Five for Friday #164

Welcome to #164!

Trigger warning: this post is long.  Before you hit “send” on the email to me complaining about how long, remember that nothing is stopping you from reading any further than here.

The Vermont City Marathon is Sunday.  I’m entered.  If I finish, it’ll be my 12th VCM and 21st overall.  To rest up, I’m about to turn this column over to a guest blogger.

Before I do . . .

. . . I haven’t always been a runner.

In 2006, a few of the friends I introduced to you in a blog about a long day in my basement asked me to run on their relay team in the marathon.  I agreed.  I had the good fortune of drawing the relay’s last leg: the adrenaline rush from running through a jam-packed Waterfront Park to the finish is addicting.  I’ve been hooked ever since.

Over the next two years, I built up to the full 26.2, completing my first full marathon in 2008.  The year in between? I ran on another relay team.  This time, with a team that included my good friend Jake Perkinson.

Jake is an attorney.  That’s not how I know him or why I like him.  Two of those same basement friends – Debbie & Little Sethie – used to have a post-marathon party every year.  In our younger days, we used the BBQ to pass the time between the marathon and nights at Esox that often devolved into disputes over whether dwindling dollars were better spent on another beer or another song from the bar’s fabled digital jukebox.  I met Jake at one of those post-marathon soirees.

Jake kept a diary of his training for our 2007 relay team. He sent it to us a few days after the race.  It is, beyond doubt both reasonable & unreasonable, my favorite work authored by a lawyer-runner.

With Jake’s consent – informed & confirmed in writing – I’m sharing it here today.  Jake’s self-effacing humor while recounting a foray into wellness is, itself, wellness.

Have a fantastic weekend!

Now, after too much ado, take it away Jake!



The True and Complete Diary of Pappy Perkinson’s Preparation for the 2007 Vermont City Marathon Relay Team


January 4, 2007:  Received an e-mail from Michael Moore (a/k/a Chooch) notifying friends of the impending registration deadline for the Vermont City Marathon, an event that has become a tradition among a certain circle of friends.  Feeling mildly (yet somehow pleasantly) disconnected from that circle, I reply immediately agreeing to participate.  Then, even more immediately, I put the matter out of mind for the next three months believing that the end of May will never come and, if it does, I will likely be dead anyway.  My confidence in this plan of action is so high that I dedicate no time at all to concocting the inevitably necessary excuses to use when I am forced to ultimately renege on this ill-conceived and precipitous commitment.

March 31, 2007:  A message from Chooch is left on the home answering machine requesting information to permit registration.  I studiously ignore this communication.

April 3, 2007:  While drinking a long-neck MGD and using the bottle cap to scrape the last bits of ice cream from a discarded (I believe prematurely) carton, I am informed by my wife, Cate, that I am not to make a joke out of running in the marathon.  I force myself to respond with a look of surprise mingled with hurt which causes me to choke on the bottle cap.  After performing the Heimlich maneuver on myself (Cate refusing all assistance), I tell Cate not to worry which she rightfully interprets as proof that I have no intention of making any serious effort.  Of course, she is right.

April 5, 2007:  I receive a call from Chooch regarding the particulars of registration.  After providing him with the description of a distant cousin for identification purposes, I inquire who will be on our team.  Chooch lists the runners which confirms that I am, indeed, the weakest link.  I know that even the exceedingly low expectations held for me will be impossible to meet and that no matter how low the bar is set it is a standard which I cannot achieve and which I am unwilling to attempt.  This preys on me for small parts of several days.


 April 9, 2007: 8:00 p.m.  My fear of dying on the course has gotten the better of my pride in slothfulness and I decide to go to bed at 8:30 so that I am able to get up refreshed at 5:00 a.m. to run before the children wake up and the household descends into mayhem.  To that end I carefully select my running gear and place it in an orderly pile at the top of the stairs so I can alight in the morning without disturbing my beautiful wife and children.

April 9, 2007 11:30 p.m.  I am awoken by the cries of an infant.  I pretend to still be asleep until Cate can no longer bear the noise and gets up to comfort the child at which point I act as though her movements have awakened me and roll fitfully over into the warmed-up spot on her side of the bed.

April 9, 2007 11:45 p.m.  I decide that if I am not asleep now, I will be too tired at 5:00 a.m. to do anything and turn off the alarm clock.  I fall asleep immediately.

April 11, 2007: 5:15 a.m.  I am awoken by the sounds of a high-pitched train whistle as interpreted by the deceptively powerful lungs of a three-year-old named Cyrus.  I know this means he will soon trundle his footy pajamas down to our bedroom, intentionally waking the infant on his way either by hooting loudly into her room or vigorously shaking the crib if evidence of her wakefulness is not immediately apparent.  When I hear his door open at 5:30 I leap out of bed and tell Cate that I am going for a run.

I quickly dress, feeling self-satisfied (whether about actually getting out to run or avoiding the task of dealing with two crying children at dawn I will leave to the reader’s own informed speculation).  As I step outside bracing for a cold blast of late winter wind, I am pleasantly surprised by the stillness of the air and a light humidity taking the edge off 20 degrees Fahrenheit.  Without stretching (not because I am foolish or lazy, but simply because I cannot) I begin my run.

Stepping out into the street I decide to meet this challenge head on and, rejecting the easy way, direct my feet UP hill.  As I begin, I feel I am magnificent, I am indomitable, I am supreme!  I glory in the early morning air and the feeling of the ground moving freely away beneath my feet.  A crescent moon is brightly lit in the pale gray southeastern sky, shouldering silent service as a witness to the graceful beauty of my ambulation.

And then it begins.  Twenty yards away from my house my throat dries out and after several more strides it begins to seethe as though something is trying to saw its way out of my neck using a cheese grater lubricated with battery acid.  Every breath is like swallowing a box of needles and every step is torture.  The pain induces a combination of nausea and dizziness that I have not experienced for over fifteen years absent alcoholic supplements.  In an attempt to psychologically urge myself onward I think back to my days as a youth when I reveled in the exhilaration of pushing my body to the breaking point and beyond.  And I thought to myself how stupid I was back then.

Despite the pain, I power through and, in a twist of unfathomable divine design, while my throat is a desert, my nose begins to fill with mucus.  I grimace and try to swallow to relieve the parched expanse of my throat but only choke on a bilious mixture of snot and thick saliva.  Now I am tired.  And uncomfortable.  But not defeated.  I give a stallion’s snort and hock a huge lugee with as much force as I can muster.  Unfortunately, given my physical condition, the missile barely clears my lips and plummets down the front of my sweatshirt, leaving a gray-green paisley stain.

After 200 yards I reach the top of the hill, expecting relief, only to look out from its summit at what always seemed to be a gently rising straightaway, now looming forbiddingly as a hideous and gross trick of nature.  “A hill on top of a hill!  This is bullshit,” I think to myself.  But I persevere and eventually reach the crest of this cunning confirmation of nature’s devilish duplicity.

As I approach the intersection capping this second rise I realize I have a choice to make.  I can turn now or push on for another 200 yards.  I make my decision quickly, resolving that if I go too far today, I might eliminate a goal that could otherwise motivate me tomorrow.  With a dramatic show of feigned regret, I turn my feet to the downward slope towards home.

Now my breathing is coming easier, and I concentrate on my form, keeping a four-count beat and raising my arms high.  I increase my speed and feel the wind blowing through my billowy locks.  Then, from behind, I hear the squeaking noise of rubber on asphalt and I am overtaken by a woman with graying hair outfitted in spandex pants and a knitted sweater who does not raise her hands above her hips when she runs.  As she trots past me I am given over to a surreal feeling of swimming through concrete.  I contemplate an attempt at increasing my speed, at least to keep her in sight for a minute or two, but then decide the wiser and more dignified course is to pretend I am engaged in a cool down exercise.  I consciously reduce my speed and pretend to stretch my upper body causing me to stumble and almost fall.  Realizing that any fall will crush me both mentally and physically and lead to an emotional death spiral I know I do not have the strength to recover from, I dispense with the cool-down ruse and return my full attention to running.  As I approach my house, my septuagenarian companion on this early morning run turns to climb the hill I started out on and breaks into a sprint, disappearing over the top before I reach the corner.

As I climb the steps to my house, I bend down with a monumental effort to pick up the morning paper and walk into a mudroom that on any other day sends shivers through my body with its ice-box coolness but which today feels like walking into a sauna.  I strip off my clothes, tearing at them like a madman and run a cold shower, nearly collapsing with a coughing fit before I am able to wedge myself into the stall for support.

I spend the rest of the day sweating, coughing and feeling a foreboding soreness in my lungs.  This is going to be great.  I can’t wait for tomorrow.

April 12, 2007:  1:30 a.m.  I am lying in bed, awoken once again by my own little piece of heaven fallen to earth.  As I attempt to turn over to pull the pillow over my head and drown out her nocturnal siren song I am suddenly seized with simultaneous shooting pains in my forearms, thighs, back and chest.  This fills me with a mix of emotion:  pain (obviously), but also, and to a much greater degree, relief, because here is my excuse not to go running in the morning.  My guilt wrestles momentarily with the more aggressive of my venal spirits and quickly gives up as Cate comforts the baby and I am able to fall gently back to sleep, safe in the knowledge that rest and recuperation is an important part of any training program.  I send thanks to Heaven for allowing me to formulate this rationale without the slightest strain at a moment’s notice and I am at peace with the World.

April 12, 2007:   6:30 a.m. (just after I should be finishing up my morning run) it begins to snow and the knowledge that I may likely lose another opportunity to run tomorrow briefly provides a toehold for my guilty conscience.  But, like a fantasy Battle of the Bands between Kiss and New Kids on the Block my darker angels push guilt off its precarious ledge and continue to pummel it on its woeful descent, making sure it does not ever think about getting up again.

May 2, 2007: 5:15 a.m.  The baby is visiting the bed so I am awake.  I feel strangely invigorated and lean over to whisper to my wife: “I’m going to go running.”  She responds: “I thought you were going to say you were going to get a beer.”  The baby smiles, drools and then starts crying so I shuffle down the stairs and launch another assault against Ledge Road.

This time I wisely cut off the ascent of the Ledge by detouring down Iranistan Road, still uphill, but a much gentler rise.  My lungs begin to seize and my throat provides a reprise of its past agitations by simultaneously constricting and drying out.  But not as bad as last time.  I make it about 2 miles on fairly flat streets.  When I get to the bottom of my street I break into a sprint and use my last remaining strength to reach my driveway.  As I attempt this last parry, the paper boy gives me a dirty look for holding him up.

The sprint nearly kills me and it takes a while to catch my breath.  Inside again I begin to feel ill and now have a pounding headache.  I hate Chooch.

May 22, 2007:  I realize that I am beginning to panic because I have not determined whether a five-kilometer run will kill me or not.  I start off again, gasping for air as usual, but find that after two miles I am still alive.  This is proof enough and I walk the rest of the way home.


Team I Hate Running did not finish last.  I believe I averaged 11 minutes per mile – not bad for three days of training over five months (especially considering how much I drank the day before).  Four days after the race my legs still hurt.  I can’t wait until next year.


Onto the quiz!


  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

You’re at a CLE.  You are re-reading Jake’s marathon diary because it’s so awesome. Still, your brain is vaguely aware of me saying things like:

  • it must be not be unreasonable;
  • it must be reduced to a writing that is signed by the client;
  • it must state whether expenses will be deducted before or after it’s calculated; and,
  • it must be based on the outcome of the matter.  If it’s based on an offer that the client rejects, at least one state’s Supreme Court has held that it’s unethical.

What was I discussing?

Question 2

By rule, a “prospective client” is one who, in good faith, discussed with a lawyer the possibility of retaining the lawyer.  Which is most accurate?

Per the rule, the lawyer shall not represent a client:

  • A.   with interests materially adverse to the prospective client.
  • B.   with interests materially adverse to the prospective client in the same or a substantially related matter.
  • C.  with interests materially adverse to the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client.
  • D.  None of the above.  We’ve yet to adopt any version of the ABA Model Rule on prospective clients.

Question 3

By rule, a lawyer may not settle a claim or potential claim for malpractice with an unrepresented client or former client.

  • A.  True.
  • B.  True, unless the client gives informed consent.
  • C.  True, unless the client gives informed consent, confirmed in writing.
  • D.  True, unless the client or former client is advised in writing of the desirability of seeking and is given a reasonably opportunity to seek the advice of independent legal counsel in connection with the matter.

Question 4

Having made this confession, it pains Me to say that I’m not a big fan of Taylor Swift’s new single.  Still, in her honor, one of these things is not like the other.   Which one?

The rule that requires a lawyer to:

  • A.  keep copies of advertisements for 2 years
  • B.  keep confidential information relating to the representation of client
  • C.  keep trust account records for 6 years
  • D.  keep the lawyer’s own funds separate from client funds

Question 5

He’s back!

There’s a lawyer who used to represent a woman whose real name is Stephanie Clifford.  This week, federal prosecutors alleged that the lawyer sent a “fraudulent and unauthorized letter” to Clifford’s literary agent in order to divert approximately $300,000 intended for Ms. Clifford.  Per Manhattan U.S. Attorney Geoffrey Berman:

  • “Far from zealously representing his client, [the lawyer] as alleged, instead engaged in outright deception and theft, victimizing rather than advocating for his client.”

You likely know the client by a name other than Stephanie Clifford.

Name the lawyer.

Bonus: tell me the client’s more well-known name.

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