On a ship, the officer of the deck looks out, and sees storms directly ahead. He makes no mention of it to the captain, or anyone else among the crew. The ship sails directly into the storm, and is tossed about, being badly damaged from high waves and fierce winds. Afterward, the captain confronts the officer about the storm. Did you not see the waves? he asks. Well, yes, captain, I did, the officer replies. Why did you not alert anyone? asks the captain. Well, replies the officer, I was waiting for someone to mention the turbulence, and if one of the passengers had complained, I would have told you.
Whitewater, Wisconsin has a public access cable station, and on that station one finds recordings of our common council meetings. A recent session included discussion of an ordinance to ban drink specials.
Last year, Whitewater’s police chief and city attorney met with certain tavern owners. Afterward, the city attorney drafted an ordinance against flat-fee drink specials.
That session is now online, and it’s a good thing, because one can see what passes for advice to our common council.
Here’s the video of that session:
Link: http://blip.tv/file/3232390.
Well into the session, members of Whitewater’s common council begin to consider the limitations of a proposed ban on drink specials. The text of the draft ordinance, that Whitewater’s city attorney, Wally McDonell prepared, has apparent holes. Some specials that taverns offer would not be covered.
Here’s the city attorney’s comment, beginning around 51:10:
I will say that I thought of issues like that when I drafted it, but, and was going to add language that said, or similar-type specials, but I think that the at this stage of the game all that was requested was the flat all-you can-drink specials and we’ll see how that works and if it’s clear that there is a attempt to go around the spirit of the ordinance, it may well come back for more specifics and an attempt to meet anything that might have a similar-type effect, similar-type effect as a flat fee, but at this stage of the game, this is what’s hear on the table, and what’s here for discussion.
If the council wants something that would attempt to catch other things that are very close to the a flat-fee special, then we could take it back to the drawing board and come up with something like that….
A non-lawyer points out gaps, the city attorney noticed as much himself, but didn’t bother to exercise even that level of non-lawyer’s level of judgment when drafting the ordinance. The theory, I suppose, is that one should only draft what one’s asked.
The confusion in this way of thinking is clear: when non-lawyers do the asking, and one adds no additional effort, the product isn’t an attorney’s thinking, it’s a non-laywer’s level of thinking.
Why bother to have an attorney at all? Even non-lawyers could have drafted as well. Actually, better, because a non-lawyer saw the deficiencies in the draft, too, and would likely have overcome some of those deficiencies just by thinking clearly.
It’s not to a lawyer’s credit to contend that he saw the problems in the draft, but did nothing about them.
It’s actually more embarrassing if that’s the case.
And yet, for Whitewater’s city government, it is the case.