Who wants to talk about 1988?

The Onion AV Club, where all serious hipsters, such as myself, go to learn what they think about everything, has an ongoing feature called "Better Late Than Never." In BLTN, AV Club staffers watch a movie or read a book that pretty much everyone except them has already watched, read, discussed and disposed of. It is sort of Jim Gaffigan's bit about watching the movie Heat come to life. Since the AV Club tells me everything to think (although I don't think I should be blamed since, by and large, the movies they like I like and the movies I hate they hate), I'm going to steal their bit and talk to you about a book that came out when I was still in elementary school. That book is Friday Night Lights by H.G. "Buzz" Bissinger.

Despite the absurdity of an adult going by the name Buzz or Mr. Bissinger's rather cantankerous views on blogs and the Internet, I was thoroughly impressed by his book. I am now sporting a bruise from hitting myself in the forehead so often in exasperation as to why I did not read it earlier. However, as I have thought about it further, I think that maybe now is the best time for me to read the book.

There is nothing normal in this book. It is mind-bottling that in 1988 a high school spent $20,000 to fly its team to an away football game. It is similarly mind-bottling that high school teams did - and still do - play a 16-game season if they get to the state championship; that a team from a dusty West Texas town could compete at such a level with such consistency for so long; that some of the people in the book espouse attitudes that would have sounded racist in 1888, let alone 1988; that anyone could care as much about anything as the people of Odessa did about Odessa Permian football.

But what Bissinger does - and any good sports book does - is tell a story that is really not about sports at all. The idea of "sports as a prism for society" is a theme of almost every sports book that gets published, however, in most instances it is so nakedly presented and wildly misplaced and misunderstood as to be ridiculous. However, Bissinger weaves his tale seamlessly.

Despite my best attempts to fake it, I have difficulty reading books that are dense and boring. (Unless I'm being paid to do it, in which case, my abilities improve greatly!) As a result, I find sports books quite inviting, and my favorites are those that can tell me something more than just who caught a winning touchdown pass. And I think in the case of Friday Night Lights, it is the greatest sports book I have ever read. SI ranked it number four, but for me it is number one. (That is a great list. By my recollection, which is poor, I have read 4, 6, 7, 8, 10, 13, 20, 25, 31, 48 and 70. Not bad, but not great)

I have never watched FNL the movie or the television show, although I have heard they are good. But this book needs no dramatic rendering - it is ceaselessly dramatic. The reason that I am glad that I waited to read the book is that it allowed me to think about my own high school experience now a decade gone by. I am thankful that I didn't have to attempt to succeed in the kind of environment that existed at Odessa Permian and I cannot understand the actions of the adults who condoned it. However, for those who survived and definitely those who thrived under the lights, it must have created amazing memories.

While reading the book I was thinking that now these high school characters I was reading about are old. They turn 40 next year. They are nothing like those characters: physically, mentally or otherwise. They were a cog in a machine they did not understand, that they may never understand. Bissinger's writing does not make fun of them for being cogs. He merely relates what it was like to not have to go to class, to get free candy in your locker, to be a hero every day and especially on Friday night. Even while understanding the sheer stupidity of certain decisions and the clearly misplaced values, it can summon feelings from the past. It can make you exclaim "Oh, to be a cog!"

A Modest Prediction

My belief is that one name is currently finding itself in more law school exams than any other name this fall: Tiger Woods. The combination of his life falling apart at the end of November - the prime time when law school professors actually have to write the fall semester exams, the fact that his name is everywhere (even more than usual), and the fact that the details are sordid and lend themselves easily to all kinds of legal hypotheticals, makes it a seeming lock that plenty of students will be analyzing questions involving Tiger.

I have an exam on Monday for Community Property, in which I am about 75 percent sure there will be a Tiger Woods question. While Florida is not a community property state, most states that do not follow community property have created statutory structures to operate similarly at divorce. I presume my question will simply transfer Mr. Woods to Arizona, include a few cracks about bad driving and skanks and go from there.

The basic community property law is this: whatever money Woods made during the period when he was married (which he still is - I don't mean to bury his marriage before it is over, although he has been doing a pretty good job apparently) is community property, which must be split in half. Half goes to Ms. Nordegren and half goes to Mr. Woods. During his marriage I believe - although I have not verified - that Mr. Woods made roughly eleventy bajillion dollars. Ms. Nordegren, thus, would be entitled to half of that, or fivety point five bajillion dollars. Her half is not reimbursement or spousal support but simply an ownership interest. In a community property jurisdiction, marriage is a partnership in which the money that is earned is earned by the community, not its component members.

Money or assets that are received during marriage through gift or inheritance are not community property, but just about everything else is. For the Woodses, the golf prize money, the endorsements, the video game royalties, etc. - it is all community property.

In Arizona, community property must be split "equitably, though not necessarily in kind." Courts have generally read this to mean that not all property needs to be divided perfectly in half, but the in the aggregate the property distribution should be 50-50. A court cannot deviate from this structure, no matter the actions of the parties. And by statute, a court must make its property distribution "without regard to marital misconduct." While Mr. Woods might look to that particular language as a lifesaver, courts have often chose to make "equitable" distributions in ways that appear to punish those who have been less than perfect spouses. Mr. Woods likely would fear going before a judge in a divorce action - even if he had lots of statutes on his side.

But you protest that this is all irrelevant: Mr. Woods opted out of the community property system - and any similar statutory system - through a prenuptial agreement. While community property is a default system in community property states, couples are able to avoid the system by agreeing to alternate property schemes. The basic prenuptial agreement specifies that a couple will not share any community property except for any property that they choose to be jointly titled, such as a home or vehicle. With such an agreement, the money that each spouse makes remains their separate property, which will not be split at divorce. This likely would mean that Woods could keep his eleventy bajillion dollars, and Ms. Nordegren would get much, much less. (Obviously, the prenuptial agreement probably takes quite good care of Ms. Nordegren - they had to get her to sign it somehow - but I explain this merely to show the general outline of the law.)

What is most interesting about the prenuptial agreements issue is that in many states a prenuptial agreement is MORE likely to be enforced than a regular contract. That seems ridiculous when one considers all of the stress and, for lack of a better word, drama that often goes into the signing of such a document. However, many states have adopted the Uniform Premarital Agreements Act, which only invalidates a prenuptial agreement due to procedural unconscionability or when certain financial disclosures are not made. The UPAA entirely eschews analysis of substantive unconscionability (an impressive legal term that basically looks at whether something is fair or not) and instead will enforce prenuptial agreements as long as certain requirements were met. There is often some duress in the signing of a prenuptial agreement (such as, sign this or I'll call off the wedding) and there is often a large sophistication or power differential among the parties (hence the need for such an agreement at all). I would assume - although I do not know - that Ms. Nordegren was represented by counsel in the negotiations of a prenuptial agreement, so it is likely that the agreement is fair. But nonetheless, many prenuptial agreements are not fair, and yet courts, constrained by the law, enforce them.

Another point to make clear about prenuptial agreements is that it is not the person who has a lot of money that has all the power, but it is rather the person who has the capacity to make a lot of money that has all the power. All of the money that Mr. Woods already had was not going to become Ms. Nordegren's money just because they got married. That was his separate property money for him to do with as he liked. But it was clear that Mr. Woods was likely to make a lot of money during marriage, and it was this money that would become community property to which each spouse would have an undivided one-half interest.

If there is no prenuptial agreement or it is unenforceable, Mr. Woods will be subject to the divorce law of Florida. While I am not familiar with it specifically, I assume it is similar in structure to what has been outlined above. Many of the super-rich live in Florida to avoid income tax, but the divorce law is also something about which they should be knowledgeable. The money that they save in taxes can easily go out the door at divorce if their prenuptial agreement fails and their ex leave with half.

Additionally, there are interesting community property questions as to the home that the family lived in - such as could Ms. Nordegren receive reimbursement for community property payments made on the mortgage (if there was one?) and could Ms. Nordegren even have an ownership interest in the home due to community property money being used to pay the mortgage. Additionally, does Ms. Nordegren have an interest in trophies and other non-monetary winnings that could be considered ownership? The more likely result would be for Ms. Nordegren to receive a somewhat larger portion of the community property as an offset for Mr. Woods being allowed to keep those trophies.

The final "interesting" question (I realize no one else finds this interesting, but it is cathartic for me) is the matter of negotiating a settlement. Every settlement is negotiated "in the shadow of the law," which means that counsel must first objectively analyze the client's position and what is likely to happen at trial. Mr. Woods' reputation has already taken such a beating that it is possible he would be willing to go to trial, but it seems more likely that Ms. Nordegren could get seemingly anything she wanted in order for Mr. Woods to avoid a trial and further embarrassment. Even if Ms. Nordegren is "only" entitled to fivety point five bajillion dollars, I think she could easily ask for eight-ty point six bajillion dollars and find a willing taker.

In the end, while community property would seem to be the best candidate for Tiger Woods law school exam questions this fall, there is also the possibility of family law, criminal procedure questions, criminal law questions, negotiation, and others. It should be an exciting exam period!

Community property questions are often the domain of the super-rich, and I feel the Tiger Woods saga - however it turns out - may be fodder for law school questions for years to come. I'll let you know whether I get to write about it on Monday.

(None of the above was legal advice. This blog does not dispense legal advice. You should not look to this blog for legal advice. Looking to this blog for legal advice is prima facie evidence of lack of capacity.)

Trip Report

Kat and I went to Arizona's state capitol yesterday for a day of fun. Herewith, is the rundown of the hijinks we got into.

First, IKEA. Those Scandinavians know a thing or three about cheap furniture. We eschewed (that means "did not attempt to eat") the furniture and instead just bought some new slipcovers for our current furniture. We now have three sets of slipcovers, but most of them have been defiled by dogs. This new set will probably stay white for about a month, but what choice do you have when your pets control your life.

Second, we drove by the building where I am going to work and what was around it. We also took a look downtown. Kat seemed to like the area where I am going to work.

Third, we drove out to the Peoria Sports Complex to sit in on an intimate gathering that was the Peoria Saguaros versus the Peoria Javelinas. Thad Franklin Weber (note: middle name has not been verified) of the Detroit Tigers organization took the mound for the Javelinas in the fourth inning. Thad gave up two runs, but he was going against all-star hitters and an umpire with a strike zone that could only be seen by using the most cutting-edge technologies in microscopy. Thad said he felt good and made good pitches, and it was really cool to get to see him pitch. I don't think I had seen him on the mound in maybe eight years, although the only improvement would have been if Elliott Lloyd Gautreaux (note: middle name has been verified) was behind the plate.

Kat and I left when it became clear that Thad would not be pitching anymore. We left the assorted scouts, autograph seekers and baseball enthusiasts (that is, rather aged and portly white men) and headed over to Scottsdale. When we got to Westworld for the horse show, there was nothing going on. Our timing was quite poor. Finding nothing to catch our interest, we executed a well-known Kat Gautreaux contingency plan: go to a mall. We went to Kierland Commons (where you can buy a loft above a B.Rep for "only" $700k!) and looked around. Kat bought a shirt with a rooster on it at J.Crew.

We then went back to Peoria to meet up with Thad and his dad Les Orestes Weber (you know the drill on the middle name) at Cheesecake Factory. Kat and I got lost, so we were a little late. We had a nice dinner. Mr. Weber was quite generous. We talked to this guy for awhile. And generally a good time was had by all. Thad explained what minor league life was like and we talked about dogs and other topics. Kat purchased a salad that appeared to have been constructed by Frank Gehry. After thanking the Webers, we returned home to Tucson. The dogs were excited to see us.

All in all, it was a pretty good day.

Look back to go forward

Two long years ago one of my professors required us to write letters to our third-year law student selves. It was an interesting exercise, I guess. Anyway, now 730 days later, said professor returned those letters to us. Is my letter interesting? No. Is it enlightening? No. Is it funny? Not particularly.

I will point out that I included Kat in its drafting, lo, that 104 weeks ago. The other important thing to point out is the name on the envelope to return my letter: Jeffrey Gautieaux. Yes, clearly, I command lots of respect in these parts. Conduct yourself accordingly.

Anyway, here you go.

I'll blog even when I have nothing to say

I went to my first University of Arizona football game last night here in Tucson. The somewhat-mighty Wildcats defeated Northern Arizona 34-17. It was a pretty impressive spectacle. No one sent me the memo about wearing a red shirt, so I was one of the few U of A fans in a white shirt. However, it did not affect the outcome. I went to the game with my friend "Double D" after I received two free tickets from my friend "Rory." The crazed Wildcat fans next to "Double D" and I questioned why we weren't cheering or yelling more. In fact, at one point a woman said "You guys don't look like you are having fun." I was going to mention how sports are an intellectual exercise for me, but instead I just said "It's OK." The game was enjoyable, but I think I am done with cheering in general.

I have watched some football this weekend, and I still find it an enjoyable sport. I enjoyed the exciting mediocrity v. mediocrity battle that was Notre Dame v. Michigan. I also enjoyed the ridiculousness of the Denver/Cincinnati game, which for some reason was on here in Tucson. I am free to watch all the sports that I want with Kat at sea, but I think I would rather watch less sports and see her more. Kat seems to be having a good time, but I can only hold things together for so long. Another one of my friends, "Ted," says that he imagines me being forced to fight off Lucy and Lily in an attempt to have any food to eat.

(Obviously the "friends" mentioned in this post have different names. The names have been changed to protect their identities and to allow them to deny they know me.)

It is still summer in Tucson and the weather reflects it. We got rained on a decent amount last night at the football game, and the temperature drops at night, but it is still quite warm during the day. And since I am now blogging about the weather, I have officially become 80 years old and need to sign off.

I promise some great future posts with tales of Kat's travels and travails (with pictures!). But for now, you, like me, will have to be patient.

I did watch a film - In the Loop - this weekend, which is quite enjoyable. If you get a chance to see it at your local independent film theatre (those are in every town right?) then I would suggest it. It is deliciously satirical and very, very, very funny.

Well that is all that I have for you. I haven't blogged in forever, so I felt I should, but the poor level of this post makes me question whether I should continue. Well, at least I didn't talk about basketball, right? Alright, later.

Did you miss me?

All right stop, collaborate and listen
Ice is back with a brand new invention

I hadn't heard VI in many moons, but a fellow law clerk, who clearly wishes it still was the 1990s, had it bangin' in his Subaru Legacy the other day (Sirius '90s on 9 channel if you want to queue it up) and it brought back a flood of memories. Actually, it was more like a moderate trickle of memories. What I remembered was that other than the stolen bass line that song was pretty terrible. And long, too, insufferably long. I also remembered when VI destroyed the set during the taping of 25 Lame, a show that is crying out to be released on DVD. I am actually getting close to just breaking down and buying a bootleg copy from someone online because the Youtube clips aren't enough. I think my memory of 25 Lame is actually funnier than it actually was, but not a week goes by that I don't think of it. (That was a sad sentence but nonetheless true!)

But before you think me some sort of sentimental sappy sod, I can explain why I am in such a contemplative mood. I am reading a biography of Ted Williams that is making me yearn for the past, when men were men (meaning they tended to spit on unruly fans) and baseball was baseball (meaning, I guess, that only white men were allowed to play it). (Speaking of Williams, read this. It is the greatest sports story ever written and seems to show that maybe everything was better in the past). However, I guess the noted poor driver William Joel may have been right when he said "the good old days weren't always good and tomorrow ain't as bad as it seems." That's the kind of seemingly deep yet totally pointless comment that could sell pop records back when I was a kid. Now, it's just booty-shaking, Autotune, and kooky Minnesotans dancing that moves product.

If you can't tell, I have no idea what is going on in the world these days. I move in a bubble of unimportance that I pretend is important. And that is really what I wanted to talk about. Recently, I attended a hearing with a real live prisoner in a real orange jumpsuit and real arm and leg shackles. I attended this hearing to see this person because much of my time lately has been working in an effort to keep said person in said jumpsuit. Said person clearly did not understand why I was at his hearing and probably was not happy to have me there. But I wanted to be there to recognize that what I was doing was having an impact. Obviously, such a situation can lead to some conflicting feelings. I don't really know if said person belongs in that jumpsuit. I know what I have been told. I know what I read in reports. But it is something a little bit different to see the effect on the actual person and the effect on his or her family. I often say that staying in the office, poring over books and never seeing the light of day is fine with me (can a person's skin get more untanned than absolute white? Of course not, it's an impossibility!). But sometimes you have to face what you are doing. Not because it is supposed to make you feel bad about it or that you are doing the wrong thing, but to keep you focused on how important it is so that you do only what you know is right and truthful.

When Chief Justice John Roberts was on campus this year he was asked if he lost sleep over all of the petitions he gets from prisoners on death row. He frankly admitted that if he did lose sleep over them he wouldn't ever get any sleep. This is true. He said he simply took every one seriously, made his best decision, and then moved on. If he didn't move on, he wouldn't get to live his own life. I think he was absolutely right, but the trick is to take each one seriously even after receiving them over and over again. I am far too green to take anything lightly, but I know that attending that hearing simply reinforced the need for focus.

I meant for this entry to be lighthearted. Honestly, the only thing that keeps this blog from being the bleakest on the Interwebs is that I post so rarely. I don't mean to be spend every day of my life as Mopes the Sad Clown or some sort of martyr who has the weight of the world on his shoulders. I guess I just take this stuff seriously, for now, at least. My current fear level is at orange at all times, although it is inching toward red since I am less than one year from the bar exam. By then I don't think I'll have any fingernails left, maybe no fingers at all. The seriousness will be like Schindler's List in Darfur. No, I won't expect you to talk to me. I wouldn't talk to me either.

So I'm going to post this, even though it is of questionable value and makes me seem like a possible danger to myself and others. But when it's not basketball season there is not much for me to write about. Well, some of my readers don't want the basketball anyway. I can't think they would like this better, but we'll see I guess. Well, that's all for now.

If there's a problem, yo I'll solve it
Check out the hook while my DJ revolves it

(Redacted)

Here is some more useless drivel about the (redacted), (redacted) work I am doing. Enjoy if you can.

During the past two weeks, I watched nearly every minute of a rather extensive trial involving two defendants who allegedly smuggled illegal aliens. The trial was a bit of a soap opera and veered close to (redacted) on a couple of occasions. I think it is likely that (redacted), but when it came down to the verdict both defendants were convicted of all three counts of alien smuggling. The most interesting part of the trial was the defense that was being put forward by the defendants. They did not deny that what they did was illegal or that they were the ones doing it, but their defense was that they thought they were working “deep undercover” for law enforcement. I do not know what they really believed or if this was just a defense created from desperation when they knew they were in trouble, but that uncertainty is what was most interesting to me. I firmly believe that the adversarial process is the best way to actually figure out the facts of what happened, but when it comes to beliefs or intent, we must admit that we can never enter the head of another person. As a prosecutor or defense attorney, you have to believe in your case in order to zealously advocate for it, but I often wonder if lawyers who are fighting to win at trial can even allow themselves to truly consider whether the other side is in the right. Can they allow themselves to wonder at all? Any good lawyer knows it is imperative to consider the weaknesses of his or her case, but my point is about whether one can really take the step of considering whether the other party may deserve to win.

(Redacted)

Ultimately, I am comfortable with the fact that even if I were a juror for that trial, I would not have really known what those defendants were thinking or what they believed. However, the jury instructions required a reasonable belief, and I do not think it was reasonable for those defendants to believe they were working for law enforcement when they had never talked to any real law enforcement officers. I think the jury got it right. A lot of resources and a lot of time was spent, but the American legal system delivered what appears to be a just outcome after a fair process. Clearly, our system of justice is not perfect; it just seems better than anything else one could imagine.

Despite one’s feelings about our justice system, there is no doubt that it is rife with complexity, which is a topic I have been thinking about a lot lately. While the jury instructions for the trial were presented in what appears to be layman’s terms, it seems that the defense attorneys in their closing arguments did their best to muddy the waters and possibly even confuse the jury. While I do not impugn their efforts and understand their duties to their clients, it seems that the defense attorneys made what the jury had to consider seem more complex and daunting than it really was. And some of the questions given to the judge by the jury during its deliberations showed that it was getting a little confused as to what the instructions meant. Our American method for resolving disputes, which I was as recently as the previous paragraph citing as the best possible system, shows itself to be more complex each day that I show up for work. The sheer amount of law and the amount of complexity within that law is staggering. While it may create some job security for lawyers (if you can get one first, that is!), I fear that the complexity that has been built into the system over time has made it impenetrable to anyone who is untrained (and even many who are). Recently, I have been working on a (redacted) that was filed by a pro se plaintiff. The complaint is largely incomprehensible and does not follow any pleading conventions. It has been more difficult to write a (redacted) for such a complaint because it makes so little sense that I do not know where to start refuting it. I am not arguing that our system should be simple enough to allow anyone to file their own complaint. Such a system would be inefficient and unhelpful. However, my concern lies more with the public’s opinion of the legal system itself. Because of how complicated it is to do even seemingly simple things, the public sees lawyers as a malevolent force and comes to believe that the system is set up to take advantage of the unsophisticated. And sometimes those things are true.

I don’t have an answer. This is simply an observation (and not really that perceptive of one – it is akin to writing an entire paragraph about how it seems like the Pope might in fact be Catholic). But I sometimes feel that things are being made more complex in order to benefit certain groups at the expense of others. Today, while I was reading a case, I had to stop and laugh when the opinion drily stated (with no apparent sense of humor) that “in our circuit we do not use the common sense approach.” And I felt that such a sentence could be included in hundreds of opinions every day. Common sense is not the answer to all of our prayers. And some people would not like my version of common sense, and I would abhor theirs. My answer – which I hope is better than my observations – is to always focus on the fact that as a lawyer the goal is to help people navigate this complexity that has developed and to help them feel as though they are guiding their own ship. I hope I never reach a point where I feel it is wasteful or unnecessary to explain – in understandable terms – what decision the client needs to make and what factors impact that decision. It remains their decision – even if they need me to explain what it is they need to decide. To me, that is the job of being a lawyer and that is the way to help the client. Yes, it is advocating and advising, but I think in the end it is about explaining.

And after explaining, there is of course listening and actually doing what the client wants. But I will have to save that for a couple of weeks from now. That is enough of my observations and theories.