In my case maturation does not necessarily mean attaining any sense of maturity (yeah, work on that one for a while, will ya). It means trading in the 750 cc motorcycle for an 1100 cc crotch rocket V-65 Honda Sabre, fastest vehicle on any long trip. Again, it is out of the box, naked, no doo dads. 1985 sees Honda chickening out of the crotch rocket business for a little while, but theyíll be back. In 1987, full insurance on a $ 6,000 rocket can be as much as $ 6,300 per year in a goofy state like California. Missouriís bugger eating geek senator John Danforth introduces a bill to outlaw what the wuss calls "killer bikes".
A large, international franchisor has just been sued by 65 of his franchisees all over the United States who are tiring of paying royalties now that they know how to run the businesses, and, in a stroke of very sound judgment, he retains me to defend. The immediate strategy is to take as much discovery as fast as possible (interrogatories, document demands, depositions), and learn what, if anything, they have before having to take any serious defensive positions. This turns out to keep plaintiffsí counsel too busy to do any serious discovery against my client, which is another important dividend to the "strike swiftly" strategy. I got to see all their documents in March, deposed all the plaintiffs in the rest of spring and summer in Miami, Orlando New Orleans, Houston, Tucson, Las Vegas, San Francisco, Seattle, Chicago, Philadelphia and Atlanta, all done on my motorcycle. One sends oneís clothes and files ahead by Federal Express, and they await your arrival. As this case is on top of all the other work in the office and everyone is more than fully employed, there is no griping at my decision to do this au cheval. 1986 is a hellacious work year, as I have other trials in other cases around the country as well. But for almost a half year of motorcycle touring, Iíll take on anything. I heard later than some franchisees didnít join the suit because they thought the Hells Angels were defending it. See, you donít always need a three piece suit to be an effective lawyer. I even wanted a new firm letterhead with a picture of rough looking bikers behind the letterhead and the motto "Would We Steer You Wrong", but it was voted down.
To do such a project requires that you coordinate the lives of your friends along the route so that they expect you and party with you along the way, relieving each other, as it were, at certain intervals. Mike rode with me as far as New Orleans where we were met by Joe Mays from Birmingham who rode with me as far as Birmingham on the way to Atlanta, and so on and so forth. After document examinations in Atlanta it was off on a frosty ride to Miami Beach to begin depositions.
People who arenít lawyers, and lawyers who donít try cases, cannot appreciate the difference between cross examination on TV and real cross examination. Really trying to sell a falsehood under oath, with a court reporter taking down every word, and an experienced trial lawyer who has already seen all your files conducting the examination quite aggressively, is a trip into degradation.
Over the years I have learned that the real story is rarely told the first time. A client comes into your office and tells you a story about a business dispute. One of his goals on that occasion is to convince you that his case is so good that you will decide to represent him on a contingent fee arrangement.
Once he knows that he will have to pay money and that exaggeration compounds the expense, the story becomes more focused in its second telling. Here the experienced trial lawyer can and should "gently" cross examine him in private and ferret out a stronger essence of the truth. In so doing, the lawyer must also figure out what the oppositionís case will be, defenses and counterclaims. When you do this well, your client is pissed off, thinks you are a traitor to his side of the matter, and may go off and find a more credulous risk taker to represent him, or, he will respect what you have just done and write a check for your services.
You would be amazed at how many attorneys either donít know to do this or lack the intestinal fortitude or the ability, and who take the case anyhow - you donít have to be very bright to get through law school and pass the bar examination.
The experienced trial lawyer knows that the story will continue its southward journey on three more occasions. It will do so when you confront him with the bad documents which you obtained from the files of the opposition, which the client neglected to tell you about when you asked to see all the relevant files in his possession. It will move further south when opposing counsel takes his deposition under oath before a court reporter under penalty of perjury. Finally, at trial, on the witness stand, the presence of judge and jury adding to the anxiety, the story unfolds in its most truthful configuration at its southernmost terminus. Consider the following actual testimonial squib from a franchise trial in Federal Court (names omitted to protect the author):
Q. Mr. Smith. Iíve heard your complaint about our companyís bad behavior during your testimony on direct examination today, but there are a few questions Iíd like to ask you. For instance, isnít it true that after all these problems you still bought two additional franchises from us?
Q. And on each of those occasions, isnít it true that you appeared before our Franchise Review Committee and were asked specifically whether you had any complaints, or whether there were any problems between us that should get straightened out before we approved you for an additional franchise?
Q. And you remember that those conversations were all recorded, isnít that right?
Q. And isnít it also true that on each of those occasions you told us there were no problems and that you were very happy with the relationship and seriously wanted to invest in more of our franchises?
Q. Well, sir, can you please help the jury and me reconcile your happy frame of mind before our Franchise Review Committee with your very negative testimony this morning?
A. Well, I wasnít under oath then.
In Bal Harbor, Florida, in late March, aggressive cross examination of the plaintiffs in this cycle touring litigation took place in the mouldiest, seediest, worst ventilated, unairconditioned room in the basement of a beach hotel catering to resident, not transient, retirees of significant means. These people hated everyone they didnít know for many years, noise, celebratory activity of any kind, any music faster than four quarter time, casual attire and motorcycles. I, of course, had the good sense not to stay there, but to stay at the Bal Harbor Sheraton next door. Opposing counsel put herself, her files, her client preparation visits (called witness flogging where I come from), and the deposition room in this "Club Dead". There were about a dozen depositions there that week. Thus, in the midst of this funereal ambiance was this very lovely and stylish, professional woman, receiving phone calls mainly from men (her clients) all day and evening, and different male visitors daily. Her repute among the denizens of Club Dead quickly became spectacular.
We had hired the court reporter, and the local court reporting firm sent us the worldís oldest, deafest and most vividly delusional court reporter who, having figured out that it was I who hired him, focused an intense allegiance upon my side of every issue. He would even go up to witnesses in the hall after their depositions and casually remark how terribly they had done and what a lousy case they had and how I was destroying them with every question. While this was not quite as true as he portrayed it, he nonetheless so upset opposing counsel and her clients, who were laboring under the impression that the court reporter was to be a neutral presence (kinda like the carpet), that she and he began a battle royal of accusations, criticisms, letters to the court reporting firm and to the court and to her law firm, threats, opprobrium and hostilities, such that the case itself seemed but a minor contrapuntal rhythm to their main event.
It would be disingenuous to suggest that I did not contribute to this air of upset, disturbance and pandemonium at Club Dead. Among other things, I attended all depositions in "beach attire", since it was, after all, at the beach. Ragged sneakers, faded, torn cut offs, suggesting by their tatters and by their location certain physical attributes and potentialities that, if the truth were known, I might not be able to fulfill, sleeveless tank top shirts with slogans emblazoned commemorating certain porcine attributes, drinking, nausea, human sacrifice, divine indifference to certain issues of immediate social or professional relevance. One evening, under the guise of socializing with opposing counsel, I had had enough to drink to imagine that I was in rare and fine voice, whereupon I gave an operatic concert at Club Dead later described as the moral and artistic equivalent of yelling "Fire" in a crowded theater.
By the end of week one, we were, at least in our own minds, slightly ahead and on our way to Orlando for more depositions, Disney World and the practice by opposing counsel of having all central Florida plaintiffs attend every deposition to reduce the initial shock. Needless to say, we did not arrange for Methuselah to travel with us as the court reporter.
Orlando was followed by a break to go try a case in Alabama for a week or so. The trial notice was short, so I had to fly there and rent a car - yuk. The nice lady at National Rent-A-Car gave me a brand new white, enormous Cadillac that she had been holding for a televangelist who didnít show up, and on the day of trial I totaled it. It looked like Saddam Hussein and Slobodan Milosovic had a homosexual wrestling match in it. Anyway, at the end of that trial, the great ride west began.
Itís an all day very hot ride from Houston to Amarillo in July. Anyone who thinks that all nonessential products compete interchangeably for the discretionary consumer dollar should ride 600 miles in 120 degree heat and at the end of the day see if heís rather buy six chocolate bars rather than six cold beers. Many high cross elasticity of demand assumptions are simply invalid. But day two ended up in that shopping center by the Sangre de Cristo mountains known as Santa Fe, New Mexico. So I shopped, sent a bunch of stuff home, and left the next day.
Straight north out of Santa Fe is the seasonal resort of Taos, but July aint the season, and eventually Fort Carson, home of the legendary Kit Carson, significant for being a wonderful place to turn left along a beautiful route following the Rio Grande to its headwaters then descending magnificently into the best hell raising town around, Durango. They party like Australians at 110 % of capacity (150 % of my capacity). I met a guy names Tequila who rode in on a tractor and out on a mule and got maced in the eyes for refusing to go to bed with a hyperglandular woman at the Holiday Inn pool. They have a Muldoonís saloon there, which gets the town an extra star in Ebrietatis Encomium, and just up the road is Purgatory ski area - an all year kind of area - not for the faint of heart or spirit.
North out of Durango is one of the worldís great motorcycle rides, the so-called million dollar ride through the high rockies, by Telluride on up to12,000 feet where itís barely spring in alpine meadows covered with wild mountain flowers.
Just west of Grand Junction on I-70, thereís an unofficial sign that says Moab, pointing to a road not on most maps that winds through gorges and canyons down at water level for about two hours to Moab. Nobody on that road, no Winnebagoes to pass, and youíre on your late twentieth century horse, in the open air. Moab is world famous for being a place to turn south and ignore, going through Canyonlands Park, Valley of the Gods and Monument Valley, buttes and monoliths sculptured rock formations, rising from a desert floor, reminiscent of old cowboy movies in which opportunists tried to scare the sod busters and ranchers off their land so they could pick it up cheap and profit from the oncoming new railroads.
Just before turning south to go to Flagstaff, Arizona and the south rim of the Grand Canyon, you go through an Indian reservation (I donít know which tribe), bleak, utter privation, land incapable of meaningful response to agriculture, no resources to support industry, not on any commercially significant route or near any urban complex.
The south rim of the canyon should never be photographed. The scale, grandeur, changing colors cannot be captured on film. Film gives but a slight hint, nothing of the experience of rock strata colors changing as the sun mounts into the sky, with a totally reverse experience in the evening.
Arriving at Kingman, Arizona at 2 pm in July or August, to begin crossing part of the Mojave Desert, ranks in stupidity with Mosesí decision to lead the Israelites to the only place in the middle east without any oil. Think of that stretch of road as a 70 mph breeze convection oven with the thermostat set at about 120 degrees. But there is some humor in it. New Yorkers in big Cadillacs who wouldnít obey the signs saying to turn off your air conditioning and open your windows littered the roadside stalled out, with that New York whiny, perplexed "why me?" expression they are so famous for. From Kingman to the Hoover Dam at the Nevada border isnít long in miles, but it do make a man thirsty - as if I needed that kind of help, right. I hardly noticed the Hoover dam in my haste to get to the joint with cold beer four miles further down the road. I would not have traded that cold beer for a night with Meg Ryan.
A night in Las Vegas is also my idea of poor planning - that aint my thing, and, from the movies Iíve seen, I wouldnít go near a lady from Vegas with a cattle prod.
But the next day life resumed its euphoric glow/haze. Out of Vegas before sunup and riding through Death Valley in early morning is moderate and lovely. Arriving at the east face of the Sierras in late morning, about at Mount Whitney, is fucking awesome! Even that certain agony that comes from several days of celibacy couldnít mar that vision of grand natural architecture. The ache would have to persist for a few more days as I lazily mosied through that area and then through Yosemite - lunch en plaine aire in Tuoleme Meadows in Yosemite - deli sandwich and bottle of cool Chardonnay. Then, through Modesto and Livermore where they grow all that bulk wine that never gets sold before its time, and into my favorite place to visit, San Francisco.
Lemme tell you about San Francisco!! Letís start out with a little understatement. San Francisco is the most beautiful city in America. Add to that the fact that itís suburbs include one of the greatest wine producing areas of the world, with not only the great wine, but all the wonderful bullshit that burgeons wherever great wine is made and sold, restaurants, inns, gift shops with all sorts of wino shit (wino shit is also known as oenophile specialty items). Wino shit is highly comedic with its effete, condescending, attitude ware. You think Iím kidding, huh? Consider the following. As in the case of those who fancy themselves connoisseurs of fine art, who go around wearing scarves instead of neckties or just plain old open collar shirts, sport jackets without putting their arms through the sleeves, or even capes, soft beret hats (not the Special Forces berets, mind you), cutsey little geek frog mustaches or maybe even the occasional goatee, winos have their own discreet bullshit ware and bullshit attitudes and bullshit lexicon.
Totally lacking palatal recollection, they do something called "tasting notes". Yes, fool, these little folk actually assign numerical values to differentiated attributes of a mouthful, glassful or bottle full of wine. What do you do when you have absolutely zero connoisseurship? You turn the art, whether graphic or oenoligical, into an object of trivialization. First, you have the lexicon of the pedestrian, double entry accountant method of "enjoying" wine. Now you or I might drink a glass of wine (I never drink just a glass of wine. If itís good I drink the whole damn bottle, and if it aint I spit it out.) Not these little (and they always do seem to be little) bastards. In the lingo of the wine trivializer, wine possesses such attributes as robe, nose, legs and finish. I know you think Iím putting you on, but I aint. Each of these attributes (and for all I know, by now, there may be many more subattributes to which numerical values may be ascribed) receives a numerical value depending upon what the little geek thinks about the wineís performance in that category (or, more likely, what he was told is the wineís performance by someone with whom he dare not disagree without being thought unworthy of a sip).This is actually done in a Tasting Book which the little fellow bought from a wino shit shop, pages all laid out to display in an orderly and consistent manner years of his wine tasting experiences, cross referenced on other pages by varietal type, vintage, vintner, the type of food consumed on the occasion, the after shave the bastard was wearing, the color of his dateís hair and the kind of perfume she/he was wearing, and so on and so forth. These folks belong, of course, to wine societies, at the meetings of which they discuss the trivialities of drinking a 1983 Mondavi Reserve Cabernet at the same meal in which, perhaps, the first course was accompanied by a Hanzel chardonnay; whether champagne should be served first or with desert; how anyone showing up at a "tasting" wearing blue should be put on a shun list forever; whether chaptalization could ever be tolerated in any wine worthy of being sipped at their functions or by any member of their society. I remember a story about a woman in Charleston who was thrown out of the Junior League because she put dark meat in her chicken salad. Same thing. Come to think of it, there was another woman thrown out of the Charleston Junior League for having an orgasm. This accounting of the bullshit associated with wine drinking could go on for many pages, but I think I have illustrated, if not made, my point. As for me, I take the wholistic/holistic approach to wine just as I do with food and the ladies. If I like it I want more, and if I donít I spit it out. I would never ever buy wine to "lay down" so some other guy could get into it after I kissed the bridge abutment at high speed. I buy it so I can drink the sumbitch. How about you?
It never ceases to amaze me that people spend a lot of money and use up precious vacation opportunities visiting third world countries, flying for sixteen or twenty hours to see some half naked, disease ridden woman abuser do the chicken dance on hot coals. If I wanted to observe the third world Iíd have stayed in Detroit. These dumb bastards could have gone to San Francisco instead. Beats hell out of a V-8.
But it must be tough on a straight unmarried young woman to be living in San Francisco. I was told by one of them that their choices usually run from gay and bi-sexual men to married men from the suburbs who will opportunistically stay in town overnight. Sad, huh?
I could go on for many pages about the superlatives of a visit to San Francisco and environs, It has everything that New York boasts, but without the hassle, the filth and the danger. Plus, the geography is magnificent, and the food is better. Of course, if you happen to be some asshole with an agenda that everyone else must arrange their lives by in order for you to be comfortable among them, donít go to San Francisco. Go to St. Louis or Cleveland. San Francisco has some weird mother fuckers, including a group called Dykes On Bikes motorcycle club. But aint that what America is all about - lettin folks do what they want, look how the want to look, be like they wanna be, long as they aint trying to make you do the same? I even hear folks criticizing them for being peaceniks. Hell, if you lived in a place that beautiful, youíd want peace too. If you live in Detroit, Cleveland and places like that, aint no difference between war and peace. The place is gonna be just as dangerous and just as ugly.
Back to the story. Operation take depositions in all the right places paused in San Francisco for a bit over a week, with often humorous results. One client, whom nobody back in the home office of my firm could satisfy, wanted a really effective collection letter to motivate slow payers. I devised stationery with his letterhead on which the bill was printed over a background picture of a Los Angeles cop putting a strangle or choke hold on a very small Asian citizen, with the caption at the bottom of the page quoting the cop as saying to the stranglee "Pay this bill now, motherfucker!" Nobody thought it was funny.
Like I said, back to the story. There is little difference between franchisees and franchisors, certainly not as to issues of mistreatment, opportunism, industry or sloth. But there is a natural tension in the franchise relationship which causes each group to view the other as hardly worth feeding. I know, or at least have regularly observed this from representing both groups many times. I believe this tension arises from an initial period of intense dependency upon the franchisor to provide support in getting the franchisee trained and open for business, followed after several months with a complete change of attitude once the franchisee knows how to operate the business. Then the franchisee looks at the ten year franchise agreement he signed and begins to feel like the franchisor is doing nothing to earn the royalties, providing nothing he couldnít have figured out on his own anyway, and that the franchisor took undue advantage of a moment of weakness to ensnare the franchisee into signing up to a program of enforced servitude. The wonderful part of that is that it makes for a good living for litigators. Yippee!! The sad part of it is that some smart due diligence would have shown the franchisee that, if he had kept his money in his pocket for a year and gone to work for another franchisee, he would have learned the business that way, could make a much more intelligent decision about becoming a franchisee or not, and still have his investment in his pocket if it turned out that he didnít like the deal or the people in it. Why is so obvious a method of due diligence never thought of by people who buy franchises? Eventually, many franchisees try to get even, frequently by under reporting sales and under paying royalties, opening clandestinely owned similar business under other names without disclosing that to the franchisor and complying with contract restrictions on doing that; they get caught, terminated, sued, and their main purpose in becoming a franchisee is frustrated and the economic potentialities destroyed. To be sure, inherent tension exists in every contractual relationship. Somebody frequently believes that the other guy got a better deal and tries to get even. Auto repair shops have that same tension with car makers on warranty claims and with insurance companies on the pricing for repairs. So called insurance defense law firms have for years had the reputation of courting insurance company clients with their mountains of legal business for which they bargain aggressively to very low hourly rates. The firm takes the business because it covers all firm costs, overstaff every project, charge for every two minute phone call (usually a quarter hour, but now getting whittled down to six minutes), breaking everything into its constituent parts and charging for them like they were projects in themselves. Everyone tries to get even. In the franchising business, though, franchise association meetings are religious rituals in which there is the constant chant that everything is always wonderful in this ever improving and burgeoningly profitable heaven on earth, and bestow "entrepreneur of the year" awards like they were passing out condoms at a high school prom.
Everything in San Francisco was scheduled in the hotel in which all counsel were staying, the Holiday Inn in either Chinatown or the financial district, depending upon whether you went and saw where it was at or found out where it was at by referring to the Holiday Inn directory. It is staffed in the main by Orientals, now called Asians, who are exceedingly polite and solicitous if you are a man. Their view of the status of women is appalling, and their treatment of my opposing counsel reflected that attitude, and they werenít even subtle about it. If she paid for a conference room for a meeting or a deposition, the management refused her even simple courtesy. One morning it was freezing in the deposition room and she asked that the air conditioning be moderated, but nothing happened until I asked for the air conditioning to be moderated, upon which it occurred at once. The assistant manager, an oriental/Asian woman, spoke only to me and refused ever to acknowledge even being spoken to by my opposing counsel. If I had been her, I would have dragged the bitch down the hall, away from witnesses, and kicked the shit out of her.
In any event, we ate well. My young associate working on this clientís cases with me, a graduate of the University of Toledo (Ohio) Law School, and certainly no gastronome, told others in the firm that he was throwing up the best food he ever ate in his whole life.
The next stop was in Seattle for the Washington and Oregon plaintiffsí depositions. Seattle is the perfect place to visit in August. The ride was leisurely and up the pacific coast, rocky, cliffs, inland detours to see the redwood forests. By now I am so overwhelmed by natural beauty and splendor that words simply wonít suffice. We are at the point at which all I can say is that you just have to go see for yourself. Seattle is one of the worldís best bargain vacation spots. The local attitudes are really together, the lifestyle is extremely healthy what with all those mountains and forests everywhere. You see the same thing in Bavaria. Everyone walks and there is magnificent mountain and forest scenery. It is an absolutely reliable manifestation of the fact that natural beauty provides such an incredibly positive influence upon the quality of life that to protect it should be among our highest priorities. Soon, Seattle and environs would become discovered by denizens fleeing Los Angles and the PRC takeover of Hong Kong, and the price of realty would go ballistic.
I had so much business on the west coast that I simply left the motorcycle out there and bought another one for general local use, another V-65 Sabre to be sure. I was out there two to three times a month for the next several years. Thank you, Jesus.
I wonder what the next installment of this tale will include. How can anyone be this lucky? What price gets paid for it and who pays it? Clients pay the money, but family pays another kind of price. Nothing is without cost. I have to rationalize that many people have to travel a lot in their work and that it is just another fact of life. God bless and preserve those who could not participate in the enjoyment, were detrimented by my absence and who forgave me for it. In my heart I know that a drawer full of tee shirts is no recompense for an absent and errant father. Do all those who work far from home feel this way? God, how I miss Muffy!
By Seamus Muldoon, Himself
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