Declarations and Exclusions

Lawyers Appreciate the Wisdom of Socrates

David Giacalone, through his pro se advocacy weblog shlep: the Self-Help Law ExPress has tagged me to join the year-end "lawyers appreciate" thread that started here.  A compilation of responses since the December 22 start of the project may be found here.  David tagged me in either or both of my online personae, and I choose to finesse the choice -- just ahead of deadline -- by posting this to both of my weblogs..

Some respondents have attempted a general assessment of what lawyers, as a class, appreciate.  Others have focused more closely on what they, as individual lawyers, appreciate.  I thought briefly of making a joke of it --

Financial Advisers Say "Lawyers Appreciate," So Buy and Save As Many of Them as You Can

-- but I just as quickly thought better of it (although it must be admitted that many of we lawyers could do with some saving.  But, I digress.). 

In the end, because so much of what attorneys do takes place between their ears and because the practice of law is so often concerned with getting at, or in some cases attempting to concoct a favorable version of, reality, I found myself returning to that old sly fox of ancient Athens, Socrates.

In law school, most upcoming lawyers are exposed to the so-called "Socratic Method," in which the professor -- generally in modern dress and typically not speaking Greek -- seeks to compel the student to find or discover or discern or make a lucky guess at the point of doctrine under consideration, much as the character we know as "Socrates" in the Dialogues of Plato does with his students or debating partners.  Plato's Socrates is concerned not with fine points of the law but with the Larger Questions on which the law, and all of engaged human life, depend: what is Good, how can we live in a way that is in keeping with the Good and, above all, how can we go about knowing that anything is True. 

Which leads me to the particular "Wisdom of Socrates" that I have in mind. 

It is most famously contained in the Apology, Plato's account of Socrates' own encounter with the legal system, the trial in which the older philosopher was convicted and sentenced to death.  Because all we know of Socrates reaches us secondhand, and because it comes to most of us in translation from a long-gone version of an ancient and foreign language -- discuss, if you wish, the multiple layers of hearsay involved here -- it can be stated in any number of ways, none of which carries any guarantee of accuracy.  My own favorite, by virtue of its relative simplicity, is this:

All I know is that I know nothing.

Here, for lawyers and non-lawyers both, is the beginning of all other wisdom.  Socrates may well have been pulling the court's leg a bit when he said it -- he so often gets the better of his philosophical sparring partners that we cannot but suspect that he actually thinks he knows more than a few things, and many more than his accusers to be sure -- but it stands as the indispensable starting point for most any other idea.  When he says he knows nothing, Socrates makes no claim that nothing can be known.  While some things may be truly unknowable, many other and important things, large and small, can be found out, and can be known, by the application of clear and careful thought combined with the genuine desire to find them out.  Knowing that you don't know them, or knowing that what you think you know about them is wrong, and acknowledging those limitations if only to your self, is the first step to knowledge. 

[Aside: Former Secretary of Defense Donald Rumsfeld inspired plentiful mockery when he spoke of "known unknowns," but his essential point was not that far removed from Socrates.]

Like "Go" in a game of Monopoly, Socrates' statement pays off each time you return to it.  As a lawyer, I appreciate its value every time I try to figure out what are the facts of a case and which ones make a real difference, or what rule of law applies to the problem, or whether some new or different rule ought to apply and whether it is possible to reach it, and so on.  Each time those questions are answered, it is likely that they lead to a new question.  By stringing together those answers, one eventually reaches a final answer, or at least a point past which one cannot or need not pass.  Often, because the questions aren't really new, the process is a speedy one, though it pays to return to what you think you know to be certain that you still know it.

As my more personal weblog reflects, my own mind goes inquiring into many things other than the law -- which is to say it is easily distracted, but what of that when the game's afoot? -- and in those inquiries Socrates' proposition is equally helpful.  I learn something new every day, and marvel to be reminded that I did not know it when I woke up that morning.  Life is, or should be, an endless sequence of discoveries, finding out what we did not know when we started and using that new knowledge to find out what more there is to know.  Socrates only stopped that process because he was compelled by the polis to do so.  We too, whether in or out of the law, should not stop from testing our own ignorance and adding to our store of what is not ignorance, until whatever day prevents us from going further with the task. 

T.S. Eliot, toward the end of "Little Gidding" in Four Quartets, writes

We shall not cease from exploration
And the end of all our exploring
Will be to arrive where we started
And know the place for the first time.

And, we might add, know that we did not know it before.  Wherefore this lawyer appreciates the wisdom of Socrates.

Appreciate and be excellent to one another.  Onward!  Into another New Year!

Great Decs&Excspectations

"200 million people have already stopped writing . . . blogs" but, three and a half years on, I refuse to succumb to the peer pressure.  Some housekeeping and such for the turn of the year:

• A New Year's Resolution

The level of posting on Decs&Excs has been down in 2006 from what I would have wished.  I have high hopes and good intentions toward correcting that situation in 2007 and toward offering more frequent and more useful/interesting posts on matters insurance-related, California-law-related, and California-insurance-law-related. 

• An Expression of Year-End Thanks

Most of the traffic to this weblog is generated by search engines and every reader is welcome, but I am particularly and perpetually grateful to those few readers who come here on purpose or who link here from their own weblogs and send readers in this direction.  Most of those referring weblogs are listed in the sidebar and I commend to the attention of any other reader who may not already be familiar with them.

• A Simplified URL

With a little bit of nail biting as I waited for the new settings to take hold, I have succeeded in setting things up such that this weblog can now be reached through www.declarationsandexclusions.com, without the necessity of using the old and lengthy (but still efficacious) TypePad URL.

• Coming Soon

To begin the New Year: John Garamendi remains Insurance Commissioner of California for another week, until January 7 when he is to be sworn in to the meaningless office of Lieutenant Governor.  He has left behind a number of unwelcome parting gifts for the insurance industry, and I will be taking a looking at some of them at the beginning of next week. 

• Coming a Little Bit Later

Also in 2007: Mark the calendar now for Monday, April 2, when Decs&Excs will again host an edition of Blawg Review.

[Photo by biewoef (Hilde Vanstraelen, Hasselt, Limburg, Belgium) via stock.xchng.]

Blawg Review Awards 2006

The Blawg Review Awards 2006 have been announced by the Review's anonymous Editor.  Congratulations to all of the winners, among whom are Decs&Excs supporters David Giacalone (Best Law Blog in the Public Interest, shlep: the Self-Help Law ExPress) and Overlawyered (Best Blawg Theme).

Declarations and Exclusions will again host an edition of Blawg Review on April 2.

Merry Christmas from Declarations and Exclusions

[Photo by ruzafa (Peter Hall, Valencia, Spain) via stock.xchng.]

Rumblings From the Guesthouse II: More Recent Posts at Overlawyered

Again, links to potentially-of-interest posts from my guest stint at Overlawyered:

• Oh, Snap! The Cold Claws of Justice Close on Fraudulent Work Comp Claimant

• Oklahoma Supreme Court Eliminates "Affidavit of Merit" Requirement in Med Mal Cases

Rumblings in the Guesthouse: Recent Posts at Overlawyered

These items that I posted yesterday as part of my guest stint at Overlawyered may be of interest to readers of this weblog as well:

• Florida Supreme Court: Forum Shoppers Need Not Fly South for the Winter.

• Juicy Legal Fallout from Cancellation of O.J. Simpson's Book Deal

• Injured Saint Sues Titans Over Raccoon Mascot Golf Cart Accident

Ritorno di Muse

Please take note that  E. L. Eversman's AutoMuse -- "call it a blawg, blog, or just downright useful information on automotive consumer and legal issues" -- has returned from a profound six-month silence.  The URL is unchanged, but the RSS feed has shifted along with the site's migration from Moveable Type to Word Press. 

Welcome back. Vrooom!

Home Away From Home for the Holidays

I am thrilled (that is no exaggeration) to report that I will be guest-blogging from December 19 through December 25 as a [woefully inadequate] substitute for Walter Olson at the indispensable Overlawyered.  I will be trying to do my part to fulfill Overlawyered's worthy mission of "Chronicling the high cost of our legal system."   

Please join in, and add Overlawyered to your daily weblog rounds if you have not already done so.

Sing a Song of Data Loss

In this iPodding age, with hard drives aspiring to the condition of Universal Jukebox, here is an interesting practical query on the insurability of digital music downloads:

Let's just say (hypothetically speaking) that I bought all my songs from iTunes at 99¢ a pop.  Let's just say.  So what if both my laptop and my iPod are destroyed in a horrible, cataclysmic ... hurricane?  Given that digital music is supposed to be actual property (that can actually be stolen, etc) does renter's insurance cover the $10,000 in lost songs?

Although it is posed in terms of renter's insurance, the question is an equally good one under a homeowners policy.  The answer will likely depend, first, on whether the insurance policy applies at all to the particular piece of equipment on which all that music was being stored and, second, on whether the policy applies at all to loss of data.  For purposes of this discussion, we'll assume that some more or less universally covered cause of loss -- say, an accidental fire -- is the culprit, so that we do not have to wrestle with all the "wind vs. water vs. whatever" issues that are causing such headaches in Louisiana and Mississippi courtrooms.

While every policy is different, computers or musical devices as tangible artifacts will likely be included under the "contents" coverage of a typical homeowners or renter's policy.  Coverage for contents is, in fact, the most common reason to purchase renter's insurance, since the building owner's policy is virtually guaranteed not to provide any protection for tenants' personal property.  If the particular policy either specifically states that it does cover electronic equipment, or if the policy covers losses to personal property generally and does not specifically exclude coverage for some or all electronic equipment, we are over the first hurdle.

Unfortunately, while electronic equipment itself is likely covered, the bits and bytes stores in and on that equipment very likely is not.  Most policies are likely to be written in terms of covering "direct physical loss" and data, even though stored physically, is often not considered to be "physical" in itself.  Additionally, many policies will contain specific exclusions barring coverage for the value of lost data or for the cost of recovering or recreating it.  This quote from a 2005 Pittsburgh Business Journal article on overlooked homeowners coverages sums things up:

Computers and data:  Do not assume that your home computer is automatically included in your policy -- especially if you use your home computer for work or in a home-based business.  Also, your policy may not cover the cost of lost, damaged or stolen computer programs, or the expense of recovering data lost or trapped on damaged hard drives and other media.  In particular, homeowners with home-based businesses should investigate riders or other supplemental coverage to adequately protect equipment, software and data.

That distinction -- between the physical hardware and the intangible information it contains -- is a fairly common one in insurance.   When data itself is injured or lost, with or without some physical damage to the equipment on which it resides, it generally is not going to be covered unless the applicable policy refers to it explicitly.  For more, this 2001 IRMI article on the question "Is Computer Data 'Tangible Property' or Subject to 'Physical Loss or Damage'?" gives an idea of how many different directions the courts have gone in debating the issue.

The upshot for worried iPod users: (1) Read your policy carefully, to get an idea of how likely you are to lose your investment; and (2) consider physical remedies such as off-site backups of music or data that you would not want to lose or (3) use a download provider (such as eMusic) that is relatively free in allowing re-downloading of previously purchased music.

An Afterthought:  Even if you have coverage on your policy that applies to the loss of downloaded music, you should only expect coverage for legally downloaded tracks and the insurer will be right to expect you to provide proof of what was lost and how it was obtained in the first place.  It has long been the rule that one who has acquired property illegally -- for instance, a thief -- acquires no title to and possesses no "insurable interest" in that property, rendering it effectively uninsurable. 

An Additional Afterthought: Remember, please, that insurance serves the purpose of compensating the insured for a loss actually suffered.  That is, it works to put the insured back in essentially the place the insured occupied before the loss occurred.  So, if there is no cost entailed in replacing that lost music, there is nothing for the insurer to pay: other than the time it will take to re-download, you have not lost anything and a payout for the original price of the downloads is simply a windfall.  Insurance would enter into it -- assuming that the applicable policy actually covers data loss of this sort -- only if there is some expense entailed in putting the insured right back where they started from. 

[Link to the original question via Idolator, where the ensuing comments reflect less than well on music lovers' opinions of their insurers. Photo by lyn belisle, via stock.xchng.]

Court and Spark, or, 'Careful With that Axe, Eugene'

Last December, I wrote about the very old-fashioned revivalist architectural pleasures of the beautiful 1929 vintage courthouse in Santa Barbara, California.  Most later court buildings tend to be architecturally unappealing in the extreme, especially the ghastly utilitarian hulks of the 50s and 60s.  Los Angeles County, I regret to say, has more than its share of the latter.

Here, however, is a model of a courthouse not in California but with a southern California connection -- the design is by Pritzker Prize-winning architect Thomas Mayne and his high-profile firm, morphosis, based in Santa Monica -- that is contemporary as can be:

This building now exists in the material world as the Wayne L. Morse Federal Courthouse in Eugene, Oregon.  As of this past week it became the new home to the Eugene Division of the United States District Court for the District of Oregon.  [That link takes you to the Court's extraordinarily drab, if functional, official website.]

Portland-based art writer Jeff Jahn has posted a lengthy and approving description, with numerous photos of the building's exterior and interior, at the regional art-oriented weblog PORT, to which I was pointed by Tyler Green's Modern Art Notes.

Jeff Jahn's post links to a report in The Oregonian, which in turn points to a 4-minute video tour narrated by Oregonian architecture critic Randy Gragg.  The video includes concept sketches a number of upcoming federal buildings, mostly courthouses, from big-name architects.  It is a mixed bag.  The design for the new courthouse in Las Cruces, New Mexico, in particular, looks like it was meant for an episode of the original Star Trek:

But let us return to Eugene.

The Los Angeles Times this week dispatched its own lead architecture critic Christopher Hawthorne for a look-see.  Hawthorne's report -- which also features some attractive photos -- begins with a charming anecdote on the clash in styles of the oh-so-cutting-edge Mayne and the judge overseeing the project:

[Senior District Court Judge Michael R.] Hogan, who says he was 'horrified' when Mayne landed the courthouse job, had been dreaming of a new building along the lines of Cass Gilbert's handsome, colonnaded Supreme Court in Washington, from 1935, a design symbolic of stability and bedrock ideals.  The main themes of Mayne's work, on the other hand, are the fragmentation and dissonance of contemporary life, which he represents with stark, slashing architectural forms.  But over time the judge and the architect reached a productive detente: Mayne turned Hogan into a fan of contemporary architecture who now wears black turtlenecks and cool glasses, and Hogan coaxed Mayne toward a more orderly vision of civic design.

At least that's how the charmingly redemptive narrative was shaping up as the $72-million Wayne L. Morse U.S. Courthouse was under construction.  The courthouse itself, which opened Friday, tells a more complicated story.

It is indeed the most humane and accessible public building of Mayne's career.  You can tell that even from the freeway overpass that wraps around two sides of the 270,000-square-foot, five-story courthouse.  And with its fluid exterior, wrapped in a graceful series of horizontal metal panels, it marks the beginning of a new formal approach for Morphosis, one in which ribbons of space replace canted, folded planes.

Ultimately, those "humane and accessible" qualities cool Hawthorne's enthusiasm: the expected Maynes edginess has been calmed sufficiently that there is a "faint sense of lost opportunity" about the project.  I am uncertain what Hawthorne was hoping for -- Oregonians have reason to be pleased that they were spared something like Maynes' authentically frightening Caltrans District 7 Headquarters, up with which we are obliged to put in downtown Los Angeles. 

(By a handy coincidence, Maynes and the Caltrans building were the subject of Hawthorne's final piece at Slate before he left to join the LA Times.  He referred to the building unflatteringly as "the Death Star," reporting accurately that "what it resembles from the street, more than anything, is the widest, most imposing wall you've ever seen".  It is not likely ever to rise in local affections to the level of its neighbor up the street, Frank Gehry's Walt Disney Concert Hall.)

Back in May, 2005, the pseudonymous and cultured Michael Blowhard -- who also authored the post that inspired my own on the Santa Barbara courthouse -- was decidedly skeptical over Maynes' design for Eugene:

What strikes me instantly about this building is how ill it suits Eugene, Oregon.  Eugene is a low-lying, overcast, bricks-and-trees-and-porches- and-uneven-sidewalks, logging-and-academia kind of town, half hippie-backpacker and half working-class.  But the GSA doesn't seem concerned with whether the building suits Eugene.  What strikes the GSA is Mayne's conceptual genius.  The citation the GSA awarded to Mayne for this building reads: 'This combination of order and artistry is an appropriate new symbol for the courts.'

Now that Mayne's design has been brought into the material world, Michael B's concerns seem less well-founded.  As Hawthorne mentions above, the site is bordered on two sides by a highway overpass and the new courthouse "replaces a Chiquita cannery on the east end of downtown Eugene."  That sounds like an overall improvement in the neighborhood to me.

I would certainly like to read first-hand reports from attorneys who actually make use of the new building.  As for me, this aesthetically-inclined attorney is making a mental note to find some excuse to see the thing in person, next time I find myself in that part of the State of Oregon.