Commentary from a practical perspective
page includes posts from August 25-31, 2002 in the usual reverse order. Each week's
postings on the home page are perma-linked to these pages.
Whats in a number?
A little over five years ago, I came up with an idea for a new golf business. I would use a recognized USGA statistical method to redistribute the handicap rankings on golf courses. The concept appealed to my interests in fair play, statistics, golf, free enterprise, and trying my hand at something other than legal matters.
I started Hole By Hole in early summer 1997, and among other start-up activities went searching for a post office box for the new venture.
I didnt realize at first how difficult that little task would become. My preferred location at the Rehoboth Beach Post Office had a long waiting list. So did my next choice, in Lewes.
Fortunately, I was able to find a box at the little post office at Nassau, a few miles north of my home. The fact that the hamlets name is also the title of a common betting game in golf seemed like a bonus.
The postmaster rented me Box No. 88, and I was underway.
That side business is still chugging along, although its mostly now a golf book review site and a handy place to archive the golf columns I write for The Cape Gazette. (Thus far the response to the idea of re-evaluating whether Hole No. 5 should continue to be a golf clubs number 1 handicap hole has been distinctly underwhelming.)
When I started SneakingSuspicions.com this January, I thought about the need to provide a wide range of ways for interested readers to contact me. It made sense to simply use the same P.O. Box 88 that Id been using for Hole By Hole these last five years, so I did.
This week I read a post by Susanna Cornett about the number 88 that truly surprised me.
Apparently some neo-Nazi types have adopted a stylized "88" as their little emblem. Now there's a controversy about hats and other clothing items at Target, among other places.
The little dears.
At first, I was just flabbergasted. As I wrote in the comments section of Ms. Cornetts post, the first thing I usually think of when I see that number is NASCAR driver Dale Jarretts car. It never occurred to me that some fools would be using the number for their own peculiar purposes.
Ill bet Mr. Jarrett is every bit as pleased about these clowns using his long-time racing number as I am about the possibility that somebody could think that my long-time use of Box 88 expressed some kind of solidarity with the Nazi movement.
Part of me says I should contact the postmaster and ask to move my box assignment to some other number. The other part of me argues against that reaction.
Besides the expense for new stationery, updating the web sites, and so on, theres another reason Im not inclined to abandon my little P.O. Box 88.
If there are any neo-Nazi goofs around here, I wouldnt want them to get their evil little hands on it.
Theres no sense surrendering a number to these people just because theyre messing with it.
And speaking of golf, here's this week's column, if you'd like.
The "Officials Said" Seriestm
Today begins a new, intermittently updated series of stuff to snark about journalism. It highlights stories that employ the overused, vaguely passive term, "officials said".
Of course, now that I have highlighted the phrase, you'll start seeing it everywhere as you peruse the newspapers or the Internet.
This phenomenon is similar to what happens when you buy a car that you think no one else in your area has yet purchased.
Anyway, here are the first two:
Reassurance I didnt really need
I cant add much to this one. Enjoy:
Imagine our relief.
Annals of Best Management Practices in Construction
Boy, you forget to make one final double-check on the paperwork, and all heck breaks loose:
Im so glad the officials could explain the situation for the rest of us.
So Terry Oglesby and I were trading a few e-mails about college football and rivalries, and something he wrote reminded me of a story.
The Penn marching band was playing in the middle of the field. As the host musicians tootled along, the Brown band members laid down along the field edge, on the Brown side of the stadium.
They formed the word BORING in human letters, while leading a loud chant using the same word.
For a minute I thought that the Penn tuba players would drop their instruments right there on the turf and wreak some Quaker vengeance.
Then again, it was a bunch of Quakers.
Three Claudes for Baretta
Sometimes an interesting story hides underneath a remarkably dull headline that does absolutely nothing to attract the reader.
It happened again late Thursday night with this three-Claude winner:
That utterly banal attempt at grabbing attention just lies there like a car-flattened toad, now doesnt it?
The AP report is actually pretty intriguing, detailing a long interview with the accused actor.
Blake apparently decided to talk notwithstanding others advice to keep quiet pending the upcoming trial.
Based on what I read, it may be a decision he later regrets.
Pay no attention to the man in that videotape
The Second Circuit Court of Appeals issued an interesting opinion yesterday concerning the limits of expert causation testimony in a xylene exposure case.
The appellate court upheld the District Courts decision to exclude the plaintiffs expert witness testimony, under the Daubert principles. (For the non-lawyers reading this blog, the 1993 Supreme Court Daubert case deals with the rules of evidence that permit scientific and technical testimony to be presented in a trial.)
This case is a very good example of how those principles should be applied appropriately, but thats not why Im writing about it.
Instead, theres another point or two to be gleaned here that I find even more interesting.
Nikitas Amorgianos and his wife filed suit against Amtrak, alleging that he suffered from work-related injuries stemming from his work as a bridge painter. The claimed injuries were pretty serious:
The jury ruled in the plaintiffs favor, granting a broad range of monetary relief totaling over $3.3 million.
As one might expect, Amtrak was not happy with this result.
The railroad corporations attorneys moved for a new trial, and pointed to a series of fairly damning facts put in evidence in the case to support their argument:
The trial judge sided with Amtrak in his post-trial decision, as noted by the Second Circuit:
The appellate judges had little difficulty in agreeing with the District Court:
I believe there are at least two points to be made relating to this part of the decision.
First, the ugly yet mundane facts suggesting fraud may have played an unstated but critical role, influencing how both the trial judge and the appeals court also dealt with the technical evidence issues. It sometimes bears reminding that judges are human, and will react to proof that someone is trying to abuse the system over which they preside.
The second part involves my penchant for using the Wizard of Oz as a resource for analogies to real-life situations
In this case, I can imagine the plaintiffs attorney arguing to the trial court something along the lines of "Pay no attention to that man in the videotape", similar to the Wizards own efforts at avoiding detection.
It didnt work in the movie, either.
Wretched Red Excess
My wifes tomato patch suffered during this years drought. The combination of record-setting dry weather and some occasional forgetfulness about watering the plants kept the harvest down quite a bit compared to some prior years bumper crops.
In contrast, the folks in the small Spanish town of Bunol apparently had more than enough rain for the tomatoes needed for their annual exercise in wretched red excess:
There were no indications in the Reuters report of any counter-demonstrations by the vegetable rights movement.
Perhaps they were all busy down in Johannesburg.
Beavis and Butthead on Patrol
One professional practice tip to which I always try to adhere is to never present an argument that makes me grin while stating it. Its a good way to keep ones focus on making effective points, while avoiding damage to ones long-term credibility.
Self-assessments can be flawed, however. There have been occasions, thankfully rare, when I have been on the receiving end of an arched eyebrow from a judge as I argue a case before the court.
One advantage in exhibiting this physical signal of total disbelief is that it doesnt appear in the transcript. It therefore gives the offending but perceptive attorney an opportunity to save face and drop a faulty line of argument, before the judge says something on the record that could be even worse.
In reading a decision handed down yesterday by the U.S. Fourth Circuit Court of Appeals, I had to wonder if the attorneys for both sides saw any such facial expressions among the three-judge panel they addressed in oral argument.
In the pre-dawn hours of August 17, 1996, three police officers from Prince Georges County, Maryland answered a complaint about a noisy disturbance at an apartment complex. Lieutenant James Rozar, accompanied by officers Antonio DeBarros and Kevin Hodge, found three men drinking beer, including Mr. Nelson Robles. Robles had an outstanding traffic warrant issued by Montgomery County, and so the police took him into custody without incident.
There was a long-standing informal practice of prisoner exchanges between the two county police departments, at agreed-upon locations at their borders. Nonetheless, the PG officers felt they were on the receiving end of a run-around from Montgomery County that night, as they tried to unload Nobles.
Not to be outdone by their Montco counterparts, Lt. Rozar and Officer DeBarros developed a plan to deal with their prisoner.
Unfortunately, it was a really, really stupid plan:
The Fourth Circuit noted that this Beavis and Butthead approach to law enforcement had its effects:
In the inevitable lawsuit that followed, however, neither side distinguished themselves.
The plaintiffs attempt to find the defendants liable under federal due process and civil rights protections failed. The original jury found in Robles' favor on a separate state constitutional due process claim, however, and awarded him a total of $647,000 in compensatory and punitive damages.
Not satisfied with that verdict, the plaintiff sought a new trial and a reconsideration of the district courts pre-trial grant of summary judgment to the defendants relating to qualified immunity.
The trial court ruled against Robles, and instead granted a defense motion for a new trial if Robles failed to accept a reduction in the total award to $240,000.
Robles refused to take the lower amount. The matter went to trial once again, limited to the question of damages under the state constitutional provisions. This time the jury awarded the plaintiff a grand total of $40,000, of which $10,000 was assessed against PG County as punitive damages.
Robles' counsel also tried for attorneys fees under 42 U.S.C. Section 1988. The trial judge determined that Robles didn't qualify, however, because he failed to win any relief on his various federal law claims.
On appeal, the Fourth Circuits unanimous opinion includes some fairly pungent commentary about the police conduct:
The Court also found fault with the plaintiffs attempt to overturn the district courts decision that the original jury verdict was excessive:
The appellate court also upheld the determination that Robles was not entitled to attorneys fees. Based on the two trials and the record references to the pre-trial proceedings, this was an separate yet significant loss for the plaintiff.
The Circuit Court added a touch of salt to Robles wound with its additional determination that the second jurys $10,000 punitive damage award against PG County could not be upheld under the applicable state law.
In sum, the plaintiff couldnt hold onto a $647,000 verdict, turned down the chance to clear $240,000, and ended up with $30,000.
The appellate opinion concluded with an appropriate commendation to the district court:
Im just glad I wasnt forced to argue the appeal for either side of this ugly case.
I dont need to see another arched eyebrow.
The principle of intended consequences
Im interested in this issue for professional reasons. I recently drafted portions of legislation that expanded the red-light enforcement program within Delaware [follow the links to House Bill #600, 73 Del.Laws, c. 350, Section 92].
Ten intersections within the City of Wilmington are already set up with red-light cameras under a city-sponsored program. The new legislation adds ten locations to Wilmington, assigns ten more locations among four other cities, and directs my clients to install ten more such systems among the signal intersections it controls outside city limits.
I'm now working with my clients and other representatives from cities and other state agencies on this project.
In addition, as readers of a recent post on this site are well aware, I recently developed a keen personal interest in rear end collisions.
If the Car and Driver story is accurate, I really have to wonder why the Institute would fool around with the accident statistics involving this new technology. It seems pointless at best, in addition to being of questionable intellectual honesty.
As for the futility of fudging this data, I dont understand why the Institute wouldnt be satisfied with using commonly accepted definitions for accidents and their causes at these intersections. The organization could still make an effective argument for the use of red-light camera enforcement, despite the potential for an increase in rear end collisions.
For example, the placement of the famous Jersey barriers within medians in one sense "created" more injuries, from cars bouncing off of them. On the other hand, the high-walled concrete sections also significantly reduced fatalities from head-on collisions.
In addition, guardrails along highways frequently protect drivers and their passengers from vaulting into space, where the highways' side slopes cant provide a safe place to recover. Nonetheless, the blunt ends of guardrails were frequently the source of many deaths and serious injuries. New blunt end treatments called attenuators cant and wont prevent all injuries from a nasty bit of aiming, but they usually prevent deaths.
Similarly, side-impact incidents at intersections, or "T-bonings" as they are often called, are typically far more deadly than rear end collisions. One of the primary reasons for installing the red-light camera systems, from a safety perspective at least, is to help prevent deaths and major injuries from T-boning.
Therefore, Im not at all surprised to read that the red-light cameras
as quoted by Car and Driver.
Theres nothing "mere" about that fact at all.
In addition, the Charlotte segment of the story raises its own questions. For example, I cant tell from the quote whether the relatively stable total number of accidents is limited to the intersections using the camera systems, but it doesnt look like it. On the other hand, the piece also notes an increase in rear end collisions. That means the number of some other type of accidents must have gone down, presumably including at least some of the dangerous T-bone variety.
It could be that someone was trying to claim an "overflow" effect in the Charlotte story. Under this theory, the presence of red-light systems in parts of a city's network inevitably leads to reduced red-light running elsewhere.
I would need to see some serious number-crunching before I bought into that claim. It just doesn't fit any intuitive sense of what are sometimes euphemistically called human factors. The theory also strikes me as just a tad too "convenient" for red-light camera advocates, in a Dana Carvey sort of way.
There are other policy issues concerning red-light camera technology that are well worth debating, not least of which is the question whether revenue considerations take precedence over other goals in a particular locale. Nonetheless, from a safety perspective, the fact that the cameras hold out the real promise of reducing serious injuries and death can be a effective counterpoint to the fact that they may also result in additional, predominantly minor accidents.
In other words, these red-light enforcement systems actually help illustrate the principle of intended consequences.
August 25, 2002
It's another travel day, this time only about 225 miles round-trip.
Let's hope it's completely uneventful.
Meanwhile, there's a new golf book review available for your reading pleasure, discussing Michael D'Antonio's fine history of the 1972 PGA Tour season.
Arnold Palmer, Jack Nicklaus, Gary Player, and Lee Trevino are in their prime.
Nixon and Wallace are in cameo roles.
Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.
That fact may become obvious later on, but it needs to be said here anyway.
© Frederick H. Schranck 2002