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 there’s 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 State’s “agents.”

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 don’t 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 we’ll 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.

Common Tragedies

Lawyers are terrible at statistics.

It’s not just because most attorneys majored in soft subjects like political science and philosophy. I love mathematics, even though I'm a lifelong English Major. (At least I love mathematics in the abstract.) Good math skills are an important part of thinking like a lawyer.

But statistics are seldom useful when it comes to the fundamental purpose of any legal system:  deciding exactly who to blame for everything.

It’s not just lawyers. Every human brain is terrible at making decisions that involve very small probabilities. Especially my children’s brains.

After three days of school closures and social distancing, my kids still lack empathy about the global impact of coronavirus. So I resorted to Ritz cracker analogies:

Suppose I give you a box containing one hundred identical-appearing Ritz crackers. Assume four of the crackers are coated with an invisible poison that’s fatal after just one bite. How many crackers would you eat?

My son’s immediate response was “I’m young, so I’ll be fine.”

I had to acknowledge the four percent fatality rate is based on the general population. So I gave him a more focused analogy:

Suppose I give you a box containing one hundred identical-appearing Ritz crackers. Assume one of the crackers is coated with an invisible poison that’s fatal to healthy children after just one bite. How many crackers would you eat?

After thinking for a few seconds, he responded “Probably one or two. Considering how many dodgeball games I’ve won.”

Next I tried my analogy on one of my daughters. She stared dreamily off into space, then answered, “I dunno, it depends how hungry I feel.”

My other daughter is addicted to Grey’s Anatomy. She quickly answered “None” in response to my initial question.

When I gave her the one percent fatality version, however, she paused. “I’d eat some, but I’d have Buster lick them first.”

Click here for more entries from Roger’s Plague Journal

Too Gay

“Implicit bias” refers to the unconscious attitudes or stereotypes that affect our decisions, actions, and understanding without our conscious awareness or control. Project Implicit was founded in 1988 by scientists from the University of Washington, Harvard University, and the University of Virginia. The goal of the organization is to educate the public about hidden biases, and to provide a “virtual laboratory” for collecting data about implicit bias.

Project Implicit’s simple online tests use your individual reaction times to measure how easily your subconscious connects particular attributes with either positive or negative terms. Their website has collected data from hundreds of thousands of people regarding traits from skin color to weight. Go ahead, try a couple of implicit bias tests for yourself. It's worth ten minutes of your time.

Years ago I took the tests for sex, race, and sexual orientation. This week for the first time I took the test measuring implicit bias regarding disabled and abled people. 

Like 14% of participants, my responses “suggested a slight automatic preference for Abled Persons over Disabled Persons.”

Our implicit biases can reveal themselves in other situations, from stroke-damaged brains to tense sporting events and enraged video gaming. Until recently, my favorite examples of personally outing implicit bias all happened during my appearances on Chicagoland talk radio shows. 

When I worked at the American Civil Liberties Union during the 90s, hot-button issues included Illinois’ so-called “Defense of Marriage” bill, as well as our lawsuit challenging government sponsorship of scouting programs because they excluded atheists and “avowed homosexuals.” Occasionally conservative radio hosts would invite me on their shows to discuss my cases. My presence acted as a primitive form of “click-bait” for some of their most rabid listeners. I found that by calmly presenting a few simple legal analogies I could provoke callers into spewing openly racist and sexist sentiments.

I’ve already written thousands of words on this blog about my family’s experiences since I moved to Bellingham to take a job with the State at Western Washington University. As an English Major, I usually see the story as a “dramedy.” The A Plot is about how poorly prepared we all are to deal with mental illness, both individually and as a society. Nevertheless, there’s also a B Plot about the mostly comic challenges facing a gay dad. 

On good days, I’m "Gay Sitcom Dad" instead, and my disability becomes the tragicomic B Plot. On bad days, I can’t help noticing how implicit and explicit homophobia amplify the effects of disability discrimination.  

For example: 

One day at work when I’d been in my new job with the Washington Attorney General’s Office for a couple of months, we were heading to a meeting with Bruce Shepard, then the President of Western Washington University. I was waiting outside President Shepard’s office with my supervisor and three academic employees. I’d already worked closely with all four women. One of the client representatives took this opportunity to ask me about my family. I told her I had a 7-year-old son and two 10-year-old daughters. 

As invariably happens, someone asked if the girls are twins. As usual I said no, they were born two weeks apart and adopted separately, one at birth and the other from the foster system three and a half years later. The girls are very different, and I described one as “ten going on six and still playing with dolls,” and the other as “ten going on sixteen,” then made a comment about wishing I could delay puberty. I’m sure I am not the first father, gay or straight, single or married, who has told someone at the office that part of him wishes his daughter could stay a little girl just a little bit longer.

Afterwards my supervisor took me aside and told me my oversharing was unprofessional. Months later, when my employers were looking for ways to get rid of me, they sent a belligerent letter to my PTSD therapist asking for her opinion on whether this puberty episode demonstrated my judgment was too impaired to practice law. When the State illegally fired me at Western Washington University’s behest, this incident outside President Shepard’s office was one of their stated pretexts. 

Here are some other examples of both innocuous and noxious experiences I had while I was working at Western Washington University for Attorney General Bob Ferguson:

1.     Annual conference for all of the State’s education attorneys. During discussion of campus anti-fraternization and sexual harassment policies, a veteran Assistant Attorney General quoted a faculty member at his college as saying “If we can’t have sex with our students, who will we sleep with?” No one complained about this anecdote or criticized the speaker.

2.     Washington Attorney General’s Office annual all-attorney conference. The conference theme was diversity. Two keynote speeches were by a black attorney who made jokes about stereotypes, and by the new President of the University of Washington. Then-Chief Deputy Attorney General Dave Horn introduced UW President Anna Cauce. I was discouraged when he described her background as a celebrated woman, Latina, and immigrant – but not as an out lesbian. I wondered how many of the 550 attorneys present realized Dave Horn himself is openly gay.

3.     Opening my mail while standing in the doorway next to my supervisor’s office. In Fall 2015, like many other folks affiliated with Western, I received an invitation to President Shepard’s annual holiday reception that included typical “Plus 1” language. As we stood there casually chatting about the Shepards’ annual social tradition, I asked the other attorney in the office if I should take a college freshman to the party as my date. In light of our prior communication problems, I thought that joking about the party invitation would give me an opportunity to demonstrate that I can distinguish between “can” and “should.” (Even if, like Stephen Sondheim or Christopher Isherwood, I someday fall in love with someone thirty years younger than myself, I can’t imagine a situation where I would take this new beau to my first major social event at a new job.) She was not amused. At the end of our short discussion, my supervisor asked me in an exasperated tone why I blurt out things like this. Based on our prior discussions, I understood her to be referring to her concern that I over-rely on humor in awkward social situations. I explained that such impulsiveness is a typical symptom of stress and anxiety.

4.     Holiday lunch for the folks who work in Western Washington University’s law and compliance office suite. We walked down the hill together to a waterfront restaurant located in a local hotel and spa. As my supervisor and the rest of us walked through the lobby, a straight colleague joked that we should all get massages instead. As far as I know, no one suggested he should be subject to discipline for this comment.

5.     Washington Attorney General’s Office finally approved a process for creating employee affinity groups. I contacted the lesbian Assistant Attorney General who was organizing the LGBT group. I described my community advocacy background, and signed up for the affinity group. She asked me to review a draft of the group’s proposed charter. I objected to offensive wording that suggested LGBT people are more likely than others to act unprofessionally. She agreed the office's draft language was improper.

Let’s zero in on the party invitation incident described in Item No. 3, which occurred a few weeks before my doctor diagnosed me with PTSD in November 2015. In hindsight, I recognize my disability was already exacerbating my awkward behavior in stressful social situations. In any event, I did not mean to offend my supervisor, Bellingham Education “Team Leader” Kerena Higgins. I certainly did not believe my rhetorical question warranted harsh employment sanctions – particularly in light of comparable non-gay workplace comments like the above examples. At the time, my employers didn’t suggest they believed so either. 

So I didn’t think any further about our brief private conversation regarding the party invitation. Until my long-delayed performance evaluation on January 7, 2016, when Deputy Attorney General Christina Beusch and Division Chief Michael Shinn included this incident in their shocking and hyperbolic list of accusations about my conduct. They revealed for the first time that the State had included the party invitation episode among its bases for denying me the $3,000 raise given to every other attorney in the office – on the previously undisclosed ground that Ms. Higgins complained about being offended because she has a high-school-aged son.

If Ms. Higgins had said something about her teenaged son during our conversation months before, I would have apologized for unintentionally offending her. I would have expressed empathy as a fellow parent. But I would also have used the opportunity to gently educate her about how singularly horrifying the “pedophilia libel” is to gay people, especially to someone who has spent three decades as an outspoken advocate both for the LGBT community and on children’s issues. 

I’ve been doing this kind of legal work for long enough to recognize clear evidence of sexual orientation discrimination. In particular, I can hear the homophobic dog whistle linking every single gay man to accusations of pedophilia. If there are other employment lawyers out there who think I’m mistaken, feel free to leave a public comment or to email me privately.

As directed by my employer’s written anti-discrimination policy, I drafted a complaint regarding the State's handling of the party invitation incident. I also identified numerous corroborating examples of workplace homophobia I had observed and experienced since my arrival in Bellingham, including some of the above examples.

I did not want to file a formal complaint without first giving my novice supervisor an opportunity to respond to my concerns. Before meeting privately in my office, I gave her a draft describing the substance of my sexual orientation discrimination complaint. 

When we met, I was surprised by Ms. Higgins’ insistence that she had done nothing wrong in connection with our discussion about the holiday party invitation six month earlier. She did not appear to understand me when I explained how much harm the "pedophilia libel" has caused to gay men. She said I was the one who owed her an apology. (I of course apologized for unintentionally offending her.) And she told me I was the one who needed to do a better job of having empathy and putting myself in other people's shoes. 

The next day I submitted my formal complaint that the State had discriminated against me on the basis of sexual orientation in violation of the Washington Law Against Discrimination. As I've discussed at length elsewhere, attorneys for the State made a bad situation even worse. They retaliated against my discrimination complaint by using it as a pretext for illegally firing me based on separate supervisor criticisms regarding my workplace conduct – even as they stonewalled my employment attorney's repeated attempts to seek a reasonable accommodation of my disability. Meanwhile, their investigator was so busy executing his secret assignment (i.e., vilify Roger while white-washing the State) that he never got around to the job he was actually hired to do, which was to investigate my well-documented complaint of sexual orientation discrimination. This is what homophobia looks like in action.

But wait – here’s one more example.

Early in my employment with the State, too many high-ranking folks at Western and at the Attorney General’s Office concluded I was a “bad fit.” Unfortunately for my supervisors, they had a Human Resources problem – everyone also acknowledged I was providing exceptional legal services. To justify my termination, the State had to rely on dubious examples regarding my workplace conduct. Like this gem, which I recently shared with the Board of Trustees of Western Washington University at their December 2019 public meeting:  

When the lawyers at the Attorney General’s Office destroyed my life, they did it to accommodate then-Western President Bruce Shepard’s malice and prejudice. I look forward to sharing the detailed evidence I’ve gathered regarding President Shepard’s role. For now, I’ll point to one specific example, because it happened here in this room. 

I sang with Seattle Men’s Chorus for fifteen years. The Trustees were aware of my participation in the chorus; several of you had attended our concerts. SMC is one of the nation's oldest gay choruses, and one of Washington’s most successful arts organizations. During a public meeting of the Board in 2015, I compared the Trustees’ momentous task of choosing a new university president to the Seattle Men’s Chorus search to replace its conductor for the first time in thirty-five years. 

Documents produced under the Public Records Act revealed that the Washington Attorney General’s Office took adverse employment action against me because President Shepard told them he was offended by my LGBT arts analogy. 

Let that sink in. Bruce Shepard had me fired, in part, because he thought the real-world analogy I shared with you Trustees was too gay. 

As I saw with my talk radio opponents in Chicagoland during the 1990s, scraping the bottom of the logical barrel often reveals underlying prejudice.

During my time at Western Washington University working for Attorney General Bob Ferguson, I was shocked by the “closety” workplace culture, despite the presence of numerous LGBT employees. This attitude reflects deeply rooted societal bias, and too often results in illegal discrimination. Employers generally cannot intrude into employees’ personal lives, and many of my former colleagues are fiercely protective of their own privacy. For example, unlike me, my supervisor did not have numerous large portraits of her children hanging in her office at Western. But inclusion means LGBT state employees, just like employees with nonobvious disabilities, are entitled to reveal our identities and refer to our families during conversations with colleagues and with the public if we choose.

In contrast with visible traits like race and gender, a gay dad has to come out every day. The quintessential “heterosexual privilege” is that a straight lawyer is free to casually refer to meeting his wife and kids after work without raising eyebrows, but if I mention going on a date with a man or describe my family or my chorus, I risk being accused of “flaunting my sexuality” and “bringing up personal stuff.” 

As we saw with the military, “Don’t Ask/Don’t Tell” is an unworkable and immoral disaster. Nothing does more harm to the dignity and mental health of LGBT people than living in a society that explicitly and implicitly demands we stay in the closet.

Begging the Question

English Majors have awesome powers. We can punctuate a sentence without emoji. We know the different between the “plot” and the “theme” of a story. We could correct your grammar, but we usually resist the temptation.

English Majors also know language changes. Thanks to an amazing high school English teacher forty years ago, I can still recite the opening lines of Chaucer’s Canterbury Tales in incomprehensible Middle English (“Whan that Aprille with his shoures soote / The droghte of March hath perced to the roote”). Despite some initial misgivings, I accept that “contact” and “access” can now be used as verbs, even though traditionally both were nouns. I'm an enthusiastic language nerd, not a judgmental curmudgeon.

As a writer, sometimes I’m frustrated by words whose meanings are in flux. Isn’t language supposed to be about communicating a particular idea to other people?

Over the years I’ve adopted several strategies for dealing with linguistic uncertainty. The most important is to identify your audience. For example, ordinarily I believe folks should split infinitives whenever it feels good. The English infinitive form of a verb consists of a phrase that begins with the word “to”: “to write,” “to complain,” etc. Splitting an infinitive means putting an adverb between the word “to” and the main verb: “to elegantly write,” “to constantly complain,” etc. We’ve been splitting infinitives for as long as we’ve been speaking English. However, a couple of hundred years ago a pedantic cleric denounced the practice, resulting in several generations of hyperanxious students. As “Grammar Girl” observes, 

The only logical reason to avoid splitting infinitives is that there are still a lot of people who mistakenly think it is wrong. If you write from a position of power, split your infinitives as much as you want. Be guided by the sound and flow of your sentence. On the other hand, if you have to please others or avoid complaints, it’s safer to avoid splitting infinitives. There's no reason to deliberately split infinitives when you know it's going to upset people.

I’d like to think of myself as a powerful writer. But when I know my audience includes crotchety old men – a demographic that is overrepresented in the judiciary, for example – I edit myself. In this case the language itself never changed. Just snobby attitudes. 

Of course, there are other times when I’m the snob. A large percentage of Trump voters, bless their hearts, use the fake word “irregardless.” Nevertheless, I’m confident even they will understand my intended meaning if I type “regardless” or “irrespective” instead.

Anyone operating in English must live with a degree of ambiguity. Generally that’s a good thing. Language is endlessly flexible. If necessary, we can always use verbal and nonverbal cues to nudge readers and listeners toward our intended meaning – even with contronyms, i.e., words that, depending on context, can have two contradictory or even opposite definitions.

For example, when the word “decimate” was coined it meant eliminating one in ten of something – originally one in ten soldiers in a Roman legion. Nowadays most people use "decimate" to refer to destroying or removing a large proportion of something. As a writer, you can use the context to signal whether you meant to eliminate 10 percent or 90 percent.

Usually it’s not worth the bother. The easiest strategy for dealing with words or phrases that require a lot of extra explanation is to avoid them completely, at least until you’re confident you have an audience who will catch your intended meaning. No one can focus on your message if they’re busy arguing about whether you referred to Yanny or Laurel, or wondering if the dress was blue rather than white. Fortunately English has more words to choose from than any other language in the history of the universe.

On the other hand, the gold standard for elegantly handling ambiguous words or phrases is to craft a sentence that makes sense under either common definition. I was thinking of this challenge last month when I received an odd letter from Solicitor General Noah Purcell, the State of Washington’s top courtroom lawyer. His letter begged the question – what was Noah thinking?

In all my decades of pompous writing, until now I’d never typed the words “beg the question.” The reason for my reticence:  you think the phrase means to raise a specific question for the reader or listener to consider. Go ahead, admit it. There’s nothing wrong with you. You’re just not an English Major.  

What “begging the question” really means is to argue in favor of your proposed conclusion by assuming the conclusion itself is true. The English phrase originally came from an awkward translation of the technical term used by Latin rhetoric scholars for this logical fallacy:  petitio principii. Begging the question is the quintessential example of circular reasoning.

In the Washington Court of Appeals’ opinion last month, here’s how the Court summarized the factual background of my pending lawsuit:

In November 2015, Leishman’s physician diagnosed him with post-traumatic stress disorder (PTSD) and serious codependency. Leishman informed the Attorney General’s Office of his new diagnosis and ultimately submitted a formal request for reasonable accommodation of his disability in February 2016. In March 2016, Leishman, an openly gay man, also filed a complaint with the Attorney General’s Office, alleging that his supervisor, Kerena Higgins, made homophobic comments towards him. Leishman felt that his PTSD was triggered by Higgins’s comments and her micromanagement of his work. During a meeting with Higgins to discuss Leishman’s disability accommodation and Higgins’s comments, Leishman became aggressive, raised his voice, and pounded his fists. [As the Complaint states, this occurred when she accused me of faking my disability. The doctor who evaluated me opined that my response was typical.]

Higgins complained to the Attorney General’s Office about Leishman’s inappropriate conduct and the Attorney General’s Office placed Leishman on home assignment. The Attorney General’s Office retained Ogden Murphy Wallace to conduct an independent investigation into Leishman’s sexual orientation discrimination claim against Higgins, and Higgins’s allegation that Leishman was inappropriate during their meeting. 

Ogden Murphy Wallace drafted a report concluding that “Leishman has not established support for his complaint of discrimination against him based on sexual orientation as prohibited by Attorney General’s Office polices.” The Ogden Murphy Wallace Report also concluded that “Mr. Leishman’s conduct during the March 1 meeting [with Higgins] violated expected standards of conduct for his position as reflected in his job description.” 

I wish I could get my own summary of “My Story So Far” down to a lean 212 words. I’m jealous of Judge Mann’s pithiness. 

Brevity shouldn’t be so hard. As I recently wrote in “The Western Comma,” it turns out my fundamental argument actually is very simple, and quite English Major-y. There should be a period where the comma appears in the Court’s sentence I highlighted above:  

The Attorney General’s Office retained Ogden Murphy Wallace to conduct an independent investigation into Leishman’s sexual orientation discrimination claim against Higgins.

Period.

That’s what the Attorney General’s Office and Ogden Murphy Wallace said publicly when they identified Ogden Murphy Wallace’s assignment as part of the State’s rigorous and transparent contract procurement process. That’s what the lawyers from the Attorney General’s Office and their attorney-investigator told me. That’s what my Complaint alleges. And that’s the only way the rest of the story makes sense. My lawyer would never have allowed me to be interrogated alone for over an hour if she or I had known my employers were secretly looking for a way to justify firing me, rather than asking their investigator to conduct a thorough and independent investigation into a specific complaint regarding discrimination based on sexual orientation.  

It’s true that senior lawyers from the Attorney General’s Office made the mistake of asking their investigator to look into a separate supervisor complaint about my workplace conduct, without amending the contract documents. But that’s not what they told the public, my lawyer, and me. And that’s not what the State’s vendor contract authorized. 

So what’s the State and Ogden Murphy Wallace’s response to the damning evidence? It’s hard to tell – so far all they've ever done is stall and lie. I guess they’d say that when a gay employee identifies evidence of implicit and explicit homophobia in the workplace and his employer hires an outside attorney-investigator to look into his discrimination complaint, there’s nothing wrong with these experienced employment lawyers secretly focusing on a second unrelated personnel investigation topic instead. 

Actually, there’s a lot wrong if a private investigator’s sleazy business plan consists of telling government employees and other members of the public that he’s “independently” investigating Subject X, when the investigator and his agency customers are actually working together to smear their target with dirt about Subject Y instead. This deceptive practice is particularly troubling when it prevents a disabled employee from enjoying the benefit of the employment lawyer he hired to represent him in connection with Subject Y.

That’s why I filed a Complaint in court suing Ogden Murphy Wallace, “Seattle’s sleaziest bottom-feeding law firm®,” and its partner Patrick Pearce. That’s why I fought and won on appeal when Defendants had my Complaint dismissed on an erroneous technicality. That’s why I submitted bar complaints about the lawyers’ unethical conduct. And that’s why I will keep speaking truth to power about dishonest attorneys and abusive bureaucrats – until someone in authority finally begins to listen.

Dos Bros – Washington Solicitor General Noah Purcell 

and his boss Attorney General Bob Ferguson

Back to the letter I received last month from smarmy Solicitor General / erstwhile Attorney General candidate Noah Purcell. Actually I was merely cc-ed. Noah addressed his letter to the judge who wrote the Court of Appeals’ published opinion in my lawsuit. On behalf of the State of Washington, the Solicitor General asked the Court to revise its decision and tone down its description of my supervisor Assistant Attorney General Kerena Higgins’ central role in my termination, in order “to avoid needless harm to a public servant.” Seriously – you can read Noah’s obsequious taxpayer-funded letter for yourself.

After a couple of weeks of Trump impeachment hearings, Noah’s letter makes me proud to be the whistleblower type of public servant, rather than the political hack type who prefers to malign us and cover up official wrongdoing.

As the Court of Appeals observed – and as the Solicitor General necessarily acknowledged in his letter – for purposes of the Court’s opinion “the factual allegations in the complaint are accepted as true.” Opinion at 5 (citing Northwest Animal Rights Network v. State, 158 Wn. App. 237, 241, 242 P.3d 891 (2010)); see also Purcell letter at 3. This includes the Complaint’s amply supported allegation that the investigator chose to ignore extensive evidence of homophobic conduct – because the State’s employment lawyers wanted to instead use the Ogden Murphy Report as a pretext to fire me based on secret complaints by Ms. Higgins and others about my workplace conduct.

Nevertheless, Noah’s letter asked the Court of Appeals to whitewash its opinion and “remove its description of factual allegations made by the plaintiff against an Assistant Attorney General that are untrue.” What evidence did Noah rely on in arguing that Ms. Higgins and her colleagues are the victims of “untrue” accusations of homophobia? “The report prepared by Ogden Murphy Wallace.” 

Anyone familiar with basic principles of logic would know better than to rely on the disgraced Ogden Murphy Wallace Report itself as your only evidence that Assistant Attorney General Kerena Higgins couldn’t possibly have said or done anything improper. Solicitor General Noah Purcell’s letter to the Court of Appeals begs the question – what was Noah thinking?

www.xkcd.com

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