It’s Wednesday, so you know what that means!
I like to use the Wellness Wednesday posts to introduce you to members of the legal profession who make sure to make time for non-legal, non-lawyerly things. As the VBA’s Jennifer Emens-Butler says, “pursuits of happiness.” Links to my prior posts on lawyers and their non-lawyerly interests appear at the end of today’s blog.
Today, I’d like to introduce you to Andrew Manitsky.
Andrew is an attorney at Lynn, Lynn, Blackman and Manitsky. He sits on one of the PRB’s hearing panels (our version of a trial court) and is a member of the VBA Board of Managers. Andrew chairs the VBA’s Intellectual Property section.
None of that is wellness. At least, not mind kind of wellness. This is: Andrew is in a band!
Andrew was kind enough to agree to answer questions directly related to his band & attorney wellness, and loosely related to professional responsibility.
MK: Thank you for doing this! So, keeping in mind that Rule 7.1 prohibits lawyers from making false or misleading communications about their services, and there’s Vermont case law that holds that the rule prohibits advertisements that make qualitative comparisons to other lawyers, tell us about your band and how awesome it is.
AM: Thanks for asking me! (I think.) Well, I’m quite mindful of Rule 7.1, as well as comment 2, which prohibits “paltering” – statements that are true, but misleading. But more to the point: my current band is McKenna Lee & The Microfixers. Our set list is based on the Eva Cassidy songbook, but we also play a variety of classic soul and dance tunes.
MK: Trust me, we will cover paltering later! For now, let’s lay a foundation: which Microfixer are you and who are your band mates? Other lawyers?
AM: I’m the keyboardist, and the music director. The band is mostly folks who work at UVM Medical Center and are actively involved in the “Patient Safety Movement” to eliminate preventable medical errors. In the United States alone, more than 200,000 people die in hospitals every year from things like not washing hands, bad hand-offs between doctors on shift changes, wrong medications, wrong dosage, infections, and the like. These are mistakes that can be avoided, so the movement works on sharing data and establishing best practices. Last month, the band played the annual world summit in Huntington Beach, California, and it was a great event. Bill Clinton was the keynote speaker.
MK: Bill Clinton! In some states, the advertising rules prohibit lawyers from paying famous people to endorse them. I saw you play once at The Lincoln Inn. Who is the most famous person you’ve ever spotted on the dance floor? Did President Clinton dance at your gig in Huntington Beach?
AM: No, I’m sorry to report that President Clinton didn’t dance. Or sit in on sax, either, which would have been awesome.
MK: I guess that means that I remain the most famous to grace a McKenna Lee & The Microfixers dance floor! From what I’ve read, the band is sort of the “house band” for the Patient Safety Movement. How’d that come about?
AM: I was playing in a band with Charlie Miceli, who is a VP at UVMMC. He formed Microfixers. Then they brought me in just to music direct (they had a keyboardist). Then I joined them (we had two keyboardists at one point), and then the other keyboardist quit. But right: we are kind of the house band. Last year, a stripped down version went to London for the summit. I didn’t go, but still ran the practices.
MK: By the way, what’s a “microfixer?”
AM: The idea behind the name “microfixers” is that very small fixes can make a big difference. In fact, the band has an original song called “Little Things” which is about that concept, and it was inspired by the tragic story of Emily Jerry. Emily was diagnosed with a tumor. After multiple surgeries and treatment, an MRI showed that the tumor was gone. She was undergoing a last round of chemotherapy, just to ensure that the cancer was truly gone, when the pharmacy technician decided not to use a standard prepared bag of sodium chloride (with less than 1% solution) but instead compounded a bag herself with a concentrate of 23.4%. Emily died. She was two years old. Her father, Chris, is a leading patient safety advocate pushing for changes in the way IV drugs are compounded.
MK: Such a sad story, but what a great concept. I’m a big believer that the legal profession could accomplish a lot by doing “Little Things,” like saving one starfish at a time. Anyhow, I digress. As you know, conflicts of interest are huge in my world. As music director, do you run into conflicts with your band mates when, as keyboardist, there’s a particular song that you like to play, but maybe the rest of the band isn’t so high on? Or, I noticed you answered “music director,” not “manager.” Are there conflicts between music & management in a band?
AM: Good questions. As for song choice, it routinely happens that a suggestion of mine isn’t embraced. That’s ok. If I can’t convince them that the song is a good choice, then that’s my fault. And no, I’m not band manager. My role is to help with arrangements and make sure it’s all working. Frankly, the musicians are so good that I don’t need to do much at all. But I like to be value-added, so each time we play through a song I listen for one or two minor adjustments that could be made to improve the overall mix. Maybe it’s having a part drop out for a few bars to allow another part to shine, or maybe it’s tinkering with the effects on a guitar.
MK: I’m intrigued by your point that it’s your fault if you can’t convince the band that a song is a good choice. That’s a lot like legal advocacy. I can recall struggling with how to shape my presentation prior to hearings or Supreme Court arguments. On the one hand, I want to capture the judge’s attention early, but on the other I know that I have to provide a reason to believe in my position. Is songwriting similar? I mean, simply, sometimes I stop listening to a new song after 10 seconds if I’m not into it.
AM: Absolutely. Studies show that people decide whether they like a song in the first 5 or 6 seconds. And I think oral arguments and briefs and other presentations are exactly the same. You need to tell the judge why she is reading this, why she should care about it. If you can’t do that in one or two sentences, you haven’t figured out your case yet.
MK: The Hook by Blues Traveler! Set the hook early and, like Popper sang, it’s what brings ‘em back! Another reason to make your point quickly with judges & juries, there aren’t “encores” in the law. Once you rest, you rest. What’s the band’s go-to encore?
AM: It changes and depends on the crowd. We have done everything from “Yeah!” by Usher to, yes, “Don’t Stop Believin.”
MK: A few weeks ago Jeff Messina joked that audiences always request “Free Bird!!” Knowing that you can’t ever guarantee results for a new client, what song can you (almost) guarantee someone in the audience will request?
AM: I really enjoyed your interview with Jeff. And I will note that he and I shared that drummer! He happened to be a great cook who made wonderful curry. Good drummer, great curry. Anyway, the requests depend on the venue, but he’s absolutely right: “Free Bird” is a sure thing. With my old band, I would sometimes introduce a song by saying: “This one is by special request.” But the song request was from me. I just felt like playing whatever song that was. I guess that’s paltering.
MK: Turn it up to 11. Plus, I KNEW we’d find a way to work “paltering” in! Great job! By the way, I’m trying to teach myself how to play piano. I’m barely a beginner and don’t really have the patience for the basics. So, instead, I focus on riffs from famous songs. Right now I’m trying to master the intro to Don’t Stop Believin’. It’s a lot harder than it sounds!
AM: It is! And part of the problem is the “official” sheet music. It’s wrong.
MK: Damn them. Not cooperating with bar counsel is an ethics violation in and of itself. Ok, so, I often talk about tech competence. Some lawyers seem reluctant to adopt new technology. I often hear grumbles that “this way has worked for ever, why change?” Conversely, I doubt that you lug a string piano to your gigs. And, I’m guessing Mozart would be fascinated by a modern keyboard and its electronic & digital bells & whistles. Thoughts?
AM: I love new technology, and how it enables us to better serve our clients. As you have frequently pointed out, if you aren’t taking advantage of it, you run the risk of violating Rule 1.1 (Competence). As for music, back in the 1980s I used to lug (with help from a band mate) a Rhodes Stage 73 electric piano to gigs. It was 100 pounds. But now, I use a Korg X-50, which is 9.5 pounds. And I can get virtually any sound out of it, including a Rhodes sound!
MK: Now that’s tech competence! I confess, until you mentioned her, I’d never heard of Eva Cassidy. Now, I’ve learned that one of her more famous songs is her cover of “Over the Rainbow.” Your practice includes intellectual property. You’re the Chair of the VBA’s Intellectual Property Section. You’re in a band that covers other artists. Is a song intellectual property?
AM: Yes, songs are protected under the Copyright Act. Copyright is a bundle of rights, and one of the rights is public performance. When a band performs another artist’s song at a gig, the band is technically infringing the copyright — unless the band has a license. Now, bar bands obviously don’t go around negotiating licenses, and the performance rights organizations (like ASCAP) that administer copyrights for artists don’t expect them to. Instead, the organizations enter into licenses with the establishments, so that bands can play the covers. Not so long ago, there was a bar in the Burlington area that only hired bands that played original music. Why? So they wouldn’t need to pay for the license for cover songs!
MK: Very interesting. Have you ever cited the U.S. District Court opinion on the request for a preliminary injunction in Metallica v. Napster?
AM: Not specifically. When advising clients, though, I point out that in peer-to-peer network cases, infringers have been found liable for substantial sums of money even when they aren’t charging for the songs (or movies or whatever). Often, folks think that giving the work away for free means as a matter of law that there are no damages, or that it’s “fair use.” Wrong.
MK: That case always makes me think of the movie The Italian Job. But that’s a story for another blog. Ok, a few final questions: As a lawyer, I think it’s important to mentor and to have a mentor. A good mentorship can make both the mentor & mentee more competent. I’m sure you’ve had some great legal mentors. Who is a musician who has inspired you?
AM: Paul Simon is one. And he’s inspired me not just musically, but in legal writing, too. He begins the second verse of “Something So Right” with the line: “They got a wall in China, it’s a thousand miles long.” I remember he once explained that part of the power of that line was credibility. By saying something so obviously true, it helped lend credibility to the rest of what he’s saying. That’s useful to keep in mind in legal writing, because credibility is everything. And on a related note, in my view, all songs are really just arguments. The most persuasive songs climb to the top of the charts.
MK: Nice! Too bad Kodak never hired you in an IP case. You could’ve used the lyrics to “Kodachrome” in your brief. How important is it to you to have the band as an outlet or alternative to the law?
AM: I’ve been playing in local bands for the past 10 years actually, and it’s been great – except when I’m breaking down equipment and loading into the car on Saturday night at 2 a.m. That part isn’t so fun. But I love performing, and also writing and recording. Doing music has certainly been a good “outlet,” and a break from the grind of the law. I think everyone needs to find at least one thing like that. At the same time, though, music isn’t so different from what I love about my law practice. The focus, the analysis, the problem-solving, the crafting of the work product. When you’re writing a brief, there needs to be a rhythm to it. For example, if you have an unusually long sentence (which sometimes can’t be avoided), the next sentence needs to be super crisp. You need to make it interesting. You have to be sensitive to the reader and keep them engaged as best you can. Same with a gig. Of course, people rarely dance when I file a brief.
MK: People should dance more often no matter the occasion! One last question: you’re both a food connoisseur and a member of one of the PRB’s hearing panels. Imagine: at a restaurant, you order Wagyu steak. The chef talks you into ordering it “medium rare.” I’m not sure what the disciplinary terms are in the culinary world. Whatever they are, should the chef be sanctioned, perhaps disbarred, for suggesting that Wagyu should be served anything but rare?
AM: Ha! Maybe not disbarred, but at least a public reprimand. I was happy I sent that steak back.
Thank you Andrew!
So far, the non-lawyerly pursuits that Wellness Wednesday has featured include:
Also, before I ever imagined this column, Elizabeth Kruska & Wesley Lawrence were kind enough to take the time to discuss their interest in horse racing, Scott Mapes talked soccer with me, and many lawyers & judges shared their marathon stories.