This is the question some have posed to me. I considered this possibility immediately after I heard of the e-mail about Jim Hood, which is discussed in this post from two days ago. I soon rejected this as a likely possibility for reasons I will state below, and I didn’t think it worth bringing up until I received several messages from regular readers whom I would place in the category of canaries in the rumor coal mine — they reliably hear of almost all the key rumors and are accurate reflections of the zeitgeist (I mean this in a complimentary way — if they were nutjobs I would pay no attention to what they say).
The indications are therefore that a considerable traffic exists in the belief that the e-mail was not an accident, but rather a sort of dead fish mailed to Hood ("if youse don’t shaddap, youse will sleep wit da fishes"). I think this is unlikely for the following reasons:
- Hood is slicing and dicing himself like he’s a new kitchen tool on a TV infomercial. He is sowing the seeds of his own discredit everywhere he goes, like a reverse Johnny Appleseed. I think we can take it as a given that Birnbaum has no particular regard for Hood, so why would she do anything intentionally that might interfere with or distract from Hood’s own self-demolition?
- Under certain settings on Microsoft Outlook, when folks forward you an e-mail, it arrives as an attachment. When you click on the attachment, you are actually in the original e-mail, and if you try to respond to the person(s) who sent it to you, you will respond to the original recipients of the e-mail instead. The more usual setting — one that embeds the original e-mail addresses harmlessly as dead text within another live e-mail — does not present this danger. So it is quite believable that she could have gotten the e-mail as an attachment, and accidentally responded to all in the way explained above. I myself received a copy of the Hood e-mail from a source — the thing spread with amazing speed — and fortunately it arrived like almost all my forwarded e-mails, as a harmless embed.
- If Birnbaum was going to send such a message to Hood, there are better and safer ways to do it without her name being attached. She could talk to someone who knows Hood, with the knowledge they would repeat it to Hood, for example. Better yet, she could have someone else talk to someone who knows Hood, with the knowledge they would repeat it to Hood.
- State Farm’s method of operation throughout Katrina litigation has not been to speak out publicly in advance of motion practice, but instead to file motions and let the conversation flow from them. Why change at this point, especially when, as mentioned above, Hood is on a search and destroy mission with himself as the target?
- Neither Birnbaum’s nor State Farm’s style during Katrina litigation has been to create public personalities or personas. While I thought this strategy was somewhat anemic early on and criticized it in posts, it has proven to have a certain effectiveness — a State Farm counteroffensive succeeded perhaps better than anyone in the company could have hoped. Whether it was due to brilliant strategy, to ineptness and overreaching of the opposition, to luck or to some combination of these is something that will have to be sorted out after it is all over.
- The fact that the e-mail message was not overly derogatory to Hood has also created suspicion that it was a plant. The Birnbaum message was "This is so over the top. Can we ask that he be held in contempt of court for misrepresenting a settlement agreement and order of the court." Now, what many folks love about e-mail is it brings a certain ability to inject some creativity into life, such many folks forget or disregard the possibility that these e-mails could surface at some point. And these folks may have been tempted, had they been in Birnbaum’s place, to unleash some language that might euphemistically be referred to as colorful. So the fact that these kind of words were not present makes some suspicious. However, you will notice that, if the e-mail is reproduced accurately in the AP story I read, there is no question mark at the end, as one who was carefully composing for the public eye would have done. Also, like many lawyers, Birnbaum may be the sort who is careful not to put unnecessarily harsh words into e-mails, knowing from experience in litigation these are always hard to explain if they should come up for any reason.
- The fact that it accomplishes a purpose that would seem desirable to State Farm — it gives State Farm’s position on the interpretation of the settlement agreement without having to worry about push-back for talking about a secret agreement as Hood is doing — has also fueled suspicions. But again, there was no need for Birnbaum or State Farm to do anything about this. Hood emerged from months of self-imposed silence to testify in such a way that he seemed determined to prove the truth of the maxim: "It is better to remain silent and be thought a fool than to speak and remove all doubt." His statements of victory in the State Farm lawsuit, in the wake of his disastrous performance at the hearing, were greeted with incredulity and jeers.
- The fact that it accomplishes what some think is another State Farm purpose — warning Hood and reiterating to him that he is now little people — has further created suspicions. Yet for the same reasons I discussed above, this seems unlikely. Really, what penalty would Hood pay? Is Judge Bramlette going to find him in criminal contempt of court and appoint special prosecutors, like Judge Acker did in Alabama when Dickie Scruggs refused to turn over documents as ordered but instead gave them to Hood (who had his own copies and so didn’t need Scruggs’ documents)? Very unlikely.
So that’s my take on it. You may agree, you may disagree. That’s why they make chocolate and vanilla.