May 10, 2008

Personal Satisfaction And The Gerund Man

I discussed the topic of contract conditions in an earlier blog posting. This got me thinking about conditions that require the personal satisfaction of one party to the contract. For example, the contract may provide that Harry Houdini only has to pay Magic Tricks, LLC for a new water escape chamber if Harry is satisfied with the chamber’s construction. If Harry does not like the completed chamber because it leaks water all over the stage, then Harry will be excused from his obligations under the contract.

Personal satisfaction conditions bedevil the law for a variety of reasons. Often the contracts are not written clearly enough to make the satisfaction condition truly personal. The law generally takes the view that an objective standard is to be used to determine whether the condition has been met or not. Like in Harry’s case, where a leaking water escape chamber is something no one really wants. If you are going to use one of these things, you pretty much want it to be watertight. The theatrical effect of the whole escape is lost when all the water drains out of it so that you can breathe normally while you wiggle out of the padlocks and chains.

But the situation would be different if Harry did not like the chamber because Magic Tricks, LLC used brass rivets instead of copper ones. The functionality of the chamber would not be diminished then. Its just that Harry has a weird thing for copper since he thinks copper better transmits the “good vibes” of the spirit world. Harry will have a hard time avoiding having to pay for the chamber with the brass rivets because objectively there is nothing wrong with the chamber. Harry needs to have his contract clearly written to say that his personal judgment is the one and only standard by which satisfaction can be measured.

Only when the contract is one that involves "personal or artistic" matters does the law assume the personal judgment of the party to the contract is the measuring stick for satisfaction. In this area, the law sensibly recognizes that there is no accounting for taste. So if you make a contract to commission a piece of artwork you can pretty well count on your personal satisfaction being the only measure of satisfaction.

Gormley.jpgA good example of this would be the sculpture the Anchorage Museum commissioned for its new expansion project. The Museum picked a UK artist, Antony Gormley, and paid him $350,000 to come up with a suitable work of art to sit on the lawn outside the new addition. The sculpture Mr. Gormley designed for Anchorage was a cubist, block-style rendition of a squatting man. It’s a design that I have taken to calling the “Gerund Man,” ever since the Dear and Esteemed Wife pointed out to me that it looks like the figure is in the process of evacuating his bowels.

The name “Gerund Man” seems to fit since the guy is demonstrating any number of gerunds. (If you recall junior high school English, gerunds are verbs that are transformed into nouns and take the ending “ing”.) You see, Mr. Gormley has designed for us a fellow taking a dump, pinching a loaf, dropping a deuce, firing off a missile, launching a p-u boat and spawning a brown trout.

The proposed sculpture caused a bit of a stink when it was announced. There was a high-toned debate between two University artist types in the Sunday paper one week, although neither one mentioned the excretory aspect of the proposed work. The objection of the guy writing against the artwork was that it did not seem very Alaska oriented. But that issue can be easily remedied. Just put a cubist rendering of an outhouse around the guy, or maybe round out the base he’s squatting on so that it artistically resembles a five gallon pail. There’s nothing more Alaskan than depositing a dookie in a honey bucket.

Still, one might hope that the Museum’s contract with Mr. Gormley has a personal satisfaction clause. As long as the Museum Board isn’t afraid to declare that the Emperor has no clothes, they should be able to invoke their own personal dissatisfaction to get their money back. There's no accounting for taste, I know, but I’m pretty sure that an artistic rendering of pumping out a pile on the Museum’s lawn is not acceptable, even under a purely objective standard.

Anchorage would not be the first community to reject one of Mr. Gormley’s sculptures. The hip and progressive city of Seattle found that Mr. Gormley tested even its limits. For Seattle, Mr. Gormley designed the sculpture of a 39-foot-high standing figure of a man that would have been placed along the waterfront, facing Elliott Bay. The sculpture would have been plumbed with a fountain that shot a stream of salt water from the figure’s loins into the bay every five minutes. (The UK reports on the design described the water as shooting out of the figure's "metal todger.") The city council decided not to proceed with the project because it felt that even Seattle was not yet ready for “Ejaculating Man.” Perhaps the termination of the project came through the failure to satisfy the condition imposed by a personal satisfaction clause in the contract.

May 1, 2008

Pat Gilmore Gets A Clue (And An Award)

One of Atkinson, Conway & Gagnon’s very own, Patrick B. Gilmore, received the 2008 Professionalism Award from the Alaska Bar Association. The award was announced at the May 1 Bench and Bar Luncheon, a part of the Bar’s Annual Convention.

The award was a surprise to Pat when he heard his name called. (Pat is better known as “Gil” amongst the cognoscenti of Alaska.) Gil had been lured to the luncheon by a longtime friend, knowing nothing about the award. He probably should have thought it strange that his wife, Chris, and 22 year old daughter, Casey, showed up at a Bar Association lunch. The fact that a couple of Pat’s clients were there as well could have been a tip off that something was in the works. But Gil was as low key as ever, oblivious to it all. (I guess no one ever said “professionalism” was necessarily synonymous with “swift on the uptake.”)

Gil.jpgThe Bar’s Professionalism Award is a true honor, serving as recognition from fellow lawyers of the respect with which the recipient is held. And really there could not be a better person for the award than Pat. He is a lawyer who quietly and efficiently goes about his client’s business. He is never flashy and never obstructive, but always effective. Unlike many lawyers who talk about the importance of pro bono work, but do not follow through and actually provide it, Pat has without fanfare given substantial time to handling cases for the domestic violence project. He is the embodiment of the highest ideals that every lawyer should strive to achieve. Pat is a throwback to a nobler age, a reminder that the law is a learned profession and not a mercenary pursuit.

So let us all raise a glass to Patrick Gilmore and congratulate him on a well-deserved award!

(Hey, I’m more than willing to make Pat the butt of jokes, but you have to hand it to a guy who gets the Professionalism Award. And besides, anyone who names his dog “Bluto” after the late, great Senator John Blutarsky is A-OK in my book.)