All Posts By Michael Kahn

A Magical Poem

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Despite being an English major in college, poetry has never been at the top of my list of favorite art forms. But several years ago I came across a poem that I immediately fell in love with: “Sailing to Byzantium” by William Butler Yeats. Wanting to save that poem, I copied and pasted it into a Word document that I optimistically labeled Favorite Poems, hoping that someday I would find others to add to my existing “collection” of one poem.

And, fortunately, I did. Over the years that Favorite Poems document has grown into an eclectic collection that ranges from “Ul10860179_1563633677200795_861028892_n[1]ysses” by Alfred, Lord Tennyson to “The God Who Loves You” by Carl Dennis. And while I don’t often read through the collection, everyone once in awhile something will happen that sends me back to one of those poems.

The latest example is our recent trip to Chicago to visit our two oldest children, Jake and Hanna, their spouses, and our11906361_1628455720744311_179259593_n[1] five grandchildren. We stayed at our daughter Hanna’s house. (The photos here are of Hanna and her family.) As I watched her juggle all the various tasks that moms with little kids have to juggle, I immediately thought of one of the poems in my Favorite Poems collection: “Things You  Didn’t Put on Your Resume” by Joyce Sutphen.

I first came upon that poem many years ago, back when Hanna was in 8th grade and her mother Margi was juggling all those Mom Tasks with Hanna and her four younger siblings. The first time I read it back then, it made me smile and it brought tears to my eyes.

After coming home from Chicago, I read that poem again, and once again it made me smile and tear up. I sent it to Hanna. And now I want to share it with you.

Enjoy–and have a Kleenex handy!

Things You Didn’t Put On Your Resumé

by Joyce Sutphen

How often you got up in the middle of the night
when one of your children had a bad dream,

and sometimes you woke because you thought
you heard a cry but they were all sleeping,

so you stood in the moonlight just listening
to their breathing, and you didn’t mention

that you were an expert at putting toothpaste
on tiny toothbrushes and bending down to wiggle

the toothbrush ten times on each tooth while
you sang the words to songs from Annie, and

who would suspect that you know the fingerings
to the songs in the first four books of the Suzuki

Violin Method and that you can do the voices
of Pooh and Piglet especially well, though

your absolute favorite thing to read out loud is
Bedtime for Frances and that you picked

up your way of reading it from Glynnis Johns,
and it is, now that you think of it, rather impressive

that you read all of Narnia and all of the Ring Trilogy
(and others too many to mention here) to them

before they went to bed and on the way out to
Yellowstone, which is another thing you don’t put

on the resumé: how you took them to the ocean
and the mountains and brought them safely home

Join me on November 19 at 6:30 pm . . .

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. . . for what the Maplewood Public Library has labeled An Evening with Michael Kahn. Here is a link to a description of the event, which should be lots of fun. I will be discussing and fielding questions on the topic of “Why Truth Is Stranger than Fiction?”51r2Cj94myL._SY344_BO1,204,203,200_[1]

Here is the Library’s description of the event:

Michael Kahn is a trial lawyer by day and a writer by night. He is the award-winning author of the nationally popular Rachel Gold mystery series. The latest entry in that series is Face Value. Earlier this year he published The Sirena Quest, a stand-alone novel that Publishers Weekly praised as “Equal parts rollicking adventure, existential and spiritual quest, and coming-of-(middle)-age tale.”

A former elementary school teacher in the Chicago public schools, Michael somehow finds time to practice law, teach classes as an adjunct law professor at Washington University in St. Louis, blog on his webpage, and write this entertaining mystery/thriller series.

Come spend an evening with Michael Kahn as he shares his love of writing and the legal realm.

Books will be available for sale that evening.

The Library is at 7550 Lohmeyer in Maplewood, Missouri 63143. And yes, as the engraving above the doors indicates, the Maplewood Public Library occupies what was formerly the Maplewood Municpal Pool. I don’t know whether there will be lifeguards at the event.

Was Yogi a Yogi?

We in St. Louis joined Baseball Nation in mourning the recent death of baseball legend Yogi Berra, a beloved son of our town who grew up on the Italian Hill. As might be expected, the obituaries celebrated not only his remarkable baseball career but his equally remarkable quotations–sayings that might strike you initially as absurd or idiotic but which, upon reflection, reveal a deeper level of wisdom. Examples include:

  • “It ain’t over till it’s over.”
  • “It’s déjà vu all over again.”
  • “The future ain’t what it used to be.”
  • “You can observe a lot just by watching.”

And my favorite line of his, when asked about a popular bar: “Nobody goes there anymore. It’s too crowded.” Indeed, when my law firm asked that each of us include in our online bio an inspiring quote from someone we admired, many of my colleagues chose quotes from great judges, philosophers, or other historical figures. I, however, chose one from–well, see for yourself here.

66789[1]As I read through one celebratory obituary after another, I thought back to one of my favorite Sports Illustrated articles by one of my favorite writers, Roy Blount, Jr. Originally published in the April 2, 1984 issue of Sports Illustrated, the piece opens with the provocative question: “Is the new manager of the New York Yankees a true yogi?” And centered directly above that sentence are a pair of quotes, one from the baseball Yogi and one from, well, another Yogi:

“Yoga consists in the stopping of spontaneous activities of the mind-stuff.” —YOGI PANTANJALI

“How can you think and hit at the same time?” —YOGI BERRA

Blount intersperses the rest of his piece with brilliantly matched pairs of quotes, one from the ballplayer and one from a religious yogi. Here’s an example:


“The time is now and now is the time.” —YOGI BHAJAN

“You mean right now?” —YOGI BERRA when someone asked him what time it was.

And another:

“One thing you cannot copy and that is the soul of another person or the spirit of another person.” —YOGI BHAJAN

“If you can’t imitate him, don’t copy him.” —YOGI BERRA

Enjoy the article.

And let me end with one final bit of advice from our St. Louis Yogi: “Always go to other people’s funerals. Otherwise, they won’t go to yours.”

A Fun Conversation with Author Jonathan Watkins

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We authors are accustomed to being the interviewees, i.e., the ones giving the answers to the questions. Thus it was a pleasure to settle down with fellow attorney-author Jonathan Watkins and finally get to ask some of the questions I’ve often wished an interviewer would ask me. And it was even more of a pleasure to receive his answers.

Motor City Shakedown CoverBy way of background, Jonathan lives and works in Ann Arbor, Michigan. An attorney and a self-described “life-long fan of detective fiction,” he is the creator the Bright & Fletcher mystery series, the latest of which, Motor City Shakedown, has just been published. Set in Detroit’s criminal justice system, the novel has been described by one by reviewer as “a fast-paced, humorous thriller that will leave you guessing until the very end.” (And if you prefer to listen to your thrillers , here’s a link to the audio version.)

But enough preliminaries. Let’s chat with Jonathan:

Mike K.: We are both trial lawyers who also write novels, and thus we are both often asked why are there so many lawyers writing novels. A better question, though, is: what are the parallels, if any, between the job of a lawyer—and especially a trial lawyer—and the job of a novelist?

Jonathan:  Great question. They’re both acts of storytelling. If you’re running a trial, you’re telling a narrative in competition with the other side. They have their story and you have yours. When all the motions have been heard, the witness list has been finalized, and the last minute plea offer rejected, what you’re left with is the job of telling a story to the jury that is better and more believable than the other guy’s. Losing the thread of that story (not being mindful of it when you’re choosing what questions to ask a witness) or telling it in a confusing way will sink you. There are a lot of moving parts to some trials, and they are all important. But you can’t forget the ‘Big Story’ that you’re presenting to the jury.

Mike:  Have you seen any impact in the real world of courtrooms from all of those courtroom dramas on TV?

Jonathan: Not as much from the courtroom dramas as from the ‘CSI’-type shows and cop procedurals. Today’s juries have watched years of these shows, all of which present scientific tests as the definitive way to offer proof that something did or did not occur. But the truth is that most cases won’t rely on DNA testing, computer models, blood spray analysis, or even fingerprints. A lot of crimes simply don’t have any elements that would make scientific inquiry necessary. Most trials involve testimony from witnesses. You’ll get a cop, the victim, and a witness or two. The most ‘hi-tech’ evidence admitted will be some photographs or some documents.

Somewhere in that jury is likely a man or woman who mistakenly thinks that the super-science procedures shown every week on their favorite procedural are actually real (most of them aren’t) and also very commonplace (the ones that do exist are rarely used). And that man or woman is going to be a lot more susceptible to thinking that a trial where none of that super-science has been presented is in some way deficient.

It’s akin to how non-lawyers will say something to the effect of, “Yeah, but the evidence was only circumstantial”, as if a case shouldn’t be brought unless it is entirely supported by direct evidence and free of anything that could require a juror to make an inference. TV show lingo was responsible for that misconception as much as it is for the idea that every crime scene is crawling with the best scientists in the nation, wielding the most cutting edge instrumentality, and scrutinizing every microscopic filament with the deductive acumen of Sherlock Holmes.

Of course, this is all to the benefit of the Defense side of the story. The more serious the crime, the more some jury members are likely to believe that cutting edge scientific evidence is not just preferred, but even necessary, in order for them to feel comfortable finding someone guilty.

Mike: Hollywood comes knocking and buys the movie rights to Motor City Shakedown. Incredibly, however, they give you total discretion over casting the movie. Who will you pick the play the main roles, and why?

Jonathan: Issabella Bright would be played by Anna Kendrick. In the film Up in the Air, she looked almost exactly like how I picture Issabella. Also, Ms. Kendrick is one of those rare actors who is equally adept at both drama and comedy. She would be perfect for the tense moments in Motor City Shakedown as well as the lighter bits.

Darren Fletcher would be played by Jason Bateman. He doesn’t fit my image of Darren physically, but he’s close enough. More important than the appearance, I think he would nail the beleaguered, run down state Darren is in when we find him at the book’s beginning, while still being able to nail the humor and outrageous behavior that Darren displays throughout the rest of the book.

Theresa Winkle: Melissa McCarthy. Theresa is an eccentric who lives in a bar with her collected herd of unicorn figurines. She’s blunt. She’s uncomplicated in her view of the world and isn’t shy of saying exactly what she thinks. I can’t think of any other actor out there who could carry that type of part as easily as Ms. McCarthy.

Mike: As a reader and a writer, many of my favorite characters are the ones I label “cage-free,” namely, the ones who somehow escape the confines of the outline and yank the story in a new direction. Beloved examples from literature include Falstaff in Shakespeare’s Henry IV plays and Sancho Panza in Cervante’s Don Quixote. Have you ever had a cage-free character appear in one of your novels? If so, describe the experience.

Jonathan: For me it was Malcolm Mohommed, the hit man in Motor City Shakedown. Originally he was only going to appear in one or two scenes to fill a minor plot role before disappearing out of the story for good. But as soon as I started putting him together, he became irresistible to me. His unique view of the world, his artistic mission, his deadly machine-like quest for personal vengeance—all of it conspired to blow up my original outline. He became a major, vital player in the book’s narrative. If I ever have the right story for him, he’s the one secondary character from the book that I would want to make the lead of a stand-alone novel.

Mike: Which books on your Top Ten List do you think might surprise your readers?

Jonathan: Probably the fact that I really am a sucker for American classics. I write genre fiction, proudly. But if you were to demand to know which books I return to again and again, they would be The Sound and the Fury, The Great Gatsby, The Old Man and the Sea, and One Flew Over the Cuckoo’s Nest. Don’t get me wrong, I read a lot of detective fiction, mysteries, thrillers, horror, fantasy, and science fiction. They are my comfort reads, and I go through them fast. But those books I listed above are burned into me. I have to pull them out now and again, to pick over and puzzle out and try to learn from.

Mike: Okay, now for some important stuff. I went to college with two guys from Detroit who rhapsodized over Stroh’s beer. Are you a Stroh’s fan? Is it still around? And what does “fire brewed” mean?

Jonathan:   Anyone who would rhapsodize over Stroh’s needs to have their taste buds arrested and their stomach apologized to. Stroh’s is the beer you drink when you’ve just turned of legal age and don’t have enough pocket money to buy a beer that doesn’t hate you. I’m sure “fire brewed” is a real process. I’m also sure that it perfectly describes the state of your intestinal tract after you’ve been drinking Stroh’s. Maybe your friends were trying to haze you.

Mike: These days a popular question for writers is to have them name 3 other authors, living or dead, that they would invite to a dinner party. Who would you invite?

Jonathan:   Robert B. Parker, because I grew up with his Spenser character, whose innate nobility and personal code of right and wrong informed a lot of my young world view.

Fyodor Dostoyevsky, because every dinner party needs that one guy who just won’t tolerate small talk and demands actual conversation about weighty propositions.

Norman Mailer, because you also need the unhinged provocateur who breaks up the flow of things with bravado and brash posturing. If nothing else, I think he would refuse to allow an evening to be anything but memorable, even if it was memorable for how it devolved into shouting and punching.

Mike: Finally, who’s your favorite fictional hero or heroine, and your favorite antihero or villain?

Jonathan:   My favorite hero is and will ever be Atticus Finch from To Kill a Mockingbird. I know that’s the most obvious answer for a lawyer, but there you have it. He was honest, kind, devoid of bigotry, and willing to stand against the tide of racial injustice.

My favorite villain is Judge Holden from Cormac McCarthy’s Blood Meridian. I’ve never read a more hellish, obscene, or terrifying depiction of the worst impulses inside the human heart than what’s contained in this book. And the Judge is the physical manifestation of it all. Pure evil and purely fascinating.

Mike: Yes, the Judge from Blood Meridian is one of the great villains of all time. I doubt whether Iago or Hannibal Lector would even be willing to get into the ring with him–even if they got to go in there together. Jonathan, it’s been a pleasure. Thanks for taking to time to share your thoughts with our readers, and good luck with your new novel.

Jonathan: Thanks so much for the questions, Mike. These were great fun to answer and I appreciate the opportunity.

More Monkey Business: Copyright and the World’s Most Famous Monkey Selfie

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In my other life as an intellectual property lawyer, I receive almost weekly proof that copyright law is the gift that goes on giving. This time it’s in the form of the world’s most famous monkey selfie, which first surfaced, in this blog and others, last year when an earlier copyright dispute came to light. The selfie has resurfaced, this time at the heart of yet another peculiar lawsuit, this one filed by PETA (People for the Ethical Treatment of Animals, Inc.) on behalf of “Naruto,” the monkey who snapped the famous selfie.

For those Rip Van Winkles among us who have just awakened from a ten-year snooze, a “selfie” is a photograph that you take of yourself, typically with a smartphone, and often share via social media. For example, at the 2014 Oscars ceremony, Bradley CoOscars-2014-Ellen-Degeneres-Celebrity-Selfie-Blasted-for-Product-Placement-431571-2[1]oper took a selfie with Ellen DeGeneres and several other celebrities. Here he is (in the photo on the left) snapping the selfie. The result (on the right) became the most widely shared selfie on Twitter and other social media.Ellen-Selfie[1]

But three years earlier, a far different selfie scenario unfolded while nature photographer David Slater was on vacation in Indonesia. A group of crested black macaques started playing with the camera equipment he had set up. “They were quite mischievous,” he told The Telegraph, “jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button. The sound got his attention and he kept pressing it. He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus.”

A few were, however, and Slater included them in his book Wildlife Personalities (with the selfie above as the book cover). The monkey selfies became an Internet phenomenon, and–alas–the center of two separate legal disputes.

The first was a battle with the Wikipedia Foundation, which posted that monkey selfie online in its collection of public domain images and refused to take it down, arguing that Slater didn’t own the picture’s copyright because he didn’t take the picture—the monkey did. And since the monkey can’t own the copyright, Wikipedia argued, nobody does.

Slater’s latest battl7JgmFv6[1]e is with PETA and Antje Engelhardt, Ph.D., who, as  “next friends” of the macaque, have filed a copyright infringement lawsuit against Slater and his publisher. “Naruto,” the complaint alleges, “is a free, autonomous six-year-old male member of the Macaca nigra species, also known as a crested macaque, residing in the Tangkoko Reserve on the island of Sulawesi, Indonesia.”

The heart of the complaint is the claim that Naruto “has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author.” The Complaint seeks a declaration of Naruto’s rights, an injunction against use of the photos, an accounting of all profits attributable to the infringement and appropriate damages, permission for the Next Friends to administer and protect Naruto’s rights, an order that the proceeds from the sale, licensing, or other use of the photos be used solely to benefit Naruto and his community.

If asked to bet on the outcome of this lawsuit, I’d put my money on Slater and his publisher, but not for any sentimental reasons or for fear that this lawsuit is the harbinger for the real Planet of the Apes. Instead, I’d point to the Copyright Office and the U.S. Constitution:

  • The Copyright Office: Chapter 306 of the Compendium of US Copyright Office Practices states: “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.”   The Copyright Office specifies that it “will not register works produced by nature, animals, or plants.” One example it offers:  “A photograph taken by a monkey.”
  • The U.S. Constitution: It’s easy to forget that the copyright and patent laws grant to authors and inventors a monopoly over their creations for a certain period–20 years for a patent owner, a lifetime plus 70 years for an author. For a nation that celebrates free enterprise and competition, what is the justification for this grant of monopoly? It’s right there in the Constitution. Specifically, Article I, Section 8, Clause 8, which empowers Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, the justification for giving authors the exclusive rights in their creations is to provide them with an incentive to create art that will ultimately enrich our culture. Thus while monkeys have many endearing qualities, our Founding Fathers realized that granting them an exclusive right in their works would in no way give them an incentive to create those works. And thus the central purpose behind the copyright monopoly has no application outside the human race.

Which is not to say that Naruto’s selfie isn’t far more intriguing than 99% of the selfies taken by humans and posted onto social media. It’s just to say it’s in the public domain for all to enjoy. And while I’ve had to battle a variety of obnoxious animals in three-piece suits in the courtroom, I’m relieved to know that posting this monkey selfie on my blog won’t result in a call from a real gorilla that Naruto hired as his licensing agent.

The Donald, the Orangutan and Me: A Little Monkey Business

As a lawyer by day and an author at night, I’ve had times when the realm of fiction intersects with the realm of reality. One example, gleaned from my years representing newspapers and publishers, is the law of libel, where the jury must decide whether the allegedly defamatory statement is true or fiction. If true, the plaintiff loses. If fiction, the plaintiff wins.

Occasionally, however, the dividing line between fact and fiction in a libel case is more subtle, namely, is the statement, though fiction, one that a reasonable person would believe to be fact. Huh?

The best example is the lawsuit Rev. Jerry Falwell filed against Larry Flynt over a parody ad that ran in a 1983 issue of Hustler magazine. The ad was modeled on a series of Campari liqueur ads in which a celebrity talked about his or her “first time”–which turned out to be the first time tasting Campari. Here’s an example featuring Jill St. John.

The United State Supreme Court described the Falwell ad parody as follows in its unanimous opinion in Hustler Magazine v. Falwell:

The inside front cover of the November 1983 issue of Hustler Magazine featured a “parody” of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled “Jerry Falwell talks about his first time.” This parody was modeled after actual Campari ads that included interviews with various celebrities about their “first times.” Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of “first times.” Copying the form and layout of these Campari ads, Hustler’s editors chose respondent as the featured celebrity and drafted an alleged “interview” with him in which he states that his “first time” was during a drunken incestuous rendezvous with his mother in an outhouse.

Here is that infamous parody ad.

Although the lawsuit reached the Supreme Court on a different legal theory, Falwell’s libel claim died in the trial court, where the jury found that no reasonable person reading that ad would have believed that it was a real interview of Rev. Falwell or that his first sexual experience was with his mother in an outhouse.

Which brings us to the Donald and an alleged sexual rendezvous of a somewhat different nature. In the Fall of 2012, at the height of the last Presidential campaign, Trump jumped into the “birther” controversy with what he labeled his “October surprise”: “I have a deal for the president,” he announced, “a deal that I don’t believe he can refuse, and I hope he doesn’t. If Barack Obama opens up and gives his college records and applications, and if he gives his passport applications and records, I will give, to a charity of his choice—inner-city children in Chicago, American Cancer Society, AIDS research, anything he wants—a check, immediately, for $5 million.”

A few weeks later, comedian Bill Maher told Jay Leno on The Tonight Show that he had his own “October surprise”: he would pay $5 million to Trump’s charity of choice (which, according to Maher, was the Men’s Hair Club) if Trump provided a birth certificate proving that he’s not “spawn of his mother having sex with orangutan.” True to form, Trump immediately had his lawyer send Maher a copy of his birth certificate with a letter demanding the $5 million. As the letter stated, “attached hereto is a copy of Mr. Trump’s birth certificate, demonstrating that he is the son of Fred Trump, not an orangutan.” When Maher ignored the demand, Trump filed a $5 million lawsuit for breach of contract. Although the rest of the world understood that Maher’s offer was a joke, Trump insisted otherwise in an interview of Fox News: “I don’t think he was joking. He said it with venom. That was venom. That wasn’t a joke. In fact, he was nervous when he said it. It was a pathetic delivery.”

Amidst much derision, Trump withdrew his lawsuit a few weeks later. His lawyer, however, insisted that the withdrawal was only temporary, claiming that it had “been withdrawn to be amended and refiled at a later date.” That was more than 2 years ago. The lawsuit has not yet been refiled.

And thus a lesson in fact versus fiction, compliments of the Donald. And perhaps a bigger lesson in the Donald World versus reality. Indeed, if that lawsuit is any indication, the Donald has some personal challenges ahead of him before he tries to “make America great again.”

The Big Lebowski Meets The Big Sleep

The other night I settled down to watch “The Big Lebowski,” a terrific Coen brothers film that features three of my favorite actors (Jeff Bridges, John Goodman, and Steve Buscemi) playing three of my favorite characters (the Dude, Walter Sobchek, and Donny Kerabatsos).

The Dude, Donny, and Walter

I’d last watched the movie about ten years ago. If you’d asked me before I started the film to describe it in five words or less, my answer would have been “A stoner crime comedy.” But 20 minutes into the movie, I had my epiphany, But more on that in a moment.

Many of us Baby Boomers function under the misconception that we are totally hip. After all, my man, we are the generation of Woodstock, “Easy Rider,” Bob Dylan, and, of course, weed. Sadly, we are also the generation that keeps getting reminded how unhip we are. Such as the time I was doing a patent review for a hat company’s latest product, the Stash Hat. It was a baseball cap with a small Velcro pocket on the inside of the front panel. Perfect, I thought, for storing your house key when you went jogging. Noticing that all five sample hats had the same number embroidered on the front and thinking perhaps the company had mistakenly added a zero to what should have been 42 (a more common baseball number), I raised the issue with the company’s 69-year-old chief financial officer, who chuckled as he explained the meaning of 420. I listened, dumbfounded.420_baseball_hat[1]

“Oh,” I finally said.

“That’s why we call it the Stash Hat, Mike.”

Shocked, I sent an email to my five kids, asking whether they had ever heard of the meaning of 420, and all five responded with variations of “Well, duh!”

If you’re still clueless, Google “420” or check out this link.

Another example: I recently learned of the existence of the term RBF–and, as a further insult to my hipness, I learned of its meaning not from High Times or Rolling Stone Magazine but from a far stuffier publication nicknamed the Grey Lady.

Bigsleep2[1]So back to my epiphany. Around the time that the Jeff Lebowski (a/k/a the Dude) is escorted into the den of the other Jeffrey Lebowski–an older, wealthy patriarch in a wheelchair–I suddenly realized that this scene echoed a similar encounter with an older, wealthy patriarch in a wheelchair in a mystery novel  whose title also started with the words “The Big.” Yes, Raymond Chandler’s The Big Sleep (and the Howard Hawks film of the same name). And sure enough, a few more scenes into the movie the wealthy old man in the wheelchair hires the Dude to find a kidnapped female member of his family.

Amazed, I started jotting down notes as the movie progressed, and when it was over I had identified an impressive list of parallels. Believing that I was now ready to write the Hollywood equivalent of Darwin’s Origin of the Species, I decided to quickly confirm my genius with a Google search.

Alas, the very first result was the Wikipedia entry for The Big Lebowski, the second paragraph of which read:

The film is loosely inspired by the work of Raymond Chandler. Joel Coen stated: “We wanted to do a Chandler kind of story – how it moves episodically, and deals with the characters trying to unravel a mystery, as well as having a hopelessly complex plot that’s ultimately unimportant”

Humphrey Bogart

And that was just 1 of 240,000 results on Google for the search “the big lebowski and the big sleep.”

So maybe I’m not quite as hip as I thought. But for those of you–especially my fellow mystery writers and mystery fans–who might be interested, here are some other parallels between the two tales:

  • Both movies are set in Los Angeles and feature a bachelor detective;
  • Both movies feature a sexy young woman in the patriarch’s family–the younger daughter in The Big Sleep, the young wife in The Big Lebowski–who flirts with and tries to seduce our detective;
  • A ransom note handed to the patriarch  sets the plot in motion in both movies;
  • A pornographer plays a key role in a plot point in each movie: Arthur Geiger in The Big Sleep and Jackie Treehorn (played by Ben Gazzara) in The Big Lebowski;
  • Both movies feature a more mature femme fatale–the patriarch’s older daughter in The Big Sleep, the patriarch’s sister in The Big Lebowski–who yanks the plot into a new direction;

The-Big-Lebowski-movies-25347166-1400-1000[1]These are just some of the parallels. For more paralells, explore here and here.

As Ben Walthers wrote in Time Out London:

Both movies are private-eye investigations of oddball corruption, set against a Los Angeles populated by forlorn grandees in secluded mansions, over-privileged girls gone wild and a menagerie of thugs, saps and loons. Both see a man plunged into a mystery beyond his initial comprehension in which he is charged with assuring the safety of an irresponsible young woman. What’s more, both have outrageously labyrinthine plots – though at least ‘The Big Lebowski’ makes sense on a second or third viewing. The fine narrative detail of Hawks’ movie is famously impenetrable even to the most determined viewer.

Oh, yes, and that earlier reference to 420. I have it on good authority that the Dude recommends it for your next viewing of the film.

Trollope versus Hawthorne: Where’s the “Beef”?

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Anthony Trollope
There are many reasons to admire the 19th-century British novelist Anthony Trollope, beginning with his sparkling prose and vivid characters. And for those of us who write novels but haven’t been able to quit our day job, here’s another reason: during much of his writing career, the remarkably prolific Trollope (47 novels and more than 9 volumes of essays and non-fiction) had a day job with the British postal system.

Can You Forgive HerI am currently reading Can You Forgive Her, a satirical depiction of the 19th-century British version of our 1%–or, in Trollope’s words “the Upper Ten Thousand of this our English world.” As Alexander Larman wrote in The Guardian in 2012 upon publication of a new edition of the novel, “Trollope’s account of a society in which money, breeding and influence, rather than skill or integrity, are the primary routes into power is unpleasantly familiar.”

As with many popular novelists of every era, including ours, Trollope amused his readers with witty allusions to current events and gossip, most of which completely escape a modern reader–and especially one in the United States. But every once in awhile you come across an allusion with just enough meat to hook your curiosity.

Such was the case earlier this week as I was reading Chapter 33 of Can You Forgive Her. That’s where we meet Lady Monk, the wealthy wife of Sir Cosmo Monk:

“Lady Monk was a woman now about fifty years of age, who had been a great beauty, and who was still handsome in her advanced age. Her figure was very good. She was tall and of fine proportion, though by no means verging to that state of body which our excellent American friend and critic Mr. Hawthorne has described as beefy and has declared to be the general condition of English ladies of Lady Monk’s age. Lady Monk was not beefy. She was a comely, handsome, upright, dame,—one of whom, as regards her outward appearance, England might be proud,—and of whom Sir Cosmo Monk was very proud.”

Beefy? As described by “our excellent American friend and critic Mr. Hawthorne”? Nathaniel Hawthorne? Huh?

I did a little digging. Here’s what I learned:

Nathaniel Hawthorne
Can Your Forgive Her was published in 1864. One year earlier, Nathaniel Hawthorne published Our Old Home, a collection of essays he wrote about English life after returning to Concord, Massachusetts from his stint as American consul in Liverpool. I downloaded the book (available for free on various Internet sites, including this one) and searched the text for the word “beef.” It appears in an essay entitled “Leamington Spa.” Specifically, it appears in Hawthorne’s description of what he describes as the typical English married lady of 50:

“I have heard a good deal of the tenacity with which English ladies retain their personal beauty to a late period of life; but (not to suggest that an American eye needs use and cultivation before it can quite appreciate the charm of English beauty at any age) it strikes me that an English lady of fifty is apt to become a creature less refined and delicate, so far as her physique goes, than anything that we Western people class under the name of woman. She has an awful ponderosity of frame, not pulpy, like the looser development of our few fat women, but massive with solid beef and streaky tallow; so that (though struggling manfully against the idea) you inevitably think of her as made up of steaks and sirloins. When she walks, her advance is elephantine. When she sits down, it is on a great round space of her Maker’s footstool, where she looks as if nothing could ever move her.”

Ouch! And that’s only beginning. Here’s what he has to say about her poor husband:

“I wonder whether a middle-aged husband ought to be considered as legally married to all the accretions that 694242_f520[1]have overgrown the slenderness of his bride since he led her to the altar, and which make her so much more than he ever bargained for! Is it not a sounder view of the case, that the matrimonial bond cannot be held to include the three fourths of the wife that had no existence when the ceremony was performed?”

punch1[1]As you might imagine, that essay was not received well across the pond. The review of the book in the October 17, 1863 issue of Punch magazine (also available online), under the title “A Handful of Hawthorne,” opens with a blast aimed at the entire collection of essays. Addressing himself to Mr. Hawthorne, the critic states that “you have put all the caricatures and libels upon English folk, which you have collected while enjoying our hospitality. Your book is thoroughly saturated with what seem ill-nature and spite.”

Ah, but the real fun–and outrage–begins when the reviewer turns to, and quotes from, that lengthy passage about English women. Here is his response:

“Well painted, Nathaniel, with a touch worthy of Rubens, who was we think your great uncle, or was it Milton, or Thersites, or somebody else, who, in accordance with American habit, was claimed as your ancestor. Never mind, you are strong enough in your own works to bear being supposed descended from a gorilla, were heraldry unkind. Mr. Punch makes you his best compliments on your smartness, and on the gracious elegance of your descriptions of those with whom you are known to have been so intimate, and he hopes that you will soon give a world a sequel . . . in the form of an autobiography. For he is very partial to essays on the natural history of half-civilized animals.”


And thus the background to Trollope’s reference to “our excellent American friend and critic Mr. Hawthorne.” And a salute to the wonders of the Internet, where this kind of detective work can be accomplished in less than an hour at your computer instead of multiple hours–or even days–in the library.

Justice Scalia’s “Jiggery-Pokery”

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Say what you will about Supreme Court Justice Antonin Scalia–and, frankly, there is plenty to say–you have to admit that the man’s prose, especially when he’s in the role of outraged dissenter, can be colorful, as he again demonstrated in his response to the recent Supreme Court’s decision in Obergefell v. Hodges. That’s the case in which a 5-4 majority of the Court held that the 14th Amendment requires a State to license a marriage 120729b-antonin-scalia[1]between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Here is a passage from his angry dissent, which is both nasty and funny:

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)

Bryan A. Garner
Bryan A. Garner, the lawyer, lexicographer, and teacher, runs a delightful blog on language, especially for lawyers, at his website, He has also coauthored two books with Justice Scalia: Making Your Case: The Art of Persuading Judges (2008) and Reading Law: The Interpretation of Legal Texts (2012). Garner recently sent out an email with the following commentary on two of Justice Scalia’s recent quirky expressions. Garner writes:

In the last few Supreme Court terms, Justice Antonin Scalia has used some memorable British colloquialisms—especially argle-bargle and jiggery-pokery.


Argle-bargle is a chiefly British phrase that has taken on the meaning “copious but meaningless talk or writing; nonsense.” It originated in the early 19th century from the Scottish term argle—a late 16th-century variation of argue. Merriam-Webster’s lists the term simply as a synonym of argy-bargy, which in BrE means “a lively discussion or argument.


Jiggery-pokery means “devious or suspicious behavior; sly manipulation; subterfuge; trickery.” The term originated in the late 19th century, most likely as a variant of the Scottish joukery-pawkery from jouk (to turn or bend, usu. to avoid someone or something) and pawky (artfully shrewd). Jouk also gives us the sports term juke (to make a false move in order to deceive an opponent), combining jouk‘s original physical sense and the metaphorical one it assumed as joukery.


Such reduplicative phrases have a way of catching the public ear. Flimflam, jibber-jabber, hocus-pocus, and mumbo jumbo are mainstays of political commentary. And flip-flop is a recurrent favorite, cropping up in prominent elections about once a decade. It was last leveled at then-candidate John Kerry in the 2004 presidential election, so keep an ear out for it in 2016.


Though Justice Scalia’s borrowings from across the Pond may sound funny to American ears, they are part of a well-established tradition and have rich histories of their own—far from pure applesauce. Before I became Justice Scalia’s coauthor (on two books), I interviewed him at length in 2006. When the Justice mentioned that Justice Robert H. Jackson is his favorite writer in Supreme Court history, I responded: “Jackson . . . was considered to be way too aggressive toward his colleagues in his dissents.”


Justice Scalia responded, chuckling: “Oh, imagine that.”

A Shout-Out to Poisoned Pen Press

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On this, the day after Independence Day Weekend, I pause to give a shout-out to my publisher and its support of independent bookstores–the ones who still have bookshelves with books on them.

9781464204395_FC-181x276[1]Like most mid-list writers, each of my first seven novels eventually went out of print and were available only as eBooks. But then Poisoned Pen Press proposed to bring all seven of them back in print. Yes, going ALL THE WAY BACK to my first novel, Grave Designs (originally published under the title The Canaan Legacy). It was a wonderful moment–and it’s been so much fun watching each new edition roll off the press.

When asked during an interview many years ago to describe the most satisfying thing about having your book published, the answer was easy: having my kids take my book 9781464204401_FC-181x276[1]to school for show-and-tell. Taking one of my books to school was a lot more appealing to them than taking one of the legal documents their dad prepared during the day, such as a motion for summary judgement or a set of objections to interrogatories.

The kids are all grown, but there are now 5 grandkids in need of show-and-tell books. So thanks, Poisoned Pen Press!