Case No. 2433504, Knorps, 7/18/08, Los Angeles Board of Appeals

ALJ = Michael Abzug (Administrative Law Judge)

J = Christopher J. Knorps (Ex-Temp)

A = Alexandria Watson (Accountemps)

A: This is Alexandria Watson!

ALJ: Yeah Ms. Watson this is Judge Abzug, are you ready to proceed?

A: Yes I am.

ALJ:  Alright, the record is open, the case number 2433504, the claimant, Mr. Christopher Knorps, is present.  Also present on behalf of the former employer, Accountemps, is Alexandria Watson.  Ms. Watson what is your job title please?

A: I am a Metro Market Manager.

ALJ: The Administrative Law Judge is Michael Abzug, today’s date is July 18, 2008, the time is now 10:00 AM and the hearing is being conducted at the Los Angeles Board of Appeals.  The claimant has filed a timely appeal from a department (indistinct) determination, mailed to him on May 23, 2008, that held that he was disqualified for benefits under code section 1256.  The issue that we are going to be addressing today is how and why Mr. Knorps became separated from his most recent work.  If I find that he voluntarily abandoned work that was available to him, then the issue will be whether he did so with good cause.  “Good cause” is a legal term that is defined as a real and compelling reason to leave available work, the kind of reason that would have caused somebody in Mr. Knorps’s situation, who genuinely wanted to retain employment, to take similar action.  If he voluntarily left with good cause, he will not be disqualified for benefits, and the employer’s reserve account will be subject to charges.  Mr. Knorps, do you understand the issue that we are going to be addressing?

J: Yes, I do.

ALJ: Do you as well, Ms. Watson.

A: Yes.

ALJ: Ms. Watson, was a copy of the appeal file mailed out to you?

A: Yes.

ALJ: Did you review it?

A: Yes I have.

ALJ: Mr. Knorps, did you review….

J: Is this it? 

ALJ: The documents in the file?  The reason I ask that is because in a few moments I am going to mark certain of those documents as exhibits so that I can consider what they say as part of the basis on which I am going to make my decision eventually.  My decision is also going to be based on what other evidence is introduced at this morning’s proceedings, which, at a minimum I expect will include the sworn testimony of Mr. Knorps as well as Ms. Watson.  After I mark these documents as exhibits, I will ask each party if they have any objection to their admission into evidence.  You’re not required to make objections of course, but if you do I will consider them.  After I have considered those documents (indistinct) I will then take testimony.  It at least preliminarily appears that Mr. Knorps is the moving party of the separation, and we will begin by taking testimony from him.  I will ask him to swear to tell the truth which I am required to do by law, I will ask him a few questions about the issues that I have outlined a few minutes ago, and when finished, he can add to his proof either by supplementing his own testimony, introducing documents, calling witnesses, in case he thinks there is something I have inadvertently overlooked that I need to know in order to make a good decision.  I will also give Ms. Watson the opportunity to question Mr. Knorps if she likes.  Ms. Watson you are not required to ask the claimant any questions – I am going to give the employer a separate opportunity to tell me its side of the story – but if you want to ask any questions, I’ll give you that reasonable opportunity to do so.

A: Okay great, thank you.

ALJ: When we’re finished taking testimony from the claimant, we’ll take the testimony from Ms. Watson that will follow the same order of proof, that is I’ll swear her, I’ll ask her some questions, I’ll give Ms. Watson the opportunity to add to her proof the same way I gave Mr. Knorps the opportunity to add to his proof, and then we’ll conclude by giving Mr. Knorps the same right that I gave to Ms. Watson, that is if he wants to ask her questions he can do so, but he is not required to.  When we’re finished I’ll thank everybody for their appearances, I’m not going to make my decision today, I’ve got to make it later in writing and a copy will be mailed to each party, clearly (?) EDD, probably in about 20 business days.  Mr. Knorps do you think you understand the procedures?

J: Yes I do.

ALJ: Do you have any questions about them?

J:  No.

ALJ: Ms. Watson, do you understand the procedures?

A: Yes I do.

ALJ: Do you have any questions about the procedure?

A: No I do not.

(ALJ reads the various exhibits he is marking into evidence, exhibits 1-7, asks if there are any objections, to which Mr. Knorps replies no.)

ALJ: Ms. Watson, have you reviewed 1-7?

A: I have – I do have to say that the record of claim status interview is not legible to me – I can’t read the writing on the document….(A short discussion about this follows)

ALJ: Claimant states that he voluntarily quit because the company did not offer him permanent full-time work at the company.

J: That’s not, really….

ALJ:  Well just a second, I’m just reading it.  I’ll give you a chance to comment in a moment.  Claimant states he is looking for full-time work, not willing to do temporary assignment work.  Claimant states he did not want to be working there anymore.  He wanted to do something different.  He wants to write a book or novel.  Or technical writing, screenwriting.  If he does not have the experience

J: (scoffs)

ALJ: He wants to work in the writing industry.  Um.

A: Now just….

ALJ: One second, please.  I’m just reading it, and then everyone will be given a chance to comment, I’m not going to cut anybody off.  The employer said that the claimant is no longer working with the company and cannot provide any additional information.  The EDD basically concludes that claimant’s decision to voluntarily quit to look for work was personal, a personal decision, therefore, in their opinion, he is disqualified.  So that is the substance of the interview that occurred on May 22, 2008.  Now that I have read that to you, Ms. Watson, any objection to the admission of exhibits 1-7.

A: No, just so I completely understand, so this is the information that was gathered from my company, by the EDD is that correct?

ALJ: No, that’s not correct.  What happens when somebody separates from work for any reason and applies for benefits, there is what’s called a “claim status interview” which is a telephone interview conducted by the EDD to figure out whether the circumstances of the separation merit benefits under the law.  What I just read you were the notes of the department representative who spoke to the claimant and who spoke to the employer representative. 

A:  Okay, so the claimant let the EDD know that he was interested in writing screenplays, because that’s what I’m trying to confirm.

ALJ: That’s the allegation, yes.

A: Okay, then I understand.  Thank you.

ALJ: Any objections to the admission of 1-7?

A: No.

ALJ: Mr. Knorps, now that I’ve read that exhibit, would you like to raise any objections to the admission of 1-7?

J:  Well when I did that interview, I really don’t think the proper scrutiny was paid attention to.  I just feel as if the separation from the company was not as clear cut as being a “quit” or a “fire” or a “laid off,” okay?

ALJ:  Alright, well excuse me for interrupting you, I’ll try not to do it again, I’ll construe your remarks as an objection to the exhibits and respectfully overrule them, as I mentioned to you before the fact that I admit them into evidence doesn’t necessarily mean that I believe every word they say, or that they’re accurate, and it certainly doesn’t mean I am going to rule against you, it just means that I think the documents may be relevant – how relevant I won’t make up my mind until I’ve heard everything that you and Ms. Watson have to say so, 1-7 are received.  Mr. Knorps, please raise your right hand.  Do you solemnly swear, or affirm, that you will tell the truth, the whole truth, and nothing but the truth, so help you God?

J: I do.

ALJ: State your name please.

J: Christopher John Knorps.

ALJ: Alright Mr. Knorps I’m going to ask you a few questions.  How long were you registered to work with Accountemps?

J: Roughly six months – between October 28 to May 2, October 28, 2007 to May 2, 2008.   

ALJ: Alright, on May 2, 2008, where were you assigned, who was the employer at the time?

J:  Jefferies & Co.

ALJ:  What was your job title with Jefferies & Co.?

J: I was accounts payable clerk.

ALJ:  Full time work?

J:  Yes.

ALJ: And what was the wage at the time of separation?

J: $13 an hour.

ALJ:  And how long had you been working for Jefferies & Co.?

J:  Six months.

ALJ:  Alright well what caused the separation on May 2^nd?

J:  Well previously, about a month previous, my supervisor Maria Magpantay kind of talked to me about leaving.  It was kind of a mutual agreement to leave.  I did not tell her that I wanted to quit.  She didn’t tell me, that you know, she didn’t think my performance was up to standards.  I asked for a full-time position because there was one person who had recently left, and she said she wasn’t able to hire me full-time….

ALJ:  You mean a permanent position?

J:  Yes, with Jefferies & Co.

ALJ: I understand, okay.

J:  She told me that wasn’t going to be possible.  And when I started working there, Accountemps had told me it was going to be a 6 month temp-to-perm position, so my understanding was that at the end of the six months I would be offered a permanent position with the assignment company.  So when they told me, you know, we just kind of have to leave May 2, I didn’t really have any objection to that, because I had already started looking for new work – I had had a friend who tried to get me a job with UCLA and I was looking for something else, and it’s true I was trying to change careers from accounting, so there is some truth to that, but there is also just, the way it ended was ambiguous I guess, and it wasn’t properly communicated in the interview I guess.

ALJ:  Alright let’s back up a little bit, who at Accountemps assigned you the job?

J:  Shezzad Allaudin.  But Jessica has been my representative.

ALJ:  The person you spoke to about the offer was Shezzad?

J:  Yes.

ALJ:  And what did she tell you about how long the job would last?

J:  He said it would be six months.

ALJ:  Six months?

J:  Yes, but it was temp-to-perm.  And I guess maybe that wasn’t properly explained to me what temp-to-perm meant, but I was under the impression that it meant that, after you were there for six months, they would hire you full time.

ALJ:  The person you spoke to about a month before the separation, what was her or his name?

J:  Maria Magpantay, she was my supervisor at Jefferies & Co.

ALJ:  When you spoke to her and she told you that they weren’t going to hire you permanently, did she tell you that May 2 would be your last day?

J:  Well we agreed.  She said do you want to make it for a month, just say a month from now, and I said yes, I think it’s best if I leave in a month, I want to try to find something else.

ALJ:  Alright, I’m going to ask you a hypothetical, what do you think would have happened if you had said, no, I want to stay on past May 2^nd?

J:  She probably would have said that was okay.  If I had wanted to do I could have stayed.

ALJ:  Alright, so why did you decide to leave on May 2^nd rather than stay?

J:  Well, this is going to be…Well, I switched apartments from the West Side to Silverlake, and the offices were about a 5 minute drive from my place on the west side and now it was going to be like a 45 minute drive, so…

ALJ:  One way?

J:  Yes, I had commuted for a few days doing it, and it was just kind of assumed that once I moved to a new apartment I would move to a new job….In hindsight it was a mistake.  (laughs)

ALJ:  Well I’m not trying to confront you or make you uncomfortable.  I’m just trying to get information.  So you were living in Westwood and you were moving where?

J:  Silverlake.

ALJ:  Oh you were moving to Silverlake.

J:  I live there now.  But I was living in Palms before.

ALJ:   Where the new jobsite is.

J:  Yes.  The new job site is in Beverly Hills.  I just started working there this week.

ALJ: No, no.  I meant, they moved you from the west side to Silverlake at Jefferies & Co.  Is that right?

J: Oh no, no, their offices are on the west side.  I am talking about my personal apartment.

ALJ:  So you moved to Silverlake before May 2^nd?

J:  Yes, I moved there, like, April 28, that’s when my lease began.

ALJ:  Okay, anything else, did you have any other job to go to at the time you abandoned work on May 2^nd?

J:  No.

ALJ: Anything else you want to tell me?

J:  I believe that’s all the relevant information.

ALJ:  Okay, thank you.  Ms. Watson are you still with us?

A:  Yeah, I’m still here.  I only heard bits and pieces of Christopher’s testimony, I don’t know if it was my phone or if he’s on a cell phone that’s cutting out.

ALJ:  Well I wish you would have told me that before this time, we could have tried to make the testimony more audible to you, what is it you want me to do now that you haven’t heard it?

A:  Well I think I got the gist of it, I just want to tell you that I don’t think I heard everything, I just didn’t think I was allowed to interrupt.  I apologize. 

ALJ:  That’s fine.  Let me do this, what I will do, is attempt to accurately summarize what Mr. Knorps has said, and Mr. Knorps why don’t you listen carefully and if I’ve left out anything material at the end you can add it so that Ms. Watson is fully informed.  Okay.  Here’s what he said.  He said that he had been registered to work for Accountemps for six months.  He had one job only – apparently – and that was with Jefferies & Co., which was located on the west side.  He was accounts payable clerk, full-time, and his wage was $13 an hour.  He was given the assignment by a man named Shezzad who told him that it was a six month temp-to-perm assignment, so that, for about five months, he went along and worked, and then had a conversation with his supervisor at Jefferies & Co., Maria Maganya, about whether he was going to be given a permanent position.  Ms. Maganya informed him that he would not and asked him basically what he wanted to do, and whether he wanted to make May 2 his last day, and he said – he agreed.  He agreed.  I asked him whether he believed that continuing work was available to him if he had told Ms. Maganya if he had told her that he wanted to continue working as a temp, and he said that he believed continuing work was available to him, if he wanted to work as a temp, but he decided to leave work on May 2, 2008, because he moved from the west side to Silverlake on April 28, 2008, and he found that the switch from a 5-minute commute to a 45-minute commute one way was burdensome, and that he just generally felt that since he had switched apartments, he should probably switch jobs too, which in retrospect he believes may have been a mistake.  At the time he left available work on May 2^nd, he did not have another job, although he was hoping to switch industries.  Mr. Knorps have I summarized your testimony accurately?

J:  Very accurately.

ALJ:  Anything else you want to add to the record?

J:  Just Maria Magpantay, was her name.

ALJ:  Anything else I material I missed?

J:  No.

ALJ:  Ms. Watson, did you hear me?

A:  I did absolutely, thank you so much.

ALJ:  Any questions you want to ask Mr. Knorps?

A: No, I think it’s pretty clear cut to me.

ALJ:   Then raise your right hand.

A: Right hand raised.

ALJ: Do you solemnly swear the testimony you are about to give will be the truth, the whole truth, and nothing but the truth so help you God?

A: Yes I do.

ALJ:  State your name.

A:  Alexandria Watson.

ALJ: And your job title?

A: Metro Market Manager.

ALJ: Alright Ms. Watson is there anything that the employer wants to add to the record that you think I need to know before I close it?

A:  The only thing I would add is that Jefferies & Co. is a consistent client with us, and they pretty much never convert candidates to permanent.  So the documentation in my system for this particular assignment states that it was long term, comma, possible temp-to-hire, and we always let candidates know that there is a possibility that things will go temp-to-hire, but this particular candidate…we’ve had candidates work out there for three years on a temporary engagement and not convert.  So I just wanted to make sure that was stated clearly, that I know that we did not assure that this was going to be a temp-to-hire.

ALJ:  Well, okay, that’s fine you have stated it, and I don’t have the impression from Mr. Knorps’s testimony that he was in any way guaranteed a permanent position.

A: Okay.

ALJ:  Alright, anything else?

A:  No.

ALJ:  Alright Mr. Knorps any questions for Ms. Watson?

J: No.

ALJ:  Anything else you want to add to the record that you think I need to know?

J: No.

ALJ:  Alright, okay, well Mr. Knorps good luck out in Silverlake.  I hope things turn around for you, and that your switch to a new industry is successful.  Take care of yourself.  This record is closed. 

Negligent Infliction of Emotional Distress: Facebook Etiquette

I have recently become involved with the BLS Advocate. All readers should check out www.blsadvocate.org because they've got some pretty cool stuff up there (check out the classifieds). I proposed writing a weekly column entitled "Negligent Infliction of Emotional Distress" about the various distresses inflicted upon law students by third parties. At bottom, I guess, all of these columns could have the bottom line of determining if there were a tort cause of action against the third party. The topic this time is Facebook Etiquette. So, I guess, Facebook is the third party. Could they be liable for intentional infliction of emotional distress? No way-unless the circumstances were exceptional. But could they be liable for negligent infliction of emotional distress? Probably not - just because, as my little intro points out, it's a tough case to make as it is...

I had to edit this down to 750 words for the BLS Advocate, but I present it to here, in its unedited full, 2,916 word glory:

Negligent Infliction of Emotional Distress: Facebook Etiquette
By Christopher J. Knorps
DISCLAIMER:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Restatement of Torts, Second, section 46: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.”
Comment d:
“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
“Almost all states have adopted the tort of intentional infliction of emotional distress, but only a minority of courts have been willing to recognize an independent cause of action for emotional distress alone against defendants who are no more than negligent. (Shapo, Principles of Tort Law, 3d ed., 381)

BY READING THIS COLUMN, YOU HEREBY AGREE TO FORFEIT ALL POSSIBLE CLAIMS AGAINST THE AUTHOR

Introductory Note to First Column

First of all, let me say, it’s good to be back. This is my first piece of journalism written in a school-sanctioned medium in more than eight years. I have missed the opportunity to make my voice heard, and while there may be plentiful amounts of my own writing at flyinghouses.blogspot.com, that website hardly registers in the national consciousness. This is not to say that the BLS Advocate registers in the national consciousness, but it is at least a resource that other students can use to recognize that they are not alone.

This column is entitled Negligent Infliction of Emotional Distress because it may cause that in the reader. To be sure, I have never shied away from writing about controversial topics, and I have often paid the price. I expect to get a fair amount of hate mail after every column I write – but my goal is to inspire thoughtful comments that can start a conversation about reasonable values that we can all share as law students. Given its ubiquity, I felt that facebook would be the best topic for my inaugural column.

The Incident Giving Rise to this Column

On February 1, 2012, I posted a two-and-a-half minute video that was recorded on February 1, 2004. This video was shot in my dorm room at the 13th St. residence hall of NYU. The video was shot very late in the evening and involved some eight people. I narrated that we had all gotten married. Many of us were drinking and/or smoking cigarettes. I was two-and-a-half months shy of my 21st birthday, and most of the people there were under 21. A close relative of mine was also there. I wrote, “Happy 8th Wedding Anniversary!” and included the names of the four people that I had been married to that evening. I posted this around 11:00 PM and went to bed.
Around 6:00 AM, my phone beeped twice – two text messages. Next, it started ringing. I let it go to voice-mail, heard that a voice-mail was left, heard the phone ring again, let it go to voice-mail again, heard that a voice-mail was left again, and finally got out of bed. I saw the texts were from my close relative. “Take it down,” was all I needed to see to know what was up. I powered the phone down. Then, consumed by guilt and unable to fall asleep, I turned on my computer, went to facebook, and untagged everyone from the video. Then I was able to fall back asleep.
But not for long. The first thing I did after waking up a couple hours later was to check my e-mail and facebook. I also listened to my voice-mails, found there were four, heard my close relative call me an “asshole” in one of them, heard my close relative’s significant other leave a message that was very measured and polite, and finally heard my close relative crying, apparently walking on her way to work, about the horrible thing I had done.
In an e-mail, another friend in the video sent me a polite explanation, saying that he was an employee of the federal government, and he had actually just had a meeting about these sorts of things, and how people should protect their reputation at all costs, most especially on facebook. His argument held more water to me – and I took it down. My close relative continued to text me. I told her she had little reason to fear disciplinary action. She said she didn’t fear disciplinary action, but she took my lack of concern to be an affront to the reputation that she had worked very hard to build and maintain as a 27-year-old female in her workplace. I wrote, relax, it’s gone. I wanted to add, you can take that stick out of your ass now, but did not want to cause any greater ire.

Perhaps it is worth noting that another person in the video, a PHD candidate, did not object whatsoever, but rather commented on it nostalgically, saying it was a perfect representation of her college experience.

Perhaps it is also worth noting that this same close relative saw what I had written on my younger sister’s facebook wall. My younger sister is seventeen years old. She is waiting to hear back from University of Chicago. She is very smart and will probably be very successful in her career, perhaps because I had to move back home in 2008, and lived with her for two years, and was able to give her a fair amount of good advice. But I digress. The controversial post was a joke, sort of. We had gotten into the habit of playing Mario Party 8 on Wii. For those unfamiliar, Mario Party 8 is a game where you can have up to four players. You pick a character (Mario, Luigi, Toad, Toadette, Yoshi, Peach, Boo, Daisy, Dry Bones, Wario, Waluigi, Hammer Bro, Birdo, or Blooper), you pick a board (Tycoon Town being one of my personal favorites—as the strategy involves investing coins in hotels and gaining equity that determines how many stars you are entitled to and carrying as little cash as possible, so that when you have zero coins and land on a red space, and are supposed to lose three coins, you lose nothing –we shout “discharge!” when that happens and it is fun for all), and you pick how many turns you will play. Each turn ends with a mini-game, which takes about two minutes or so. The goal of the game is to get as many stars as possible. It is one of the best games for a real party and if anyone has a copy and wants me to play I will gladly put off writing my paper for Employment Law a few hours longer and play as many turns as you like. Moving on…we had gotten into the habit of playing 50-turn-games of Mario Party 8 – my younger sister, my younger brother, and me. I wrote a message to the effect that, we were reserving the television on December 23, 2011 from 6 PM – 1 AM for two, back-to-back 50-turn games of Mario Party, and that I would supply the adderall. When my father returned from the airport with my close relative in tow, he took me aside into his office and said, “Take all that stuff down! Don’t you realize that it is a violation of federal law to hand out prescription drugs? You are seriously jeopardizing your career by putting up crap like that!”

This prompted a response on my status a couple days later, to the effect that, people should realize that what I write on facebook is not meant to be taken seriously. Approximately half of the time, I am joking. Before you judge me based on what I write, please ask me what I meant. Context is everything.

With that long preamble in mind, I will now address the role of facebook in the typical law student’s life.

History

Before there was facebook, there was Friendster, and before there was Friendster, there was myspace, and before there was myspace there was…..nothing? Hardly. Before myspace there were chat rooms and dating sites – social networking in its infancy – and perhaps another brief story (this one truly brief, I promise) will be illustrative.

It was 1996. We had just gotten America Online installed on our home computer. I had gone on chat rooms with other friends before, but now I could do it on my own. I thought I had to pick a cool name. I looked at my shoes. Nike. Nike is kind of cool, but too obvious. How about I substitute a D for the N, and add the year? Sounds great! So, Dike96 became my screen name. When my parents found out about this, they were quite upset. It prompted this conversation with my mother: “Mom, what does Dike mean?” (It is worth noting here that there are two definitions of the word—and actually, with the spelling I used, mine was the more innocent of the two—but the internet has never been a place where double entendres are ignored). “It’s a derogatory term for a female homosexual,” she said. My parents were quite concerned that I would go into chat rooms with such a screen name and become an inevitable target for online predators – arguably still something of an obscurity in those days. The screen name was deleted, and when I got my own computer in December 1997, I started going by jckchicago on AIM.

What does this story illustrate? I don’t know. I joined Friendster and myspace sometime in 2003, and I joined facebook in early 2004. I like to think of myself as something of an “original” member who has held fast through the years and changes, and who has never compromised his artistic integrity by censoring anything he has posted (with the exception of using ****** to fill in swear words). People tell me I’m hard to find on facebook. This helps me feel less vulnerable. That I have two different names, which is confusing, is another factor that helps me feel safer than others when posting questionable content.

Law School and Facebook

In law school, you will go to events held by the career services center. They will tell you take anything that is even the least bit questionable off of your wall, and out of your photos or videos. They will tell you that it is not worth it to risk losing what is probably the most important job search of your life by leaving up some stupid picture of coughing out an ocean of smoke after a massive bong rip. The picture may be funny – yes – but it will automatically disqualify you for consideration for any job – especially one where they require a drug test (note here: USPS interns are required to take a drug test – you’ve been warned). It is monumentally stupid to allow anything that could potentially result in a reputational compromise to be seen by anyone, especially those in charge of hiring at a firm.

But what if no one actually searches facebook to spy on your profile? What if they can’t see your profile unless you accept them as a friend? I think most people are aware they can change certain privacy settings to avoid these kinds of situations from happening at all.

Moreover, what if no one wants to search facebook for your profile? What if you’re not the sharpest tool in the NYC Legal Market and you’re not going to be considered for any jobs, period? Then, what’s the big deal? Is the NYPD or District Attorney’s office going to search your profile, see some picture that may be probable cause for a warrant for possession of marijuana, and bring formal charges against you? No! Is your goofy younger brother going to think a joke about taking amphetamines to have the fortitude to make it through 100 turns of Mario Party is funny? Yes!

Maybe it’s worth noting that my friend count on facebook used to match my LSAT score, and my weight (somewhere in the low-to-mid 160s) and is now, two years later, up to 433. Obviously, being in school when you are on facebook can have a huge impact on the number of friends you have. My younger brother and sister, for example, have over 800 (perhaps my sister has over 1,000). Do they really know all of these people? I don’t know. But one thing is certain: the more friends you have, and the better you are at expressing your love for them, the stronger your “intangible asset” will be as we wade through this technologically-driven age. But I digress.

This is my criteria for being a facebook friend: you have to have had a meaningful conversation with the person you seek to add.

That is the only rule I abide by. I do not refer to myself as Christopher John or Christopher Jack or John Jack or Jack Johnson or C. Jack or Chris K. or Jack K. I use my name as people know me. I do not fear the facebook police, and neither should you.

Privacy is within the “penumbra” of rights recognized in the Constitution by the Supreme Court, and while this privacy generally refers to sexual matters, it should one day be expanded to cover communications on facebook. Facebook has just gone public. There’s $5 billion in shares out there. Of course, it’s your choice what you put out there, but honestly – why are you on it?

You are on it because everyone else is on it. You have cell phones because everyone else has cell phones. You text constantly (and have an unlimited number per month) because everyone texts constantly. You share pictures of cute kittens and puppies because everyone shares pictures of cute kittens and puppies. You are on it because you want to keep up with the friends that you don’t see everyday, or to take the friendships with those you do see every day to another, more surreal level. But also, you are on it just to stay connected – to “network” if the need arises (and that need will arise, if you believe that recent trends in the employment schemata are here to stay). And you are probably on LinkedIn for the same reason, but probably realize that facebook is probably a stronger tool than LinkedIn.

Now, I am on LinkedIn, and I post almost nothing on my profile (I don’t even think I have a picture yet), but there, I will exude professionalism. I am professional enough on facebook. I list all the places I have worked and I have no shame about what I post, who I tag, what I comment, or what pictures I retain in my profile.

But that day, back in December, when I wrote that status about asking before you judge, I added a hash tag, as has been my practice in comments or status updates deserving of some further witticism. The hash tag on this day in particular was, #iamnevertalkingtoanyoneeveragain, which is what Kafka wrote in one of his journal entries. The problem is thus an existential one that goes to the very heart of colloquial conversation with a friend, or classroom commentary – anything I say may be subject to someone else hearing without my expressed consent – and my reputation is bound to suffer, one way or another. Better not to speak, better not to say anything, better to sit quietly in our rooms for all of eternity, never speaking a controversial word, never composing an inflammatory sentence, waiting, quietly, for the polite offer of a job.
Of course, that’s not the way it is. I know I’m crazy. I know you won’t listen to me. So go on, keep telling everyone you’re so happy in your relationship, that you just got engaged, that you just got married. Tell people to look at your wedding photos and have them comment about how absolutely beautiful you look. Wish people a happy birthday when facebook tells you to do so. When you have a baby, take many pictures and post them often, so friends can keep commenting about how cute they are. When you get accepted for a prestigious fellowship, announce it to the world, so that everyone can congratulate you.

However, never announce that awesome grade you got in Evidence – that would be rude. Also, never go on personal attacks – it is just tres declassee. Finally, preach your politics to the most obnoxious degree possible. Point out how dumb Gingrich, Santorum, and Perry are, and decry homophobia, racism, and all other morally reprehensible positions, so long as your views fall in line with the norms endorsed by your influential associates, colleagues, and peers. Never admit that the view opposite yours holds any water whatsoever. Follow these rules, and success will be yours.

Christopher J. Knorps is a 2L at Brooklyn Law School. He has written two novels, a book of short stories, and a memoir of his 10-month-stint in L.A. None of his creative writings have ever been published in print form. He enjoys studying bankruptcy law. He ranks in the upper 55% of his class. You may find his blog by visiting flyinghouses.blogspot.com. It consists primarily of book reviews, a dozen or so film and music reviews, a few pieces of sports journalism, and a light smattering of “special comments” about the study of law in 2010-2012.

Manic: A Memoir - Terri Cheney

My first year of law school was an emotional roller coaster ride. One year ago today, I was seriously debating dropping out, taking my $10,000 in debt, and walking away from it all. It clearly was not worth it. Yet something told me I would be too afraid, thinking that all of my friends and family and colleagues would judge me for wasting so many years studying for the LSAT, applying to schools, and getting this "higher degree" of education on track. Here I am halfway through. The second year has been better (so far - and we do not yet know our grades), but the anxiety will never end until we find our job and support ourselves like normal people are supposed to do.

I digress. I often told my older sister about this strange phenomenon which I had been experiencing since 2008 or so. I called it a "rapid rapid cycle of manic depression" - a term I had gleaned from wikipedia. Basically, it involved a cycle from a manic to depressed state every 24 to 48 hours. For me, it was every other day. Sunday I would go to bed hating life inordinately. I would pray that I would have a heart attack in my sleep and never wake up, never have to grow older and get lonelier, never have to go on welfare, never have to live sober and try to attain happiness. A little part of me would say, it's okay, tomorrow, you'll have your rocket fuel. Monday I would wake up and feel this sense of empowerment, like I could do anything. I could sit down to study and be enormously productive. I could talk to everyone without feeling self-conscious. However, I would have trouble falling asleep Monday night. Tuesday would be depression. Wednesday would be mania. Thursday would be depression. Friday would be mania. And so on. The only way to subtly affect this pattern was to self-medicate. My sister told me I should read Manic so I did.

Manic is the story of a woman who clearly suffers from manic-depression. Anybody who reads this book will inevitably think of James Frey and his famous fake memoir A Million Little Pieces. I have not read that book, but this memoir presents scenes that are so over-the-top that a reader cannot help but think that Cheney, a lawyer, is using a little bit of hyperbole for emotional heft. However, Cheney comes off as sincere, and her goal in writing the memoir wholly admirable. Who knows what Frey's intent was - warn against the dangers of drug addiction? I do not know. I do not want to particularly read that book as it seems a waste of time.

Many people may consider this book a waste of time but it is relatively short. It took me a while to read because of other obligations. However, the main audience for this book is manic-depressive attorneys or law students. There is little to no legal jargon in this book so non-attorneys will probably enjoy it more and the myth that a professional career in law is a surefire way to a lavish lifestyle will be propagated just a tad bit more. To be fair, Cheney leaves her job in the legal world behind in the end to write, and explains it in this pithy aside:

"It took me sixteen years to realize this. Sixteen years of reassuring myself on the way to work every morning that there's no such thing as a happy lawyer. It was just this particular case I was working on, this client, this judge, the latest Supreme Court ruling, the airborne viruses in my corner office. Perhaps if I tried another firm. So I tried another firm, several other firms in fact, each one bigger and better and more prestigious than the last. I landed higher-profile clients and took long, exotic vacations, and made a considerable amount of money. And I went to parties, a whole lot of parties, for every cause imaginable, or no cause at all. I billed the time regardless.....
If you nurture it long enough, a lie can become a life. Bad nights don't surprise you much after sixteen years. You come to expect them. You just don't expect them to go on forever. I should have known that the bout of depression that finally ended my career was the worst one yet, when I ran out of business cards and didn't have the energy to order new ones. Nothing mattered to me at that point except the pain, and the pain was everywhere." (234-235)


Cheney was an entertainment lawyer, arguably the dream job of many a law student (myself included, though I don't pursue it relentlessly as I go to school in New York, not L.A. - Cheney went to UCLA Law). To repeat, she does not write so much about her daily practice as much as her "pharmaceutical cornucopia." Perhaps it was reading this book that finally led me to see a psychiatrist and obtain prescriptions for Celexa, Ambien, Klonopin, Ritalin, and Adderall. The combination has worked well for me over the last few months but the concerns about chemical dependence remain. I do not recall many passages parlaying this particular concern, but I do believe Cheney mentions that she will probably be on medication for the rest of her life. She does, at the end, point to the need for sobriety, as many non-diagnosed depressives tend to self-medicate.

There are many memorable episodes in this memoir--chief amongst them a few suicide attempts, and stays in psychiatric wards. There is also a whiff of the bizarre, when Cheney describes her relationship with food, when going through depressive episodes where she would sleep 20-22 hours a day, and eat for the time she was awake:

"My mother went grocery shopping one day a week, usually on Sunday, so by Friday we'd be almost completely out of food. I clearly remember those endless Friday nights when there was nothing left in the cupboard and depression was gnawing a hole in my stomach. I had to eat something, anything. Toward the end of my depression, I ate whatever was there: iced coffee packets, bags of flour, spices ranging from anise to fennel to marjoram to thyme. Of course my body eventually rebelled and I wound up throwing up half of what I frantically shoved down my throat. I didn't stop until I finally fell asleep, exhausted, with my hand still clutching whatever I was eating." (191)

There is not much more I can say about the book that will not spoil any possible readings of it. In short, there is nothing offensive about it to me. I do not complain about people being "whiners" because I am a whiner myself. People that don't understand depression will probably still write it off and erroneously infer that Cheney is exaggerating. While I may not be as depressed as her, I can certainly relate to certain portions, where, for example, she describes in a rather profound way, hypomania as an idyllic state where everything seems (and perhaps is) possible:

"I've looked in the mirror when I'm hypomanic and even I can see it: my eyes are an open invitation, a bottomless well of empathy. 'Trust me, tell me everything,' they say, and people do. Not just men sitting across from me at a candlelight dinner, either; and not just men, for that matter. Men and women everywhere seem compelled to talk to me, touch me, give me their confidence. It happens in the oddest of places: in the aisles of the supermarket, waiting in a movie line, sitting at a coffehouse, and especially in elevators. Hypomania breaks down that invisible wall that exists between well-mannered strangers. There are no strangers anymore, only unknown friends, waiting to tell me their stories." (208)

In summation, I am not jealous of Cheney for writing a memoir that became a New York Times Bestseller. I usually am jealous of such authors. While the book may not be a pleasure to read, it is a book that has something to say, and will probably help a lot of people. It also may create a small and unnoticeable increase in business to the pharmaceutical industry. But that is probably just a sign of the times.

Special Comment - On Using Movie Quotations for Commemoratory Purposes; on “ATL,” on Cyber-bullies, on Entering a “TTT” at a Time of Economic Turmoil

It has been a long time but here is the first new post on Flying Houses since August. This probably isn’t the best time to be doing it, either, as I should be taking down the notes I just wrote on Compulsory Joinder and Intervention, and transcribing them into my computer. But we can only be such machines when it comes to legal work as may be reasonably expected.
This is a not a personal check-up 9/10 of the way through the semester. This is a response to a (now not so recent) post on a popular website for the legal profession. Here is a link to that post: http://abovethelaw.com/2010/11/brooklyn-law-2010-class-gift-is-more-like-a-terrible-high-school-yearbook-quote/.

For those uninitiated, Above the Law is an online legal tabloid that is basically the TMZ or Perez Hilton of the legal profession. It is something to read on a lunch break, something to laugh at, nothing to be taken seriously. However, this post in particular affected me in such a personal way that I seriously wanted to go out and kill myself, and I would entertain a claim against them for negligent infliction of emotional distress, but I know that would probably not be a very good claim (perhaps it would be protected by the first amendment? perhaps I could not prove any direct physical injury?). Why do I have such a “thin skull” you might ask?

The post itself is nothing particularly untoward. It merely claims that the Class of 2010 made a mistake in the quote they decided to put on a plaque in the library. The quote is from A League of Their Own, a film about women in the 1940’s who decided to form a baseball league to counteract the suspension of Major League Baseball and its many players signing up for service in World War II. There are many quotable moments in the film, but the one the Class of 2010 chose happened to be this: “It’s supposed to be hard. If it wasn’t hard, everyone would do it…The hard is what makes it great.” Automatically, this is turned into a sexual reference, which doesn’t really make sense given the second sentence, but this is immaterial. Should quotes from movies be plastered on the walls of law schools? Don’t we have “higher values” than those of popular culture? (Please don't let us start believing that there are better quotes to be found in film than literature--even judicial opinions would be better fodder). The class has asserted that it strove to begin a tradition, whereby students would touch the plaque as they pass under it while coming down from the second floor of the library. I have not seen anyone do this and I am afraid that if someone was seen doing this, they would be laughed at.

However, there were many comments to this post that were certainly untoward, and a source of my emotional distress (one other article on ATL, written by a psychiatrist who had also been through law school, bemoaned the opportunities of those holding J.D.’s but seeking employment apart from the legal field, which also contributed to said distress). The very first one reads “Crooklyn = TTTT.” Now I am not sure what the fourth T signifies (TTT signifies “third-tier toilet,” a derogatory term for a school not ranked in the top 50 in the nation), but the statement itself, posted by someone known as nothing more than “$$$,” certainly sends a harmful message. The next comment, posted by “Wow,” points the reader to Brooklyn’s budget planner page on its website. It reads, “Lulz at the price tag for this dump!!” Is “Lulz” some variant of LOL or is it something more nefarious? BLS is expensive, but so are most law schools. Scholarships are the only way a student can justify the enormous price tag after already having been through so much previous education. The next comment is from Kenny Powers who is a character on the HBO series Eastbound and Down and he offers the prescient wisdom (for those of us walking into final exams as an already uphill struggle), “If at first you don’t succeed then maybe you just suck.” A couple others joke about how much Kenny Powers sucks, then someone makes fun of the “living with parents” column of the budget (taking housing out of the equation) because that is what students will be doing after graduation. From here on in, the comments become more sporadic and less focused. Apparently, “Watch your head,” was another option for the quotation. This would have been sort of eloquent given the state of legal hiring patterns in 2010. Someone brings up a better quote from the same movie: “You know, if I had your job, I’d kill myself. Wait here, I’ll see if I can dig up a pistol.” This would also have been better, but dark, very dark, and law schools should not be propagating dark thoughts, though they inevitably must.

Now comes the painful part—an alum from BLS posts and sticks up for the school, and legal education in general, saying that it will pay off over time, and not amortize or depreciate like a car. They then get taken to task for failing to discern that student loans accrue interest and therefore may be considered technical amortization/depreciation. Another person says the plaque is fitting for BLS students because women baseball players ended up unemployed and broke. Other potential quotes are considered from the movie: “There’s no crying in law school” and “You’re gonna lose. You’re gonna lose.” There is then a discussion of a possible typo on the plaque in the use of the ellipsis. Blue-booking rules are debated. Someone else points out that all of the comments are cynical, and that everyone posting is an a-hole. A very dry reply read “Law students generally are not cynical. You have to graduate and realize the harsh realities of life and being unemployed/underemployed with massive student loan debt before the cynacism (sic) kicks in.” Another person named “<2012>” simply writes, “You are DOOMED.” Another person suggests the school hang a plaque saying, “See 11 U.S.C.A. 523(a)(8).” This was fairly clever as it forced me to use WestLaw to look up what it meant. Here is a quote that seemed particularly appropriate: “Let me sum up what I think of you when I hear you go to Brooklyn Law (particularly class of 2012 or 2013): (1) You weren’t smart enough to get into a better school, and (2) you’re even stupider than I would have thought otherwise because you’re paying an exorbitant amount of tuition. WTF are these people thinking, particularly those who enrolled this year in the middle of a recession?”

The other contenders for the quotation for the plaque are then listed near the end of the thread. (none of which I like very much, except for this one: "The bravest sight in the world is to see a great man struggling against adversity." -Seneca) And there we are. I luckily did not post anything myself on this thread, because then I would know the pain of a direct attack. I have had enough experiences with that on the Speakeasy at PW.org to know better.

I don’t know if a legal education is worth it or not if you go to a TTT school and this post has given me certain doubts. Of course, one can always tell themselves to buck up and give it their best effort regardless, but can you really forget you’ve seen something awful? Or does it pay to not have an “Ostrich problem?” If I am substantially certain that my education is a waste of time, but I insist on pretending that everything is going alright, aren’t I just as guilty of wasting an education? This is like whether or not I wanted to check my Torts midterm grade last week. I could have not looked, and felt better, but because I did look, I know I am in grave danger, and some drastic measures must be implemented if I am to recover and not waste this opportunity I’ve spent years putting together.

Or are cyber-bullies just out to get everyone regardless, to hide behind their computers and make acid-tongue comments in an effort to convince strangers that they are witty or intelligent, when they really just come off as mean. Or is it just a way to blow off steam? I do know one thing. I don’t feel very good about where I am or what I am doing. It’s not the website that made me feel this way, but it certainly didn’t help matters. Assumption of Risk would be their defense in an action. Law students attending less prestigious schools or with poor academic performances should enter ATL at their own risk. If you want to ride “the Flopper,” you should know that you may fall down. You may not sue ATL for NIED because it is on the internet, and the internet should not be able to hurt you physically. Also, cyber-bullies are not within the exclusive control of ATL. They are not employees—they are followers, they are fans.

I have to bring in the personal element and decide whether or not BLS is a good choice or not. There are a few frustrating elements about this school.

#1: The Bookstore. Admittedly a minor issue, but 1Ls had a rude awakening this year when they found that few of the books they ordered would be available from the bookstore until the second or third week of class, forcing us to find the people with the books, xerox assignments, and generally feel that we did not have the tools to properly comprehend the material. However, the bookstore apologized and offered to pay shipping costs incurred from books bought from outside sources.

#2: The Halls, The Claustrophobia: I always preface this complaint with the statement that, for me, the choice came down to Loyola Law School in Los Angeles, or BLS. I do not think Loyola has the same problem as BLS as their campus has nearly a dozen buildings or so and everything is very spread out and aesthetically pleasing. BLS, by contrast, slams more than 1,200 students together in a giant rectangular building, and puts most of the major classes on floors 4, 5, and 6, resulting in bottlenecks at elevators and sometimes stairwells and hallways—not to mention a generally cramped atmosphere inside the actual classrooms. This underscores the fact that we are all competing for a very limited number of positions and that all of this hard work and discipline and struggle may end up as the ultimate nightmare yet.

#3: The Competition. Brooklyn may be ranked #67 in the nation or whatever, and #4 or #5 in New York City in general, but that does not mean that its students are less intelligent. Oh sure, we scored lower on the LSATs, that is probably a given—but I’m sure there’s some of us that didn’t score that low, and are receiving a full ride. I’m guessing the majority of my classmates, however, are in the same position as me, which provides reasonable tuition assistance, with the stipulation that you must finish in the top 40% of your class (roughly a B to B+ overall GPA) to reclaim it in subsequent years. When I put in my seat deposit and signed my promissory note, I thought I’d coast through law school, I thought I’d be a star, I thought I’d get straight A’s and get offered a big law firm job at OCI and pay off my debt in no time and pay $3000 a month in rent, or even buy my own place. A few months later, and reality has given me a swift kick in the rear again. I will say this about my classmates—sometimes, it can be awkward, if you know someone by face, and you maybe even know their name, but you have not introduced yourselves, for whatever awkward reasons you have. And it may be the case at every law school, but my classmates constitute the smartest, most hardworking group of people I have ever been surrounded by, and I thought I could throw down, I thought I could keep up with anyone, but they are a tough group to be scaled against on a curve.

But maybe we aren’t that intelligent, as the one comment that seems particularly more harsh than the others states. Maybe we have truly nebulous reasons for being here in the first place. People ask me what kind of law I want to practice, or what kind of lawyer I want to be, and I have no idea. I think I am going to start saying “any area that will hire me” or “the kind that has a job.” I thought that going to law school would open up more career options, but it has really just opened up one new area—and one that is extremely competitive. I did not fully realize the gravity of this situation until a couple months into the semester, when we started discussing internship applications.

I will apply for internships starting now. My grades will be out January 15th. There is still hope that I could ace all of my exams, have an awesome GPA, get an awesome internship, get on the awesome law journal, keep my awesome scholarship (maybe even get a better one), and live an awesome life in Brooklyn Heights. [Which reminds me that I never pointed out the positive qualities of BLS. I do think it is the best area to go to law school in New York City because of its proximity to the courts in Brooklyn. I do think that the receptions, events, and other school-sponsored activities it hosts are some of the best I have ever attended (but this also has a negative effect—I have personally spread myself thin between the activities, the clubs, the job search, reading assignments, outlining, and all of the other facets that make up a law student’s life). I do think Brooklyn Heights is a great area (though not as “exciting” or “fun” as the Village may be for NYU students).] But there is also the reality that this is a pipe dream, and a dream that will end when my exams are finished and I see my grades, which, if my first midterm is any indication, will prove horribly depressing and provide material for the most difficult period of my life yet. For now, I can grind, and I can hope that I can change my approach, and I can pray that a miracle will occur, and all of my classmates will suddenly become extremely stupid the morning of the exam, and we will all do very poorly, and it will be okay. But experience knows it is not so.

So I will press on, and I will not think about how tenuous this life may be for me, and I will focus, and maybe it will all work out yet. I don’t even want to express a doubt on the matter (!) because it seems like throwing in the towel, or setting yourself up for disappointment. Let me say this: as frustrating as the whole law school thing may be, if you can’t get into a top 14 (or even top 50) school with any kind of funding, it is no more frustrating than any other technical training for any other job. The main difference comes with the price tag, and it’s the element that can cause serious breakdowns. When cyber-bullies know what is at stake, they should think before they post something harmful or injurious. I am sure there have been suicides because someone has posted something mean about someone on Facebook, and maybe this will constitute a tort action. But when the postings are anonymous, other questions of privacy may be raised. I am going to end this long and rambling post by saying that I am very proud that Flying Houses has always had positive, happy comments. If this “special comment” receives any comments, I hope they will engender a real and beneficial discussion, and not a laundry-list of urban dictionary-isms meant to make others “in the know” laugh in appreciation.