top my demonstration of filial piety.

The third mental list rotates each week, although eventually it degenerates from something like “Who would I like to come up and talk to me?” to “Who’s hot?

With the bars closed, Showtunes Night has moved online. Each Wednesday Kerry and Sean take turns playing from their home pianos, with the regular crowd observing and chatting on Facebook Live.

A couple of weeks ago, Kerry saw one of my chat comments, and invited me to request a song. Here’s my response:

Roger Leishman: Same rule as at PumpJack. You're supposed to read my mind and guess my request.
Roger Leishman: However, my daughter says she can get credit in her Zoom high school drama class if you play something from Wicked, Waitress, or Hairspray.
Roger Leishman: Or Mama Mia.
Roger Leishman: I told her she could have the rest of my drink if you guessed my request instead.

I’ve been going to piano bar singalong after Vancouver Men’s Chorus rehearsal almost every Wednesday for several years. Personally, the most devastating consequence of the coronavirus pandemic has been the closure of the Canadian border.

The last time I enjoyed my fix in person, I closed the bar. (Hush, that only happens half the time.) After 1 am, the regulars are mostly vodka-infused rockers. Usually they prefer Sean’s renditions of AM radio classics from the 80s. 

However, Kerry and I are more the showtune type. In his last set, Kerry observed “This is one of Roger’s favourite songs. And in the show the song comes from, it’s sung by a character named Roger.”

William Finn is my favourite off-Broadway composer. Last weekend I spent my birthday blissfully listening to a playlist of Finn’s songs as I walked, wrote, and parented.  

I realized I’d only seen a couple of Finn’s shows in person. I saw the original Broadway production of The 25th Annual Putnam County Spelling Bee in 2004. And years ago I saw a production of Falsettos, which combines Finn’s first three autobiographical plays into a single madcap story about a gay man organizing his son’s Bar Mitzvah with his ex-wife, his former therapist/ex-wife’s new husband, his HIV-positive on-and-off boyfriend, and the lesbians next door. 

I love the original 1990 cast album from Falsettoland. But I also recommend the film of the 2016 Falsettos revival, which featured the original Elder Price, Andrew Rannells, along with Christian Borle and Stephanie J. Block. Eleanor would recognize Borle as the gay composer in the TV show Smash; I saw him on Broadway as a dissolute Tony-winning William Shakespeare in Something Rotten.

As I sat at the computer listening to my playlist of William Finn songs last week, my non-showtune daughter dreamily wandered through the kitchen. Rosalind paused, then said “Papa, why do I suddenly want to watch Into the Woods?”

The “Roger song” Kerry played during my last Showtunes Night in Canada was “I’d Rather Be Sailing,” from the 1998 musical Finn wrote with James Lapine, A New Brain. The show is loosely based on Finn’s own experience at age forty when he was rushed to the hospital for emergency brain surgery, almost died, and slowly recovered.

The character who is a surrogate for Finn iA New Brain, “Gordon Schwinn,” is a frustrated writer. Gordon composes songs for children’s television host “Mr. Bungee,” but he’s blocked in his efforts to finish both Mr. Bungee’s frog songs and his own creative works. Gordon’s long-suffering boyfriend Roger is the one who loves sailing. 

Last week while surfing Apple Music I realized New York’s Encores! staged concert series produced a revival of A New Brain in 2015The cast album features Jonathan Groff as Gordon, as well as Ana Gasteyer as his mother and Christian Borle as Mr. Bungee. Unlike the abbreviated original album I already knew by heart, this marvelous new recording contains the full show, including new and extended songs. 

In A New Brain, the experience of going through profound mental failure helps Gordon both to work through his creative block and to revive his relationships with Roger and others in his life. He changes his mindset.

Before his brain surgery, Gordon tries to finish “The Spring Song” and “The Yes Song” for Mr. Bungee. In the familiar original cast album, they’re mostly sung by Mr. Bungee. In the new Encores! recording, Gordon sings both songs first. They’re lovely and affirming – when Jonathan Groff sings them in earnest, not when Christian Borle or Chip Zien sings the same song as a hammy Mr. Bungee. Each of these encouraging songs eventually resonates with the musical’s happy ending, including Gordon’s reprise of “I’d Rather Be Sailing.”

My epiphany from listening to the expanded score of A New Born (other than the fact that Jonathan Groff is much more appealing than Malcolm Gets): even before he got his new brain, Gordon was on the right track. 

More Showtune Night Stories:

"Missing Marie's Crisis" (5/6/17)

"Get Out and Stay Out" (10/18/17)

"Six Degrees of Kristin Chenoweth" (10/31/18)

"Comfort Animals" (4/24/19)

"I am Third" (5/29/19)

"Spongeworthy" (6/13/19)

"Maybe I Love Showtunes Too Much"  (9/17/19)

"Artificial Emotional Intelligence" (2/25/20)

"Do Gay Androids Dream of Electric Brunch?" (2/26/20)