Mr. Garmel,

Below are some diary notes on my recent adventures. The dramatis 
personae: Margaret, my wife; Klemens, my son, Kimberly (Saillant),
the Nantucket lawyer; AG, of course refers to the Attorney General.

May 12, 2009

The hearing was bad, but I suppose it could have been worse.
I was the first to arrive. A bit later Kimberly came. "Bet
you don't recognize me." she said. She was done up in a dramatic
new hair style, with medusa-like strands of red, streaming in all
directions like the rays of the sun in a kindergarten watercolor.
I wouldn't venture a guess whether she was intent on frightening
or seducing the judge. Klemens was there to give me moral support.
That was comforting. Having been silent all morning, I started
to talk to him, to get my voice in gear, so to speak. When I
ran out of chatter, I extracted from my briefcase the copy of
Kleist's "Der Zerbrochene Krug", and started to read it aloud
in German. The laywers who had begun to assemble in the 
courtroom were discussing their cases with each other and seemed
not to notice. Der Zerbrochene Krug is a wonderful comedy, a 
satire about the law, starring a corrupt judge who has himself
committed the crime for which he imposes sentence. In its way,
the play is more trenchant than any of Shakespeare's comedies,
though not nearly so lyrical. Klemens is very familiar with the
plays of Heinrich Kleist. He wrote a college thesis about trial
and ordeal in Kleist's writings, and got a summa for his efforts.
After the hearing, Klemens wasn't a bit critical of me and said
he thought I had performed quite well.

Ahead of mine were hearings in two cases, the first a medico-legal
complaint from a patient whose anticoagulant (coumadin) had been
stopped prior to surgery and who had suffered a stroke.
A good example: that as a physician if things go wrong you're sued,
if you did something, because you did it; and if you didn't do
that same thing, you're sued because you didn't do it.
The next case was against Lesley University, -
in simpler days it called itself Lesley College. I once had an
office on Sacramento Street next door. In one of Lesley's buildings
there was a leaky toilet, - you can't get away from plumbing
problems, - somebody, - whether a student, a teacher, a visitor, 
slipped on the wet floor and sued the company with whom Lesley
had contracted premises maintenance. That entailed a lot of to
and fro as to who was responsible. Then it was my turn.  As the
only plaintiff, I had a seat to myself. The judge started out
by confessing that he hadn't read "all" of my filings, - which I
took to mean that he hadn't read them at all, but just now started
to look at what I had filed. He started to ask me questions about
the Nantucket trust, an issue which has nothing to do with the case,
but seemed to him a reasonable starting point for thinking about it. -
I had drawn the trust, I told him, to distribute the property among
the children and grandchildren. Anticipating just such legal
predicaments as the present one, I explained, I had prevailed on
Klemens as trustee to give me a twenty-five year lease for the
express purpose of letting me build a house on the land. The judge
seemed satisfied with the explanation.  He asked me about my plumbing
experience, and I told him I had spent much of my life doing glaucoma
surgery, which I said was a form of very delicate micro-plumbing.
He smiled. He asked me and I told what I meant by do-it-yourself plumbing.
I explained to the judge that I liked to do things myself, - including
representing myself in court. He commented that my filings were
better than what many (or most) lawyers gave him. Next, Kimberly
spoke. She was standing behind me, but I heard her clearly. She
reeled off her account about how I had knowingly broken the law,
and about how it was Nantucket's duty to uphold it. The shocker
was the assistant attorney general who spoke next and made light
of his having defaulted on the opposition to the motion, saying
"We usually leave that to the parties." Then he continued by
regaling the Court with a story how this law came to be enacted
when, a hundred years ago, someone had died from incorrectly installed
plumbing. I was appalled.  After the assistant district attorney
had spoken, the judge turned again to me. As I spoke I lapsed into
a popular style that I picked up from my grandchildren, and that
I had the gut feeling was perhaps persuasive to a judge who had
obviously not been President of the Harvard Law Review. I whined 
hat what Mr. Hadas, the assistant attorney general had done to me
wasn't fair, refusing as he did to articulate his opposition in
a formal document as he's supposed to, and instead telling stories
about what happened a hundred years ago. That was a foolish, mindless
complaint, which I blurted out spontaneously, feeling betrayed since
I had assumed that not opposing me indicated the Attorney General
to be on my side. Later it occurred to me that maybe my reciprocating
the AG's informality would make it easier for the judge to accept me
as one of the lawyers he was accustomed to. And indeed, His Honor's
response was to reassure me that he would disregard the AG's anecdote
and decide the case on the merits. I still can't figure out why the
Attorney General took the case away from the Plumbing Board's inhouse
attorney, failed to file an opposition, but urged to the Court in a
remarkably informal argument to favor the Plumbing Board whose defense
he had neglected and left to Kimberly, who strictly speaking, had no
authority to make it. Where's Macchiavelli when I need him to explain
to me how the world works?

So now I don't know what to think. Maybe I shouldn't think at all.
Maybe I've thought too much. Klemens thinks that there's a 20%
chance that the Court will rule in my favor. But I don't even want
to hazard that little sliver of optimism. Emotionally, I'm ready now
to start working on my appeal, although the actual drafting can't
begin until I have the judge's written opinion. As I have said
before, I have a very low opinion of the quibbling about procedure
which is the ultimate legal activity. It's a kind of gutter logic
which has never shown anyone the path to salvation. My parents would
have berated me for spending so much time and energy on a project of
ultimately so little consequence. Do I deceive myself with the 
justification that I'm acquiring knowledge about language and words,
about meaning and action, about "ethics" in the only honest sense of
that term, acquiring knowledge more profound and radical than I could
obtain by a less intense and less passionate involvement?

It's 8:20 p.m., time to quit now. Klemens is taking a 6:15 flight
to Nashville tomorrow morning. I'll get up at 3:45, have breakfast
with him at 4:30, drive him to Logan, be back in bed by six o'clock
and up to see my first patient scheduled for 9, who always comes 
early. My medical licence has been renewed for another two years,
so that if my joints and my brain survive, I should be in business
for another two years, when I'll be 81.
 
                         * * * * *

May 14, 2009

It's to dampen the echoes from day before yesterday's hearing
that I write again so soon. My tiredness stemmed not from
anxiety, but from the frustration of having no opportunity to
articulate the many ideas that I had accumulated in preparing
for the hearing. My discouragement derived not from having my
ideas overruled, but from having them ignored, by the judge
who hadn't read or thought about them; by the assistant
attorney general who pretended that they weren't worth a
reply, and by Kimberly who talked as if they didn't exist,
probably because they were more intricate than what's taught
in the Northeastern University Law School (which is ranked in
the lowest quintile of such institutions). My disappointment was
obviously irrational. Much better this way, than to have the
AG or the Court or both controvert my logic with a well reasoned
rejection. Given that the AG by failing to oppose, in effect
endorsed my Motion, and that Kimberly, by failing to intervene,
forfeitet her right to an Opposition, if the Court rules against
me, I can argue before the Appeals Court that in refusing to
oppose my motion, the AG corroborated my claim that she
declined to enforce a prohibition against do-it-yourself 
plumbing, because she did not deem it unlawful; and that
the judge who is expected to defer to the Board's expertise,
erred by substituting his judgment for that of the Board of
State Examiners who when they failed to oppose my Motion had
abandoned their stance.

I love to argue; but I am under no illusion that in the
end the appellate decision will also be driven by political
considerations. That having been said, it is inescapable
that as one ascends the ladder of appeals, the weight given to
formal logical reasoning will increase. The Plumbing Inspector
arguably less susceptible to reason than the Plumbing Board,
than the Superior Court, than the Appeals Court, and finally
the Supreme Judicial Court, from which it's only a very iffy
certiorari to the wisdom and insight of Mr. Justice Clarence
Thomas. Obviously, in the long run it doesn't really matter
whether I "win" or "lose". There are various perspectives in
which I can't win, and other perspectives in which I can't
lose. I am reminded of the Cunard slogan, that "getting there
is half the fun," and it may not matter too much, what the
ultimate destination is.

One of the fringe benefits of that escapade was the opportunity
to try out Margaret's hearing aids. In the do-it-yourself spirit
to which I am addicted, I fitted Margaret with a pair of hearing
aids which I had ordered from Sam's Club, the upscale Walmart,
for $675 ten weeks ago. These devices are in fact very good.
They enabled me not only to hear the judge's and Kimberly's every
syllable, but also as I walked down Orchard Street to the bus,
what I hadn't heard for several years: the twittering of the
chickadees and titmice, the songs of the robin and the chirping
of the sparrows. The bus, of course, and the subway were
disconcertingly noisy, and after the hearing, when I got home I
was satisfied to replace the hearing aids in their velvet lined
containers and to retreat into the semi-silence in which I have
become quite comfortable. One of the role models of my early youth
was Thomas Edison, the inventor, and the noisy world of the hearing
aids reminded me of his assertion that he owed his inventiveness at
least in part to an ability to concentrate that he ascribed to the
deafness which he claimed ensured after a conductor on the Port
Huron Railway boxed him on both ears.

I feel much better after having printed out five copies of a
"Notice of Appeal" and five copies of "Appellant's Statement
pursuant to Massachusetts Rules of Appellate Procedure 9(c)(2)(iii)".
I'll take these to Konnarock with me, ready to mail if and when
Klemens telephones me that the mail has brought an unfavorable
decision from the Court.