Dear Marion,

Thank you very much for your perceptive criticism.
I like to be criticised. It makes me feel important.
Sometimes it even makes me feel warm, as when in my childhood,
my mother once spanked me - the only time ever - obviously,
spare the rod and spoil the child, - and felt bad afterwards,
she, not I; then to console her I told her I hadn't minded at
all. As a matter of fact, I'd been rather chilly, and now I felt
much warmer. So also after reading your letter.

In the pursuit of the instant lawsuit, the recognition of my
errors comes too late.  The briefs have been filed; the letters,
mailed.  I can't take them back. The best I can do is to promise
to try to be better next time.  Should I make that promise, when
I can't be sure that I have been wrong, when I see a possibility
that my claims to reason, clarity, definiteness are appropriate
to the situation? Am I able to do otherwise? Like so much else in
life, this litigation is a drama, a play, a comedy always on the
verge of tragedy.  We play our roles.

The words of Schiller, with which I recently tried to justify
my sister's antics come to mind:

Und setzet ihr nicht das Leben ein,
nie wird euch das Leben gewonnen sein.

The case viewed objectively, appears a catalogue of procedural
errors on the part of Nantucket's lawyers, the Plumbing Board,
The Superior Court, the Attorney General. These errors I point
out. Isn't that the lawyer's job? The rudeness of my criticism
is not its style but its substance. One doesn't at a cocktail
party point out to the guests that their clothes are wrinkled
and spotted, that their hair isn't combed, their ties not on
straight. But is a lawsuit a cocktail party? Paradoxically, the
law purports to resolve inherently insoluble problems by translating
them into procedure, and the lapses in procedure are then
systematically overlooked in order to provide the "happy" ending
which to devise is the ultimate task of the court. I have no
illusion that I am likely to get slapped down by the judgment.
Each agency is true to form, the court, the appellee and the
appellant. Hofmannsthal made lyrical the obvious: Es bleibt
ein jeder der er ist.

My last letter and sternest letter to Kimberly, (#15 on the Docket,
and #11 in my Internet Litigation file), addresses two issues
which are integral to the legitimacy of the courts: a) the neutrality
of the judge, and b) the integrity of judicial records. Kimberly was
right: If I understood him correctly Justice Kafker was indeed
soliciting and proposing to entertain an ex parte offer of "compromise"
from Nantucket, deliberations in which he did not invite me to
participate. He said "we don't usually do this, but we will wait
two weeks. Then we will do our job." If I weren't so adamantly
pessimistic I would infer that Justice Kafker was giving Nantucket a
last chance to back down, to avoid the judgment of the court; but
my preferred interpretation is that he was stumped by the political
complexity of his situation, and was looking for a way out. Kimberly,
I thought, sensed the weakness, and undertook to lay down the law
to the appeals court, telling the panel that Nantucket "couldn't"
obey an order to inspect the plumbing, that such inspection was
impossible. My reply, (#13 on the Docket, and #10 on my list),
embarrassed her and she attempted to regain the procedural advantage
of an ex-parte relationship with the court by telling me to shut up
and not disturb her tete a tete with the judge. Reminds me of old
crusty Judge Hutton in Abingdon Va, who solicited a pretty little
fledgling lawyer, Dorothy Boucher, (the mother of our current
congressman), saying: Honey, come up here and sit with me on the
bench. That's as figurative at it can get; and because Kimberly
insisted, like a very naughty girl, on her prerogative to sit on
the bench with the judge, I told her she ought to apologize.
We'll see what happens.

Now I must weigh my federal and state tax returns which I completed
last evening, to apply enough postage. Then do more putting things
in order and cleaning up.

I'd listen to three hours of Gilbert and Sullivan any day,
if it would get me out of even a single hour of Wagner.
More later - maybe.

Jochen

Marion Namenwirth wrote:
>Dear Jochen, Thankyou very much for your letter.  I
>spent a pleasant yesterday at home with my sore throat that became
>a cough,  editing Micha's novel, reading a few pages of Die Andere
>and Freefall (Economic Truth according to Joseph Stiglitz), and
>taking naps in rotation.  Feeling completely well again, I've
>been at work today.
>  
> Thankyou for mentioning the connection
>between Arthur Sullivan, Leipzig and Mendelssohn's students.
>I knew nothing about that.  I  had only heard that Sullivan
>came to regret that he was so successful at assembling these
>operettas because he felt it led people to consider him a lightweight
>to such an extent that he had difficulty getting traction as
>a serious composer, which he had the ambition and compositional
>skills and productivity to be.  Your words sent me to the Wikipedia
>article about Sullivan, and then to the one about Mendelssohn.
>Endlessly fascinating, that Wikipedia.   
>  
>I read with
>interest your recent exchange of legal letters with Kimberly
>Saillant.  Your scalding tone, the abandon with which you hurl
>your spear, worries me.  I want the Appeals Court judges to identify
>with you, to accept you as a reasonable, judicious, admirable
>person like themselves, who deserves more consideration and respect
>than he got from Nantucket.  Don't you fear that they might regard
>you as a kook, a loose cannon, when you come on so strong?  For
>example, you can tell Atty. Saillant that you disagree with her
>statement, that you see things differently, while avoiding the
>assertion that she has made a mistake, since that is likely to
>be perceived as humiliating.  Likewise when you instruct her
>to apologize to the Court, as though she were an unruly, careless
>child.  As you point out (though in the context of Virginia law),
>how your words and actions are perceived by the Court is influenced
>by "customary usage".  I can only guess what that might be.
>
> It seems to me that it's a question of strategy: how to express
>one's opinion, stand up for one's views, make a cogent argument,
>not be a pushover while, at the same time, appearing respectful,
>courtly, sensible, moderate.....but not obsequious or oleaginous.
> Well, you can see that this challenge is quite beyond me, or
>I would have found a far more subtle, less carping way of redirecting
>your litigious spirits. Forgive me, again.
>  
> Marion