Fraud In Perspectives Expertise Exploited

Bernie Madoff is providing us with gallows humor relief from the continuing saga of crooked franchise schemes and how easily the investing public is taken in by slick and fraudulent franchise salespeople and “advisors”. Even the most professional franchise advisors today sell an inventory of franchise opportunities than include FranWhacks. They do this knowingly and with indifference. We sell it – We don’t make it up –Others make it up – We just sell it. The only franchise advisor/consultant in whom I have any faith today – that he has a fundamentally honest and moral approach to how he does things – is Nick Bibby, my very old friend.

That said, I find that fraud is one of the more entertaining specialties. Some of the charlatans are colorful, imaginative and very bright. Bernie Madoff is of that ilk. Only punks steal from the poor. Artists rob the very rich. In the main, Madoff is accused of robbing the very well endowed. They are not all the High Sheriff of Nottingham, and Madoff is certainly not Robin Hood. But there is a certain schadenfreude in watching a really adept crook fleece the successful. That’s because so often the successful are complacent and even arrogant. Religious institutions accumulate great wealth, largely from people of modest means, using their god mongering scheme. They are all the same. Only their style is different. That Madoff fleeced some religious charities makes me smile more than just a bit. That Madoff fleeced “experts” – fund managers – gives me another smile. That he insinuated himself into the social circles of very exclusive groups of upper crust folks and did it to them makes me smile. Being a low class person meself who would never be allowed through the front door of such groups’ venues, I smile that Bernie got it and got into their knickers as well.

Bernie is noteworthy for the scale of his scheme. He is the Donald Trump of scammers. But other than scale, he is no different from the scammers of old. I have been at or near the center of many fraud situations, thankfully as the lawyer for one side or the other. I enjoyed every fraud case I worked on and I marveled at the cojones of the perps.

What most often facilitates fraud is the delusion amongst the defrauded that they really know what they are doing and are really good at whatever they pursue. In truth, the very successful are either very good at a very narrow range of things; succeed magnificently at those, and rather incompetent at everything else. The other constituency of well heeled gentry are on the whole rather dull and won’t be well heeled for long. They are the children of great achievers. The rule is that a hugely successful person will bear children who, within two generations, will have them back to zero. The old saying is “Shirtsleeves to shirtsleeves in three generation. Pretense to connoisseurship facilitates a lot of really colorful fraud.

Connoisseurship is the application of bias and prejudice to everything. It is particularly entertaining when practiced by art dealers. Art dealers practice/ply their trade/profession through the artifice of pretending to scholarship. No art gallery worth entering is without its copious library of art history tomes, auction catalogues and coffee table books about this or that period/school/genre of art. These are the props of this particularly humorous theatre. They studiously practice stilted speech, pseudo fastidious mannerisms and the tactic of suggesting to you, subtly or otherwise, that you, with your unbelievable limitations, may with perfect confidence rely upon their utterly objective expertise, scholarship and connoisseurship in the selection of that which should adorn your walls.  When they observe that you are attracted to some small and relatively inexpensive object/picture, they refer to it as a “souvenir”, something by which you will recall having made this visit/trip. Nothing in the lower third of the economics of their inventory is other than a “souvenir” unless you are already known to buy the more expensive things and they don’t wish to give offense to a known spender. Over time, you will come to know that “fine art” consists of what is contained in their inventory. Commercial art is what is not contained in their inventory. Fraudulent reproductions are contained in the inventories of all other dealers, whose integrity should never be taken for granted. Attribution by anyone else is quackery. They are known to gather at meetings of their ilk and have drunken contests to see who can best forge the names of Renoir, Picasso, Chagall, Miro, Dali. The appreciation of the chicanery of art dealers is almost the best theatre in the world. Some of the best books I have ever read are about art fraud and its practitioners, including those who can successfully prey upon museums and great international collectors. The most famous and respected dealers and critics of fine art have historically engaged in the most shameful and fraudulent practices. When asked to render an appraisal of a work of art, the first question is always, “Would you like an insurance appraisal or a tax appraisal?”

There is no level of prestige at which the members are other than thoroughgoing scoundrels. The incredulous are commended to Colin Simpson’s ARTFUL PARTNERS,  an excellent chronicle of the collusive shenanigans of the world’s most famous art connoisseur, Bernard Berenson and the world’s most prestigious art dealer of the early twentieth century, Joseph Duveen. Duveen, head of Duveen Brothers of London, Paris and New York, was the most successful art dealer of his time. Recognizing that the great art of the world was mainly in Europe, while the money was in America, he decided to bring balance to the scene. Without great punctiliousness about his wares or his methods, crushing any who got in his way, he bribed, swindled and smuggled his way to fame, fortune and conviction for massive fraud. He was, therefore, made a noble, Lord Duveen of Millbank. He and Berenson had as clients Rockefellers, Morgans, Huntingtons, Gardners, Mellon, Frick, Kress and Bache. The Duveen archives are in the Metropolitan Museum of Art, in New York.    

One does not rob the poor if one has any sense. The rich are not only fools about what they buy, looking mainly to the assumed prestige of their amassed collections, but usually reluctant to seek redress of grievances for fear that others will know that they were not knowledgeable collectors, but mere bumpkins to be fleeced by the professionals. Rare is the art fraud case. No one of them would wish to stand in the witness box and admit that he is easily taken. Their egos are the best protection for those who rob them.

Tino DeAngelis, who brought down brokerage houses and defrauded banks and commodity traders by pretending to corner the salad oil market in the 1960s by using forged American Express warehouse receipts as loan collateral (receipts representing more salad oil in storage in New Jersey than was being produced in the entire world), proved that it is much easier to steal hundreds of millions than to rob a liquor store or cheat a widow out of her insurance money. Connoisseurship comes in many guises. Only thugs rob the poor. Connoisseurs rob only the richest. The executives at Enron Corporation, though lionized in what passes for high society, robbed their employees of their life savings. They stole millions, but are just filthy, disgusting pigs – hardly connoisseurs. When one of them started hanging out at Muldoons about the time he started dumping his personal portfolio of Enron stock, we might have known to sell Enron short. An executive of one of the hottest publicly held companies doesn’t have time to hang out in Muldoons. Moreover, there would be no one else in Muldoons with whom he could have anything in common. One should never crudely accuse someone of being a successful crook. Better to praise him as a connoisseur. I once read that there is a dish in Texas called “Gentleman From Odessa Stew”, also known as “Son of a Bitch Stew”. It is said that the standards of behavior in Odessa were so bad that a son of a bitch from anywhere else would be a gentleman in Odessa. So, Gentleman From Odessa became a polite way of calling someone a son of a bitch. Connoisseur is very similar usage.

You cannot become a connoisseur by purchase. To be sure, you cannot become one without money. But this is America. We don’t want to do any work over time to achieve merit recognition. We want to buy it. If you have ever been in the home of someone who has not spent years pursuing a personal interest in something specialized, but the home is chock a block full of things specialized to an artistic or ethnic or national décor that one might expect of a world traveler or a lifelong devotee of, say, African art of the Ashanti tribe, and that shit is simply in every nook and cranny, you will know what I am talking about.  In fact, even without the pretense to scholarship about a particular subject, any home in which the owner has no taste and has hired an “interior decorator” might just as well have a sign on the front door proclaiming it a den of phony ostentation. You can see such places in Architectural Digest. The rooms have no space for anything. Every inch of floor and wall space has something in/on it. No place looks as if it were waiting for its owner to find something special to put there. That is the hallmark of the interior decorator, as they get paid a commission on everything they buy for the owner – a commission by the owner and a commission by the vendor. Ergo, the place is as stuffed with shit as it could possibly be. If the owners did find something they simply liked, there would be no place to put it.

Connoisseurship comes only through study. A connoisseur of anything artistic will have seen everything in the field many times; would have made the effort to study about it; would know artists by their brush strokes, their ranges of subjects; their perspectives; by the different periods in their artistic lives, during which their art had distinct styles (e.g., Picasso’s Blue Period). The same would be true of a connoisseur of music or of fine wine or of antique furniture of a particular place or style. It is the product of a love of learning about something in which there is genuine interest to the point of scholarship, over many years. There are no young connoisseurs. Having a degree in something does not make one a connoisseur. Connoisseurship is personal, not institutional. No university can confer a degree in connoisseurship.

I have believed that there is a parallel distinction between the real and the counterfeit in connection with religion and drugs. One does not come to an appreciation of God and Christ through the singing of songs and attendance at church services. The long process by which someone strives toward that appreciation through sincere personal desire and need for an understanding of what is means to be a human being and the origin of humanity provides direction. While on that road, there is much pain and there are grand moments of discovery, very much like a long walk through a desolate place, a process used in biblical literature to portray what it is like to bring one’s mind from doubt to understanding. Most who proclaim themselves religious leaders are not. They are simply poseurs. The religious interest of which I speak is a quiet interest, introspective, that takes place within you and is not outwardly demonstrative. Dragging a large wooden cross across town in your bare feet on Good Friday does not make you Christlike. In Matthew’s Gospel we are told that Jesus instructed us to avoid public prayer, to go pray in some small secret place and let your mind communicate your prayers. (Matthew 6: 6-8)

Whenever I encounter the disgusting foolishness of argumentation among creationists and evolutionists, or the ostentation of the televangelist or society preacher, I know that I am not in the presence of anyone who is seeking Christ. Those whom they fool may believe themselves to be headed in that direction, but I doubt they are. Whenever theater and ostentation is used in rounding people up for Jesus, I smell a rat. It takes only a modicum of insight to understand that evolution and creation are not in the least bit inconsistent. They are one and the same, for there was most certainly a first moment in either case followed by a constant process of development, adaptation, expansion. What are they fighting about? They will tell you that man was never a monkey. You are expected to believe, as does the European art depicting Christ and the holy family, that we were created Anglo Saxons or some other European human construct of the period in which the artist worked. We recite that we are dust and will return to dust, but are incapable of accepting that our creator did not originally make us in the exact state of advancement in which we presently find ourselves. How silly.   

In one’s quiet, personal quest for the cosmic Christ, it is possible to understand and achieve abstracted levels of comprehension, smaller or larger insights into dimensions of significance invisible without years of concentrated inquiry. Some are grand vista-like revelations and some are mere glimpses. But each experience of real mysticism is euphoric. Many who have been there have written of it. The dreamlike encounter with a true mystical experience is falsely perceived by the uninitiated as some form of escape from a sordid reality into some realm of painless, careless, anarchistic freedom, into a place with no rules. Nothing could be further from the truth. Unwilling or unable to do what is required over a long period to achieve a true mystical experience, many seek the sensation of mysticism through counterfeit. To me, that counterfeit mystical experience is the drug experience, a chemically induced escape from reality into some emotional location in which one is not required to be concerned with any necessity to comply with anything – anarchy. The desire to escape from pain can be understood. But pain is part of the human experience. You cannot be or become an insightful exemplar of that which was created by trying to become something else. Chemically induced flights from reality have nothing to do with mysticism. Drugs are not part of any real mystical experience.

Connoisseurship may be applied to everything we do. It certainly applies (or could apply) in the practice of any profession. In my own experience as a corporate trial lawyer I have seen it applied, and I have seen what most frequently happens when it is not applied. The positive result is most frequently the product of insight in addition to whatever has been learned through traditional institutional processes. And, like connoisseurship in any other context, it comes over time and through experience.

Connoisseurship applies in the acceptance of clients. Most lawyers think of getting clients. If you can carry it off, it is better to vet than to get. Vetting is the process by which you determine whether a client or a claim is real. Not every person or company with a problem is a real potential client. If you are greedy or desperate, you think of everyone as a possible client. The great luxury of any professional practice is to be able to avoid the greed and the desperation, to be so positioned that you have recognition and credibility (which is how real clients find you), and you select only those whom you can really help.

The litigators with the best won/lost records are better at picking their fights. Taking long shot chances at trial does not give you a great won/lost record. The really good trial lawyers are the ones who know what proofs are required to present the really good case, how to marshal those proofs, and how to present them. But you can’t marshal proofs that aren’t there. You can’t destroy an opponent with scintillating cross examination unless you have proof of facts that show the witness to have testified falsely, whether through commission or through omission. This discussion is taking place in the context of business litigation. Personal injury litigation is another game, and I have never played it. Most people who call a lawyer do not have a valid claim. They do not have a valid claim because they have only suffered injury and incurred damages, but the loss does not arise out of someone else’s wrongdoing. If you are injured by someone doing what he has a right to do, the fact that you lose business because of it does not give you a valid claim. Lawyers frequently don’t have the courage to tell a potential client that there is no valid claim. An angry rich person is their definition of a client. If he’s pissed off and has money to pay a lawyer, he has a claim. Wrong! There is an old lawyer joke about the best clients being angry rich people or scared rich people – but it’s a joke. It takes integrity to tell a person who wants to hire you that you cannot in good faith accept his money and fight his fight for the reason that he doesn’t have a fight – he merely has suffered the vicissitudes of the market place. A lawyer is not a magician. He cannot supply missing facts needed to make up the elements of a valid claim. He must deal with reality on the ground. Sympathetic juries will not, in a competently run courthouse, be permitted to award you someone else’s money just because yours is a very sad tale of woe. The opposite party must have owed you a duty not to do whatever it is that he has done that is the cause of the injury. Absent duty and breach of that duty, there is no claim, no matter the damages. The idea that lawyers can fix a judge, or that they may “own” a judge, is sometimes, but very rarely true. But angry “clients” can always find a lawyer to tell them they have a valid claim if they can pay a fee, no matter the realities. The lawyer with some integrity who tells them bad news is called a wimp and a coward, but the other lawyer isn’t going to get them a good result, and they will end up hating both. In almost every case, since justice is usually done, the result is the correct result, and the poor client is told stories about the jury being biased, the judge making bad rulings, the witnesses just not standing up to cross examination, or some other excuse for why justice was done. You hate to lose a client because you didn’t agree with his decision to sue. But if you are really good and have correctly analyzed the problem, you couldn’t have done anything for him anyway, and you must be content with having done the right thing. That is connoisseurship.

Similarly, in business litigation, a client with a valid claim, but who lacks the resources to pay for its prosecution, is also not a client. Business litigation on a contingent fee arrangement is very high risk poker and usually a loser for the lawyer and the client. That it sometimes is successful does not make it a smart thing to do. Today, business litigation entails being able to account for defenses and counterclaims that the other party will assert, and the presence of evidence to  deal with the counterclaims and defenses. When you are only hearing one side of a story, that is very hard to do. And clients will lie to you, especially if they think you will take their case on a contingent fee. With a contingent fee deal, the lawyer has to pay the damage and other expert witnesses. Expert witnesses have no credibility if they are not paid. Contingent fee expert witnesses are worthless, and in most instances won’t even be allowed to testify. Most lawyers are just too cheap to do that; they “wing it”, and the case is lost. And so, connoisseurship entails triage expertise. There must be a coalition of a valid claim and the resources committed to sustain its prosecution for a true client relationship to be present. The contingent fee has its place. It is in mass tort situations, airplane crashes, products liability, auto accidents or medical malpractice. It is not in your normal business dispute. Some otherwise pretty good law firms have learned that lesson the hard way recently in rather spectacular failures. Among the most painful are the big jury awards that are thrown out on appeal. Winning a big sum at trial is not the same as collecting the money. Today, tort reform attitudes are tearing the heart out of the spectacular award. In real terms, the client’s best result will get him made whole, including legal fees, will get him back to square one – nothing more. Connoisseurship inheres in knowing that and in informing the potential client of that.

Connoisseurship is not a credentialized exercise. If you merely parrot the opinions of others and fail to develop your own view, you are not a connoisseur. Taken as a whole, we are a society conditioned to accept the opinions of others, individuals and institutions, including the government, regarding the value, safety, grading of goods and services. The Food and Drug Administration tells us what we may purchase to eat by certifying what may or may not be contained in our food and the conditions of its manufacture. For the most part, but certainly not always, we may rely upon their standards on safety issues. FDA interests and jurisdiction does not concern itself with relative quality, except that false advertising may be punished under various regulatory schemes. However, false advertising is rarely prosecuted. Only recently has false advertising become a practically redressable wrongdoing through private legal action, and that is hardly worthwhile in real terms. Government regulators specialize in delegating their regulatory powers to those they are supposed to regulate. If you expect the regulated to regulate themselves effectively for the protection of the public, read no further, for you are insufficiently intelligent to appreciate anything in this article. Accordingly, dairy industry people populate the committees that set standards for dairy products. Meat industry people set meat standards and processing methods. And so on and so forth. How much water may be added to real milk and then sold as milk is set by the dairy industry through its surrogates on the appropriate dairy standards committee. Similarly, how much rat shit can be contained in bread flour is also part of the bread flour standard. Insect eggs do not have to be screened out if the product is air gun blasted against a barrier so that the impact breaks the eggs and they are, supposedly, unable to “hatch” in your toast.

Count (later Chancellor of Germany) Otto Von Bismarck once remarked, “If you like law and if you like sausages, do not go where either is made.” Exposure to how things are done in real life credentialing will disabuse anyone of accepting the certification of any institution at face value. Many get sick and many die consuming that which the government has certified to be safe.

We have been socialized to think of “fine art” as that in the collections of the great museums and of the immensely wealthy. If it is in either kind of collection, it must be truly fine, right? Sometimes right and many times wrong. Museum collections are chock a block with frauds, some the product of incompetent vetting by less than connoisseur curators, and some such talented forgeries that even the best curators could be fooled. And some frauds entered museum collections with the knowledge of the curator that they were fraudulent.

The super rich often pretend to great knowledge of fine art, but in reality rely upon credentialing by those who sell them the paintings or sculptures. They may have a superficial knowledge of what is on their walls, and are often (more often than you would ever believe) victims of opportunistic dealers. Part of the purpose of their collecting is decoration; part is to acquire a reputation as a world class collector; part is to have a world class collection to leave to some art museum for the perpetuation of their names and reputations; and part is nothing more than arrogance and ego aggrandizement. When these collections are tendered to museums, together with an endowment to construct a gallery for their display, plus carrying costs, to be named the so-and-so gallery, of course, the curator will never give offense by declining to accept the collection as a whole. The museum will take the good with the bad; will accept the inventory of frauds identified as originals; will properly receipt everything as world class so that the proper tax deductions may be taken; and will shut up about it. Many tax cases deal with the authenticity as fine art of donations to museums. Taking a deduction for an authentic masterpiece, when the work is a forgery, is a sport of the super rich. An enormous amount of the corpus juris of art fraud litigation consists of tax and customs duty cases. The beautiful sculpture “Bird In Flight” by Brancusi was assessed with customs duties because the customs agents would not accept anything abstract as duty free fine art. They insisted that it was a farm implement, subject to customs duties, and only the Supreme Court ultimately vetted it.  One of the most interesting dinner conversations is to pose the question, “What is art?” A visit to a modern art museum will expand your horizons immensely when you see a toilet seat suspended on a rope and entitled “Window To Infinity”.

Real connoisseurship in the collection of art for normal people is to acquire pictures, sculptures, objet d’art and fixtures that appeal to your sense of what you personally find attractive. It may only cost ten dollars. Cost is not a definer of art. Anyone visiting your home who remarks or thinks that what you have is pedestrian and low class is simply an officious fool, a label snob, a slave to whatever “experts” tell them. To be sure, there is a level of poor taste that invites ridicule. Illustratively, anyone who buys a painting by the pseudo luminist Kinkaid is just tastelessly stupid. Some things are simply too vapid to qualify as anything more interesting than the back of a cereal box. For far less money you could buy a picture from any drug freak on the sidewalk trying to earn enough money for his next snort, and it would, no matter the subject, be of at least equal dignity.

Wine is another field of interest in which credentials definitely mean more these days than intrinsic merit. Wine is an agricultural product that we drink – at least those of us who have good sense. Wine, and those who celebrate and produce it, have been honored even in the Bible. When the Lord decided that folks on earth were just too bad to keep around, and that she was gonna sweep everyone away in a flood and start over, it was not some priest that was saved with his family – it was Noah the vintner. Yes. That’s right. That little old winemaker, Noah. The lesson was not lost on latter day priesthoods, for throughout Europe wines and fine liquors have always been made by priests, no doubt in the forlorn hope that they might be the successors of Noah. Fat chance! Noah wasn’t known for buggering little boys. The methode champenoise was invented/discovered by a blind monk, Dom Perignon.

Wine was just wine (compared to the distinctions made today) until the discovery of the cork. Before the cork, wine spoilt and then had to be flavored with assorted noxious adulterants to cover up the taste produced by its prolong exposure to air. The cork allowed wine to become complex through aging, to develop subtleties of flavor and aroma, if indeed it had such potentialities. And so there came to be wine that you drank young and often, simple, delicious, and, like a good country girl, totally uncomplicated. Beyond that was wine that was blended in crafty ways and aged in cellars in barrels for three years and put away in corked bottles for its potentialities to develop over sometimes many, many more years. Wine that was put away and not sold produced no cash, so there had to be some economic incentive for doing that. Some wine became expensive. Once wine consumption reflected the gradations of class that one is accustomed to seeing in social structures, it attracted snobs – perfectly normal and to be expected. The ascription of noble stature to fine wines became a field of endeavor. People began to stop relying upon their personal wine consumption experience, and to rely upon the opinions and certifications of others as to what was and what was not “good” wine. These professional certifiers, like art dealers, had their own pecking order, and constantly vied for pre-eminent repute. They became Poncified, just like the little Ponce art dealers, and just as vicious and crooked. This perverse tendency was, of course, mirrored in the vintner population. If your wine was designated to be very worth a high price, it was a shame that you could only sell as much of it as you could grow grapes for – a terrible natural limitation of opportunity, not to be tolerated. And so, wine fraud became as much a phenomenon as art fraud. “Strange” grapes were brought in during night hours and blended into “good” grapes, and mediocre wine was sold as great wine, because, having no inclination to base their decisions on personal palatal recollection, people relied upon the opinions of the Ponce wine critics. Credentials came to mean more than quality and merit. Payola did not start with popular music records in America.

As credentials came to be the ultimate determinator of value – not taste – misattribution fraud became rampant. In France laws were passed regulating what could be called what, based upon where the fields were located, and also, ultimately regulating the number and spacing of vines per hectare.  But for such laws (and even in spite of them quite often) confusion would reign due to fraud. Similar laws were passed in Italy and elsewhere, with similar results. There can only be one Petrus. But there can be several Pomerols (an area designation) and Paullac, and Margaux. And there can be many more Medoc (a larger area) vintages. In Paullac, two vineyards lie just across a path from each other. The grapes of one become Lafitte Rothschild. The grapes of the other become Mouton Rothschild. Lafitte (until 1973) was a first growth wine, and Mouton was a second growth. No one could ever tell the difference, side by side in blind tastings. Certain snobs claimed they could tell the difference, but, even if they could (which I doubt), who cares. In 1973, this absurdity was erased when Mouton was designated a first growth. But nothing about Mouton changed one iota. Nothing at all! It was the same wine that had the previous year been a second growth classification. The label of the1973 vintage was done by the artist, Chagall, and on it are the words (Second je fut. Premier je suit. Mouton ne change). A wonderful story about the silliness of credentializing.  

Today, wine credentialing and snobbery is pandemic and absurd to the utmost possibility of being outrageous. Go spend a long fall weekend in Napa and Sonoma California and watch the people in their silly little costumes going from winery to winery, from “reserved for special guests” tasting room to “reserved for special guests” tasting room. They all have these little books of their “tasting notes” by which they trivialize the ineffable. It is almost impossible at such an event to remember that wine is a farm product that you drink. You get it by squeezing grapes, just as you get milk by squeezing a certain part of a cow.

And an industry has grown up to pander to their most absurdly snobbish inclinations. They buy the most ridiculous things that become props to this oenological macabre theater.

For about $ 60, you can purchase a wine essence tasting kit – yes – a wine essence tasting kit. This is to help you impress your friends with your “wine speak”. The kit contains samples of what are called the nine principal components of wine, each component separately contained in little bottles with suggested dilution instructions to dramatize their effect upon a glass of wine.  It comes with an instruction book that tells you how much water to put in, extra labels, and a “wine tasting glass”. Can you fucking believe this?

No Blackberry need go unprogrammed today regarding WineRate software – only $ 24.95. Seated at your restaurant table, confronted by the impatient sommelier, you just whip out your Palm Pilot and punch in names from his wine list, and VOILA.

No wine ponce would dream of uncorking a bottle with some Sam’s Club corkscrew for $ 4. For $ 49.95 you may have a collectible Languiole, French crafted, cork pulling device (identical in form and function to the Sam’s Club corkscrew) in Faux Wood or Imitation Pearlized finish, emblazoned with the Languiole Bee symbol of Languiole authenticity, with supple leather pouch so you can wear the thing just like you do your cell phone and Palm Pilot. And, if you are really a person of significance, and wish the world instantly to recognize you as such, you can have, for only $ 124.95 , a Chateau Languiole cork screw device exactly as carried/used by Master Sommelier Oliver Poussier, who was crowned in Vienna in the year of our Lord 2000 as the world’s best sommelier. I wouldn’t want anything touched by someone with a name like that anywhere around me.

If you are too clumsy up to pour wine from a bottle into a decanter without making a bloody mess, you can, for $ 29.95 acquire a Spiegelau crystal glass funnel. No self respecting wine ponce would ever consider using any other kind of funnel. This funnel is guaranteed to fit into the neck of your decanter. And for $ 74.95, you can have a funnel that provides primary aeration and promotes secondary aeration as part of the pouring process. It has a screen at the bottom that causes the wine to spray out of the bottom and “swirl”. No shit!

And don’t tell me that you dry your wine glasses with cloths that have not been segregated and embroidered with the name of the wine that goes into the glass that the towel is being used to dry out! You mean (perish the thought) you would actually dry a glass in which someone had enjoyed an Opus One with a towel that had previously been used to dry a glass that had held a chardonnay?  Why if word got around that you were a person of that ilk, you would be forever shunned.

Have you an album of labels from bottles of wine that you have consumed? No? Are you mad?

Do you go willy nilly traveling about without a wine drinking case over your shoulder, containing two bottles of wine and either four chardonnay stems or two Bordeaux stems? My God, man! What will you do if there is a terrorist attack? Do you realize how many people died in the World Trade Center attack without having a Wine and Stem Travel Pack? And there’s no fucking excuse, cause they’re only $ 139.95.

There may be some higher level of absurdity, and I am certain we shall see its advent. But, if you would like to know how to go about enjoying a great glass of wine and don’t require that your entire personal identity depend upon being a fucking ponce, treat yourself to a personal excursion through the grand wine mongers of the United States and England, looking for something under $ 30.00 a bottle that is simply delicious. When you become really good at this you will be looking at things around $ 10.00 a bottle. Forget about names. Forget about having expectations from drinking a glass of an agricultural product that you will experience some epiphany. Think not of cabernet or pinot noir or syrah. Think of it as a delicious glass of wine – nothing more complicated than that. There are hundreds of delicious bottles of wine from all over the world that, to someone who likes a taste experience without betting his identity on the first sip, provide delightful sipping or guzzling. You can be the world’s greatest lover after or with a great $ 10.00 bottle of wine if you are really the world’s greatest lover. If you are not the world’s greatest lover, no wine will get you there.

Principles of connoisseurship also apply to the vetting and prioritizing of principles themselves. Being principled, and taking positions based upon principles, or upon this or that particular principle, is more frequently the ploy of the unprincipled or the ignorant or the arrogant than it is meritorious. Scoundrels use the phrase “It’s the principle of the thing” more than honest people. Ignoramuses use it more than intelligent, insightful people. Pompous asses invent “principles” that serve their arrogance, or twist real principles through word games to try to make it appear that this or that worthy principle is a just and rational basis for them getting their way.

The truth of the matter is that it is almost never “The principle of the thing” that is at issue. Rather, in any conflict of ideas or positions, there are usually several principles, not one, that are competing for weight. They must be prioritized to arrive at their proper application and produce a logical, rational and mutually useful result. And often perfectly valid and important principles simply should not be applied if the exigent circumstances are such that a poor result will be produced.

In business disputes, the principle of people having a legal and ethical duty to honor their contracts often conflicts with the equally worthy principal of contracts not being induced by misrepresentation and of parties to contracts not doing things that impair the value of the consideration that they have covenanted to provide. The concern that “If I let him get away without having to perform, word will get around, and nobody will perform”, pervades many multi party business relationships, especially in franchising. Most franchisors lack the insight to appreciate that it is ok to forgive the right to receive some performance if they have somehow screwed up in a manner that would cause the expected performance to be withheld. Typically, on the issue of territorial encroachment, a franchisee with a really good trial lawyer can usually defeat a post termination covenant not to compete where the franchisor has allowed a competing store of the same franchise system to be established within a zone that is prohibited territory for the offended franchisee to compete in after termination. If it is not unfair competition for another store of the same system to be within three miles of you, it cannot be shown to be unfair for you, later on and as an independent, to remain or set up within three miles of that franchisor’s other franchisees.

Now, that is so obvious that you might expect instant recognition of the logic. But that is almost never the case. In case after case on similar facts, franchisors set themselves to take gas by seeking to enforce the no competition covenant after they have acted contrary to the very principle on which they adopted the covenant in the first place. It is the misapplication of “It’s the principle of the thing” that produces this most stupid of results. What about the principle that you ought to do your bit in a proper manner if you expect to be entitled to receive proper performance from other parties to any agreement? Doesn’t that principle count for anything?

And what about the principle that it is more important to inculcate a positive, ethical reputation amongst those with whom you do business than it is to have your own way, even if you are in the right – sometimes. Weighting of competing interests seems to be a step that so many people – and their lawyers – seem rarely to observe. And this must be done before positions are taken, threatened or announced if the most useful result is to be obtained. It is rarely the smart thing to publish statements of self aggrandizement before the evidence available has been marshaled and evaluated and competing interests and principles are weighted against each other. Once you say out loud what you insist upon, it is most difficult thereafter to announce that you were foolish. But try to convince a client to decline that press interview or to refuse the advice of a publicist that we must be seen to be strong, and to be strong, we must make battle boasts much as did the primitives of the Beowulf Saga. Premature self publicizing is one of the worst and most frequent mistakes in the management of dispute resolution. So very often the memo or other public statement shows up in discovery in which your client said something that agrees with the opponent’s position and makes the premature public statements seem deliberate falsifications by desperate people. Why on earth do that to yourself?

And what about the principle that you owe your colleagues a duty to optimize the quality of operation of the firm, much more than any imagined principle that produces a posture of subsequently humiliated self righteousness? Later, when you have been embarrassed by and with your own previously inconsistent statements, those colleagues will always remember that, at the moment connoisseurship was needed, you were too busy being an ass.

Lawyers attempt to thwart such nonsense at their peril. The posturing fool will promptly discharge the lawyer who tries to save him from his folly. Point out that the client is standing naked in broad daylight with an undersized weapon (to put it nicely), and you will be given an audience in which you can explain to your partners how and why you cost the firm the revenue that would have been generated in that particular case. The political forces of the organization of the firm militate strongly in favor of the “easy” way. It requires spine to insist upon what is really in the best interests of the client, even when the client is too puffed up to understand that aggrandizing his ego is not the most important object of the exercise.

The connoisseur will reject the swill and insist upon that which represents a quality performance. The coward will opt for the fee and lose the case. I have seen it dozens of times, and the coward prevails only when the opponent is represented by an idiot. Betting that your opponent will show up without competent representation is one way to lose most of your cases. The trial lawyer with the great won-lost track record and the Paladin reputation is the trial lawyer who knows how to pick his fights and how to manage them. If he lets the client’s emotions rule, he will not long enjoy that quality repute. Picking fights requires recognition of multiple, often conflicting principles, and their proper prioritizing. And, for the sport of it, guess what the client will tell everyone he knows if and when you lose.

The principles of connoisseurship apply to every decision one faces in every aspect of life. One cannot do everything, eat everything, drink everything, make love to everything or fight every fight. One must prioritize, choose, weigh, balance, and, in the end, reject the unworthy and concentrate only upon that which is closest to excellence. In many ways, I have not always been able to do that. I have not always had the insight that has come to me through age and experience. Now, however, I am a much happier person. 

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