In his intriguing new historical novel, Then Everything Changed, political commentator Jeff Greenfield posits how events might have played out under three different scenarios: had Lyndon Johnson been elected president in 1960; had Robert F. Kennedy survived an assassin’s bullet and been elected president in 1968; and if Gerald Ford had won the 1976 election.

I will not spoil Greenfield’s masterful work by detailing his alternative history. Rather, I mention the book because it has spurred me to think of “what ifs” both historical and personal, an exercise that sparks my imagination and makes me feel grateful.

What if Clement Haynsworth or G. Harrold Carswell had won Senate confirmation to the Supreme Court? President Richard Nixon would not have had to resort to his third choice, Harry A. Blackmun, who wrote the high court’s opinion in Roe v. Wade.

What if Ralph Branca had walked Bobby Thompson and pitched to the next batter (a rookie named Willie Mays)? The New York Giants might not have won the 1951 pennant.

What if Florida had electronic voting on Election Day 2000? President Gore, perhaps.

What if Jeffrey Maier had left to get a hot dog when Derek Jeter was at bat? A banner might be flying in Baltimore.

What if she weren’t in her sorority house to take my call? But I digress.

Please submit your “what ifs.”

Happy Monday. Here are some law links to get your week started.

• Lawyers, remember this: Workplace bullying is not cool. And, if legislation passes, could get you in trouble.
• If a picture is worth a thousand words, is a bad set of pictures worth a $1,000 verdict?
• DLA Piper asks judge to quash subpoena served on the firm seeking docs in the criminal prosecution case of former baseball great Roger Clemens.
• Oh snap, you got benchslapped.
• Cure for the frivolous lawsuit could be worse than the disease.
• American Legal Funding gets cease and desist from Maryland Department of Financial Regulation.
• Conservative justices have feelings, too.

The Washington Post and New York Times‘ recent coverage of Justice Clarence Thomas‘ nearly five years of silence during oral arguments reminds me of the story of the 5-year-old girl who had yet to speak a word.

Then, one morning, she says to her father, ”Daddy, the oatmeal is cold.”

The delighted dad blurts, “Wow, that’s amazing. Your first words — and a complete sentence at that. But why, why did it take you so long to speak?”

“Up until now, everything’s been fine,” the youngster responds.

Like the father to his daughter, I, too, can recall the times I heard Thomas speak during oral arguments. And, as in the case of the daughter, on both occasions the justice’s comments were memorable for their clarity and authenticity.

Read the rest of this entry »

Did you know John Marshall, the former Supreme Court chief justice, kept a whoopie cushion under his desk for “special occasions”? Or that early 20th century Justice Rufus Peckham would occasionally appear on the bench as his alter ego, Doofus Peckham, complete with Cockney accent?

OK, so maybe the justices are not that funny. But a new scholarly paper (enjoy the title) suggests laughter during the court’s oral arguments a bit more common than you might expect and that “it serves to diminish and lessen the formal control and power barriers.”

Ryan A. Malphurs, a litigation consultant whose findings were part of a dissertation, tracked 131 instances of laughter during the court’s 2006-2007 term. Antonin Scalia was the funniest justice by far, accounting for almost half of the laughs. Less than a fifth of all laughs were directed at a lawyer appearing before the court, leading the Washington Post’s Robert Barnes to write: “Dear lawyers: Supreme Court justices are not laughing at you. They are laughing with you.”

Both Barnes and Malphurs refer to the court’s “guide for Counsel,” which warns “attempts at humor usually fall flat.” Malphurs gives one example I had not known about:

Infamously, Jay Floyd in Roe v. Wade began his opening argument with a failed joke that set the tone for his argument, “Mr. Chief Justice and may it please the Court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” Pausing for the justices’ laughter, and gaining only cold silence, Mr. Floyd struggled to gain momentum through the rest of his argument.

Maybe Floyd should have gone with the one about the judge who walks into a court wearing only his robe…

Happy new year! Back to work after an extended vacation? Don’t worry, so are most of the bloggers. Check out these law links to see what you’ve missed.

• When will they learn? Two lawyers sending nasty e-mails back and forth in Florida have been sanctioned by the state’s supreme court. That will teach these guys to hurl their insults in person instead of over e-mail.
• Will the filibuster rule get changed this week?
• Don’t neutral paint colors just scream strip club to you? Apparently not to these clubs in Fort Worth.
• Get a haircut and get a new job.
• In the new year, Chief Justice John Roberts asked for a little less partisanship when it comes to the court.
• “Witch” is officially a regulated profession in Romania.
• Recession hurt law firm diversity.

It’s the day after Halloween. If you’re still coming down from your sugar high, here are some law links to help you sober up.

• Do non-compete clauses stymie innovation?
• Would you vote for a 25-year-old candidate for state’s attorney? Once upon a time, Baltimore County did just that.
• The Underdog blog thinks cops shouldn’t act the john in prostitution stings.
• The Maryland Court of Appeals says cell phones are allowed in courthouses. The one exception? No mobile phones in jury deliberation rooms.
• A Texas lawyer was granted an emergency continuance last week so he could attend game 1 of the World Series in San Francisco. Too bad the Rangers lost that night.
• The video game industry will be at the Supreme Court Tuesday, fighting to protect their First Amendment rights.

Two items of interest from the November Issue of the ABA Journal (at least to me):

• The cover story is about how a 33-year-old solo practitioner in Cleveland named David Mills will be arguing his first case before the U.S. Supreme Court on Nov. 1. The story provides a blueprint of sorts for building an appellate law practice. To say Mills was a longshot is putting it kindly:

“His law office is located in a spare bedroom in his apartment. He has no staff, except for his part-time paralegal, Elisabeth, who goes by another title: Mom. His client, for payment, offered him the title of her Jeep and made him an afghan.”

• Some people aspire to have buildings named after them. Me, I’d rather follow the lead of Bruce Freitag, who had a portable toilet named after him. Freitag served as longtime counsel for Porta-John Industries; the Freitag Comfort Station has hardwood floors, a skylight, working sink and ceramic toilet that flushes. The company’s CEO said they named it after the “classiest guy” they knew.

Another Monday on the books. Here’s some light reading to start off your week in the legal know.

• One newly divorced couple says that just because the marriage didn’t go on forever, doesn’t mean it was a failure.
• There’s a time and place for sarcasm. It’s probably not a good idea in the courtroom.
• Strong face = strong profits.
• Tribune Company creditors have been given the go-ahead to sue Sam Zell.
• Rep. Peter DeFazio (D-Ore.) is looking into articles of impeachment against Chief Justice Roberts for the harm done in the Citizens United decision.
• Carolyn Elefant revels in the beauty of the retainer letter.
  
• Would you like fries with that? Connecticut law firm opens an office with a drive-thru window.

If it’s the first Monday in October, it must be the first day of the Supreme Court term. Check out retired Justice John Paul Stevens’ chat with NPR’s Nina Totenberg on the one vote he regrets. And, without further adieu, on to the law links:

• Are recreational activity torts making a comeback?
• Can a green coating under your tongue prove that you’ve been using marijuana? Jon Katz at the Underdog blog calls it junk science.
• Page Croyder reflects on last month’s Baltimore state’s attorney election.
• The Maryland Law Review wants to let its work evolve through conversation — adding taped interviews with profs and taped discussions between themselves about the articles.
• In Europe, fathers should be entitled to breastfeeding leave too.
• The San Jose Mercury News takes a look at Gloria Allred’s use of the media (ht Legal Ethics Forum).
• This one’s hard to believe.

Well, it looks like fall has arrived. Here are some law links to ease you into this rainy Monday.

• If Washington’s law firm revenues are any indication of how regional firms are doing, it’s a mixed bag.
• President Obama still can’t get his judicial nominees confirmed.
• We told you a couple weeks ago about a South Carolina lawyer who was admonished by the state’s Supreme Court for having sex with a client’s wife. The Maryland Lawyer Blog points out that in South Carolina, the admonishment came without mention of the lawyer’s name, but, try that in Maryland, and the Court of Appeals will be pointing fingers, and naming names.
• No more excuses for poor voir dire prep. Just use your laptop.
• Was Stephen Colbert’s appearance before a House committee in character pointed or pointless? Readers of Concurring Opinions disagree with the blog.
• The Supreme Court will start its session next week with tests on free speech.
• British copyright infringement firm’s files hacked.