Dead Cat Bounce

The Seventh Circuit has spoken and . . . we lost.

Almost exactly ten months (10 months!!) after my argument, the 7th finally got around to issuing the opinion. I figured that because they had kept it so long, that the news was not going to be favorable, but I continued to hold out hope that me might win at least a partial victory on the sentencing issue. I am a little miffed at the way the court handled one of the issues, basically side-stepping our argument and ruling on a much narrower point of law than I continue to believe was at issue, but nothing in the opinion was dramatically unexpected.

For all the worry some people have over criminal convictions being overturned on appeal, the reality of these things that that the appellate courts rarely reverse the trial court. And - and again, in contrast to the T.V.-inspired idea that most non-attorneys have of the criminal process - cases simply do not get reversed on "a technicality." If you hear that a criminal conviction got reversed, it is a good bet that either the court, the prosecuting attorney, or the police really screwed something up. The law is malleable, which is its strength, but also its weakness. If the judges want to rule in a particular way, there is generally a credible argument that they can make which will allow them to do it.

So while I am disappointed, I am not surprised by the court's decision. Only good point is that my colleague at The Firm who took over as the attorney of record will have to take care of procedural hassle that is required to close out the representation. That is the ticket - come in, dazzle the audience, and then make your grand exit before you have to slop out the elephant cages.

Dead Weight

I have been carrying my camera around constantly lately, but I never seem to take any pictures. For going on almost a year now I seem to have lost my desire to photograph almost completely. I am not entirely sure what the problem is, but I think that a good part of it is that I have been in a type of mourning.

In the middle of last year I had a hard drive failure. Correction, a hard drive failure with no recent backup. Correction, a hard drive failure with almost a year gap for any backup. Yes, I know . . . trust me, I know. You can't say anything to me that I already haven't said to myself a thousand times already.

The hard drive that failed was my main data drive. It contained pretty much every digital piece of my life that exists - undergraduate assignments and research, my law school papers and outlines, letters to friends, scans of documents, word files and bits and pieces of various writings, all of my converted CDs and the newer digital only music . . . oh yes, and all my photography.

Up until late 2006 the majority of my photography had been film-based (with a short foray into digital with a Canon G1 several years earlier). I had been scanning film for quite some time, and had gone back and scanned most of my early film photography as well. For the most part, a lot of that was diligently backed up on CDs, and what I did not have backup for on CD was still there, of course, in the slides and filmstrips that I had archived away.

In late 2006, though I started shooting mostly digital, which then very quickly morphed into almost exclusively digital. For whatever reason, I was not very good about keeping backups of this and had not kept any backups of anything shot after about mid-year 2007. Why? I'm not sure, but it essentially boils down to a combination of laziness and complacency. I had hard drive failures before, but had gone a long stretch without one. I was a student on a limited budget and backup drives seemed expensive and besides I had a big spindle of blank CDs that I could use to make backups of all the new stuff I was shooting . . . eventually.

Regardless, when the hammer fell, it caught me completely unprepared - no cd backups, no hard drive backups, no online backups of anything other than reduced-size, edited files, nothing, nada . . . zilch. And here is the part of the story that really gets to me. In the months leading up to that hard drive failure I felt like I had taken several of the best photographs I had ever taken in my life. I'm not saying they were going to knock Ansel, Mapplethorpe, or DeCarava off the map or anything, but they did represent what I saw as real progress in my photography. I felt like I had been stuck at a certain level for a long time and that in those last couple of months I had taken shots that showed I was starting to move forward again. Those shots, as silly as it might seem, were proof that I was growing artistically. I was damn proud of those shots. And now, they were gone. I had a few on-line, small, edited versions of some of the photos on a few sites, but the originals were all on that now useless hunk of metal sitting in my computer.

I was in denial about the fact that these photographs were lost for quite awhile, quite a long while. I obsessively research data recovery services - expensive, unrealistic, unlikely. I tried every esoteric method I came across on the web to get the hard drive to mount long enough to grab even a few of the recent originals - no dice. I would like to say that eventually I gave up. But - and here I think is the secret to understanding my photography funk for the past year - I really didn't give up at all.

I bought a new hard drive. I bought a backup hard drive. I upgraded my operating system so that I could run software that would automatically back up my data every night like clockwork. And then . . . I carefully packed away the failed drive in the box that the new drive had arrived in and set it on a shelf in my office closet - someday, I thought. Someday, perhaps I will spend the money just to see if any of those photos are recoverable. Probably not, highly unlikely . . . but perhaps . . . someday.

And then I did not take one single photograph for six months.

Since the hard drive failure I have probably, in total, pressed a shutter perhaps a hundred times. Perhaps even less. And some of those shutter clicks were to post stuff on eBay! My wife - the woman who I once, for fear that the film would degrade, had to goad into taking out the 36-frame roll of film she had had in her point and shoot for almost three years to be processed, even though, as she argued, there were still several frames left on the roll - has taken more photographs than I have in the same period.

Recently, I have been trying to break the funk. I started carrying a camera around with me again. Right after I upgraded my smartphone to the new iPhone I giddily downloaded a slew of iPhone photo apps that looked "just so cool." (In two months I have taken 3, count 'em, 3 photos with the iPhone, by the way.) But the funk just would not break. The camera stayed in the bag. Or worse, it stayed hanging dead around my neck as I rejected one shot after the next, after the next, after the next.

Then the other day I came home very frustrated. I had taken the camera out again to specifically take some shots, but I had taken only a few and hated each and every one. As I sat in my office wondering "What the heck!?" I realized that I was thinking of that old, failed hard drive and bemoaning the loss of those "beautiful," "breakthrough" photographs yet again. What the heck, indeed.

It was at that point I knew what I had to do. I got up, went to my closet and took out the box with the hard drive. I went downstairs into the shared basement of our apartment and got out a hammer from the landlord's toolbox. A very nice hammer. A very heavy hammer.

I went out into the alley behind our building and opened up the box, taking out the hard drive. I put the hard drive down on the ground, thought for a second . . . and then I beat the s--t out of that thing! Anyone wishing to retrieve data from that hard drive at this point will need a time machine.

"It's dead, Jim." It was very satisfying.

Is the funk over? Not sure yet, but signs are good. Ironically, I guess I missed the chance to document the hard drive abuse and make this story into a little photo essay. But I do find that I am getting that itch to get out trip that shutter again. I feel like getting rid of that hard drive was the equivalent of cutting the cable on an anchor I did not even know was there.

Stay tuned.

The New Gig

So, here I am, back in the land of the gainfully employed. (And very happy to be here, thank you very much.)

I hit the ground running with my new firm on the last week of May -- I was in court on the first day! -- and have been going steady since then. This is definitely a very different experience from my "Big Law" job. My new firm is a small commercial litigation office that also does some probate litigation, a little attorney representation and a dabbling of other types of cases as well. I will be the the sixth attorney and the least experienced associate (which means, lots of routine court calls which now seem very exciting, but will probably lose their luster at some point).

The two partners are both great guys, with the lead partner being a real old-school litigator from whom I think I can learn a lot. Per my entry below, I am excited about the possible opportunities that taking this job opens up, and eager to throw myself back into the practice of law.

First on the list - buy a couple of new suits! Having the one nice suit that hangs behind the door in my office is not going to cut it anymore. Being in court on any particular day appears to be the rule, rather than the exception here. (And I would not have it any other way.) After that - I really need to bone up on the state court rules. Two years at The Firm and I know basically nothing about in-courtroom procedure. (The fact that I am validated in my belief that document review was basically useless for acquiring any practical skills, is cold comfort.)

Big Versus Small (A Shift In Thinking)

The job search has been pretty dismal in general, but is currently looking up and I hope to be able to report good news soon. As I said in the last post, the layoff may end up being a good thing in the end. 

I tend to stay too long at jobs. From background and observation I have an aversion to jumping ship when things get rough, even if it might be the wisest course. One of the good things about being back out on the market has been interviewing with the type of small firms that I did not look at during law school. The law school brings in firms for on-campus interviewing (OCI). As you might expect, these tend to be mid-size and larger firms that do regular, yearly recruiting. I got a ton of interviews through the OCI process, so, at the time, never felt the need to look beyond that resource.

During the OCI interviews, I was never very impressed with the mid-sized firms. They had all the drawbacks of the large firms, without several of the advantages. My experience with the mid-sized firms was projected onto smaller firms in general, leaving me with a poor (and undeserved) impression. However, the recent interviewing that I have done has really opened my eyes and made me rethink things drastically. While the recent layoff is almost certainly coloring my thoughts to some extent, I have been really impressed with what I have seen so far and have been focusing my job search toward firms in the 5-25 attorney range.

At those firms I would be getting into court right away, and perhaps even running my own cases in short order. The big firms provide a lot of support of a certain type, but unless you get lucky and land an assignment on the one plumb project that comes down that year, it can also take a loooooong time to get actual trial experience or even get assignments where you are materially involved in the strategic aspects of a case. The small firm will give you that experience out of the gate, with the added motivational incentive of being put into a position where the possibility of spectacular failure is a very real option. (Of course, there is no chance for spectacular victory without the risk of its opposite.)

I think I know now what would be my ideal setup going forward and long-term, should my career stay in the private sector. I may not get that ideal immediately, but it is nice to have a new frame of reference and a renewed goal in mind.

Funny Thing Happened On The Way To World Domination

I got laid off. 

Come to think of it, that really isn't that funny.

So there is this joke I (used) to tell about how I was surprised when I got called back for an interview with my (now former) firm (henceforth, "The Firm"). I had been so sure that The Firm wouldn't be that interested in me that I had been completely relaxed during my on-campus 20 minute interview - it was a wash out already, I figured, so I just went into it thinking it would be another good practice session, had a very nice and normal conversation with the recruiter, and then didn't think much more about it. The same was true for the call-back interview in The Firm's office in Chicago - no way they were going to hire some old guy with a ton of public interest/government stuff on his resume, so might as well have fun, enjoy the free lunch and hotel room, and not worry too much about it. The "joke" concludes that perhaps there was some mistake that got me through all the screening steps that should have alerted them that I wasn't "one of them" and that I kept expecting that they would realize their mistake and that I would get a little tap on the shoulder and a nice, burly man in grey to escort me from the building. 

On the morning of Friday, February 27, 2009,  I got the tap on the shoulder - although it was really a call from one of the hiring partners and a very civil meeting in my, at that point soon-to-be-former, office and rather than a security guy to escort me out I was given a week to "transition" all of the current matters I was working on. 

But here is the thing about that "joke" - it was almost total bullshit. My way of being self-deprecating about having landed a very nice, very prestigious, and very over-paid job that I felt I was supposed to feel at least a little bit sheepish about. I was a cattle-rancher's son and suburban under-achiever, for crap's sake.

Truth was, though that I loved the job, liked the prestige, and felt like I deserved to be there. I was working beside smart and motivated people from much more impressive sounding schools, but when I looked around I didn't say "crap, I am out of my league," I said "yeah, I think I can take these guys." With the rare exception of a couple of truly mind-blowing legal superstars (and one up and coming superstar), I knew that if I was willing to put my shit down, I could hang. I didn't feel out-matched or out-classed, I felt like I belonged. I still feel that way, although it is a little hard not to internalize The Firm's apparent disagreement on this score.  

So, I have been back out on the market for a little over a month. I fully anticipated being out here again at some point. (Even if I had decided that I wanted to shoot for the partnership brass ring, generally less than one in ten junior associates ever make it through to partner at the same firm that they start in.) I just did not expect it to come around so soon.

The gloss had come off The Firm apple a bit in the last six months. There had never been enough work to go around from the day I started back in 2007, but the second half of 2008 was pretty dismal. Work was extremely thin, and I had never landed a substantial assignment in the area of law that I was most interested in. The politics, bureaucracy and day-to-day bs that comes along with any large organization was even more prominent than it would have been had they been working us all to death (as would be usual, and as we had expected when we signed on). Even still, I had sought out and landed several excellent work experiences - my Seventh Circuit appeal being a particular highlight - and had grown to be very close friends and colleagues with many people at The Firm. While my layoff may still end up being a relatively "good thing" in the end, it would be disingenuous of me to say that I was happy to be laid off, because I most certainly was not. Beyond the financial hit (mitigated by a generous severance package), I continued to be eager to show my stuff. To prove what I knew to be true, that I could hang.

I Get Paid To Do This?

In general, the work that I do on a daily basis isn't glamorous. Forget everything you have seen on television about the life of a lawyer. Television lawyers talk - they argue with opposing counsel in the courtroom, in the judge's chambers, in their office, in opposing counsel's office, they argue with each other, etc. Real attorneys don't actually do that much talking - even, if not especially, the litigators. What we do is read a lot and write a whole lot. We hardly ever get to appear in a courtroom, and even then it is often just for a minute or two so the judge can ask us if we want a continuance (yes, we always want a continuance). We do wear suits . . . but usually only when we have to appear in court, which again, isn't very often.

So my day to day job is often rather tedious - an exercise in staying on task and paying attention to detail. I'm not crafting new constitutional norms or harassing a witness on the stand until they break down and confess. (Trust me, no one was more disappointed than I to learn that this was not normal, everyday behavior.)

But the firm that I work for is pretty generous, and part of that generosity is allowing us low-level associates to do a lot of pro bono work -- unlike some firms, there is no limit on the number of pro bono hours that count toward our yearly billing requirement -- and there is a lot of very interesting pro bono work out there if you want it. I have done, and continue to work on, quite a number of different pro bono matters - assisted a client in obtaining an order of protection against an abusive ex-boyfriend, helped an immigrant who fled from a small African country in order to protect herself and her daughters to navigate the bureaucratic nightmare that is our immigration system and gain asylum status here in the United States, helped another immigrant who was denied adequate medical treatment while in custody seek redress from the people in charge who should have known better, and others. But this year I've had one big pro bono case that has dominated both my time and attention.

It is a criminal appeal before the Seventh Circuit. I was assigned by the Court to serve as the attorney for a man convicted of felony possession of a firearm. It's a relatively simple and straightforward charge, but the facts of his case and his trial were anything but simple and there were actually a number of issues to explore in his case and a strong argument to be made that the handling of his trial had been unjust. Over the course of about six months I -- with great help from some more senior attorneys at my firm -- scoured the record, met with the client (in a very John Grisham-esque scene at the Terre Haute federal facility in Indiana), and put together a brief to the court laying out our arguments for why my client deserved a new trial. The government put forward their response, and we countered with our own reply. -- See. Lots of reading and writing.

Yesterday though . . . yesterday was oral argument. Yesterday, I got to be Perry Mason, Jack McCoy, Eugene Young, and maybe just a touch of Cousin Vinny thrown in for good measure. Oral argument is where myself and opposing counsel go before the three-judge panel who will decide the case and who have already read our briefs, and present our best 10 minute argument for why we should win and the other side should lose. I've been told that you rarely win a case on oral argument, but that its entirely possible to lose one there.

Argument went well. I served my client, and made a good case for his interests. The weeks before were filled with an incredibly amount of stress for a 20 minute total performance, but . . . I must admit . . . it was also a heck of a lot of fun.

So today I'm back, reviewing draft pleadings and reading cases for a memo that I have to write - not very dramatic. Yesterday, though, . . . yesterday was all about the drama. More please!

To be reminded...

. . . of why you miss where you came from, and why you love the new place where you are.

Spent a weekend back in Washington here just a little bit ago. The first of what will hopefully be many annual get-togethers of the Livingston siblings. The two hour time difference did wonders for my ability to get up early and do a little photography before the day got going in earnest. It was cloudy and gray almost the entire time I was there - iconic Western Washington weather. I hadn't realized how much I've become accustomed to the landscape and foliage of the Midwest. Wandering the fire roads near my parent's place really did feel like reacquainting myself with an old friend. It's gorgeous county, but not without it's flaws and idiosyncrasies - just like Indiana and Illinois.

I loved the trip and had a great time getting back up to speed with the family. I'm looking forward to the next time. But I have to say that -- for the first real time since I've moved from the West to the Midwest -- stepping out into that hot, humid morning at O'Hare didn't feel like walking into some curious and alien place - it felt like coming home.