The Loose Noose of Binding Arbitration

When there is a binding arbitration agreement and the arbitrator has clearly made an erroneous decision, will the courts set it aside? Moore v. First Bank of San Luis Obispo (1998) examines this question.

The appellants (the persons who apply to a higher court for a reversal of the decision of a lower court) were shareholders in a privately held real estate development corporation. The corporation purchased real property in San Luis Obispo County on which it intended to develop condominium complexes. To this end, the real estate development corporation made a series of construction loans totaling $1,645,435.76 to the corporation secured by seven deeds of trust on the properties. 

After construction commenced, the shareholders discovered that the property was environmentally contaminated which increased development costs. In order to obtain further financing, the shareholders executed home equity lines of credit secured by deeds of trust to their personal residences in favor of the corporation. The purpose of this transaction was to create "equity" in the development project by shifting some of the corporate debt on the parcels to the individual residences of the shareholders. The shareholders alleged that, in return, the corporation promised to reconvey as many deeds of trust on the property as the new equity lines were able to pay for so that financing from a construction lender could be obtained. 

In early 1993, after payments were not made on the debt, the corporation initiated non-judicial foreclosure proceedings pursuant to the seventh deed of trust securing a construction loan in the amount of $160,000. In March of 1993, the corporation took title to the real property after making a full credit bid at the foreclosure sale. The corporation also filed notices of default against the shareholders' personal residences under the "equity line" deeds of trust and commenced non-judicial foreclosure proceedings on their homes. 

In response, the shareholders filed the instant action for damages, declaratory relief, and injunctive relief. The shareholders sought to prevent the foreclosures as violative of the anti-deficiency statutes, and to cancel their debt instruments and deeds of trust to their residences on grounds of mistake, fraud, and failure of consideration. What is the anti-deficiency statute? The anti-deficiency statute is legislation enacted by the United States Congress to prevent the incurring of obligations or the making of expenditures (outlays) in excess of amounts available in appropriations or funds. Their complaint also sought monetary damages for fraud and unfair business practices. Finally, they sought attorney's fees pursuant to a provision in the deeds of trust.

The corporation filed a cross-complaint, seeking judicial foreclosure of the subject deeds of trust, a deficiency judgment for the amount owed after deducting the proceeds of the sales of the homes, and attorney's fees.

The trial court subsequently ordered the action to binding arbitration before the American Arbitration Association pursuant to a provision in the equity line agreements. In July of 1997, the panel of arbitrators issued their award in favor of the appellants (the shareholders). The arbitrators ordered the corporation to (1) cancel all obligations under the home equity lines, the deeds of trust, and the blanket liens that were the subject of the action; (2) reconvey all deeds of trust; and (3) release all obligations under any promissory notes or other documents. The arbitrators found, however, that the corporation owed no monetary sum to the appellants, and they ruled that each party shall pay its own attorney fees. 

The corporation subsequently filed a motion in the trial court to confirm the arbitration award. The shareholders opposed the motion and moved to correct the arbitration award to provide that they were entitled to recover their attorney's fees and costs from the corporation. The shareholders argued that the arbitration award gave no effect to the mandatory provision for attorney's fees in the deeds of trust, that they had prevailed on their contract claims, and that the arbitrators exceeded their powers by failing to award appellants attorney's fees and costs. 

The corporation opposed the appellants' motion, contending that the arbitrators clearly determined that neither side was a prevailing party. The corporation contended that the arbitrators had the power to decline to find a prevailing party and fashion a relief they considered just and fair under the circumstances. The corporation argued the award was a 'mixed result' for the parties because both sides won and lost -- the corporation was denied foreclosure rights and the shareholders were denied monetary damages against it. 

The trial court denied the appellants' motion to correct the award, reasoning that the arbitrators were expressly asked to declare the appellants (the shareholders) the prevailing party and to award them attorney's fees, but it instead ordered the parties to bear their own fees and costs. Accordingly the court granted the corporation's motion to confirm the award and entered judgment consistent with the award. 

What was the legal error? When an arbitration panel issues an award which makes one side the prevailing party and then refuses to award attorney's fees under mandatory provisions of the parties' agreement, the award contains a legal error which is not subject to judicial review. Civil Code section 1717 provides that fees shall be awarded to the prevailing party on a contract where the contract provides for attorney's fees. The appellants were, as a matter of law, the prevailing parties in this action and were entitled to an award of fees and costs. The arbitration award shows a clear error of law on this point.

Any defect in an arbitrator's award resulting from an error of fact or law, no matter how flagrant, is neither reviewable nor correctable, unless:

• the arbitrator exceeded their authorized powers;
• the arbitrator acted with fraud or corruption;
• the arbitrator failed to disclose grounds for their disqualification of a dispute;
• the award was procured by corruption, fraud or other misconduct; or
• the refusal of the arbitrators to postpone the hearing substantially prejudiced the rights of the party

An arbitrator, unlike a judge in a court of law, is not bound by the rules of law controlling conduct when arbitrating a dispute. Even when the arbitrator agrees to follow applicable California law, their erroneous award, unlike an award of court, cannot be corrected by any judicial review. 

When I purchased my first house in 2018, I noticed in the pre-printed purchase agreement published by the California Association of Realtors (CAR), there was a boilerplate arbitration provision. Prior to taking Real Estate Practice, I didn't pay much attention to the arbitration provision. My real estate agent reassured me that initialing the arbitration provision is "standard practice." She did not mention any of the risks and did not educate me on the adverse ramifications of initialing the arbitration provision. Back then, I knew little about arbitration beyond the pretext that it is less costly and more efficient than litigation. In 2018, I didn't know enough to inquire about it. 

Arbitration was born out of a genuine desire to save on court costs, expedite the dispute resolution process and improve the efficiency of the real estate marketplace. In practice, however, arbitration often results in absurd legal consequences, in direct conflict with the reasons and practical purposes for its inception. 

Arbitration provisions can lead to:

• Frequent misapplication and misinterpretation of the law;
• Erroneous awards;
• A bar to discovery in preparation for hearings;
• Waiver of the right to judicial review; and 
• A lack of legal precedent for future application to conduct of buyers, sellers, brokers and agents

I argue that arbitration provisions do not belong in real estate purchase agreements. These provisions are not included in trust deeds, nor in most rental or lease agreements as all remedies in landlord-tenant law are judicial. They are omitted for good reason: it is rules of law, not an "arbitrary" arbitrator, which control for fair results. Do you think arbitration provisions should appear in real estate purchase agreements, trust deeds, rental and lease agreements? 

Paradise Hell or Paradise Hill?

A few weeks ago, I successfully completed an online class called Legal Aspects of Real Estate at Diablo Valley College. I also completed Real Estate Principles and Real Estate Practice, but I thought the real estate law class was the most interesting one. Fascinated by some of the some of the legal battles that have taken place since 1990, I did some research and found a few interesting cases such as the one described below.  

In March 1989, a homebuyer (Brenda Procel) who was not satisfied with the workmanship and materials in her new home distributed leaflets in front of the developer's model home and on two weekends, she spoke to prospective customers trying to discourage them from buying homes at Paradise Hills. She also posted signs on her house: "I bought a $200,000 fixer-upper," "My house leaks and no one gives a damn," and "We moved to Paradise Hills, but we live in hell." At various times, up to 20 other homeowners posted similar signs on their houses. Procel spoke with newspaper reporters about her house, and a local newspaper published an article about the situation. Based on these activities, the developer filed a complaint against Procel for declaratory relief, damages for interference with prospective economic advantage, and injunctive relief for interference and conspiracy. The developer did not allege that any of Procel's statements were false; however, the developer alleged that her statements were made with the intention to injure the developer in its business of selling houses. What is declaratory and injunctive relief? Declaratory relief is asking the court to state the rights of the parties without ordering any specific action or listing awards for damages. Injunctive relief would prohibit someone from doing something. Was the homeowner acting within her rights? What do you think happened and why? 

The developer, Paradise Hills Associates (PHA), sought and was granted a preliminary injunction. What is an injunction? An injunction is a court order to desist from some activity. The injunction was issued by the trial court as preliminary relief in a lawsuit for interference with business interests. 

However, after reviewing the traditional balancing factors, the Court of Appeal reversed the injunction on the ground the preliminary injunction unduly interfered with the defendant's First Amendment speech rights, which were not overridden by any other factors. (Paradise Hills Associates v. Procel, at pp. 1542-1547). What were the balancing factors? What was in question is the balance of hardships. A preliminary injunction is justified when the trial court determines that a greater injury will result to the moving party (the party who is making a motion -- in this case, the plaintiff, Paradise Hills Associates) if the injunction is denied than will result to the opposing party (Procel) if the injunction is granted. PHA's prospective hardship is economic: sales of the houses it constructs are allegedly deterred by Procel's activities. In contrast, the hardship to Procel from an injunction is the potential for interference with her first amendment right to freedom of speech. Procel expressed her views through picketing, leafleting and posting signs. Each of these forms of communications is entitled to First Amendment protection. 

Courts have recognized the importance of the public's access to consumer information. The growth of 'consumerism' in the United States is a matter of common knowledge. The Court of Appeal concluded that the content of Procel's speech, to the extent it provides truthful information and opinions about PHA's business, is entitled to First Amendment protection. The preliminary injunction was reversed. What are the key takeaways from this case?  

• If you're a real estate developer, focus on relationships. You need to have great relationships with your tenants, architects, bankers, attorneys, contractors, geologists, engineers, and more. Treat everyone around you as though they're the most important person in the room, as these relationships are going to go a long way. PHA denied Procel's claims, but agreed to perform substantial reconstruction, repairs and upgrading on her house. Customers do not appreciate being told they are wrong. Even if the customer is mistaken, as a developer, it's important to find a way to repair and restore the relationship and not accuse the customer of being wrong.  
• Solve problems. When something goes wrong, rather than ignoring the problem or denying that there is a problem, the developer needs to work with his or her team to make sure things get back on track and the problem is solved. PHA performed substantial reconstruction, repairs and upgrading on Procel's house, but it was too late. The damage had already been done when PHA denied her claims.
• Mitigate risk. Once it became clear that there were problems with the homes that were being built at Paradise Hills, the developer should have found ways to mitigate that risk. When Procel's claims were denied, she found 20 other homeowners who also posted signs on their houses complaining about the workmanship and materials in their homes. If PHA had not denied Procel's claims and agreed to repair and upgrade the homes of the dissatisfied homeowners, chances are Procel would not have distributed leaflets in front of the developer's model home and discouraged prospective customers from buying homes at Paradise Hills. Most likely, Procel's actions encouraged 20 other homeowners to post similar signs outside their homes and as a result, this situation attracted negative media attention. All of this could have been avoided if PHA had accepted full responsibility from the very beginning for the quality of their workmanship and made the necessary repairs and upgrades to the affected homes. 

Source: Paradise Hills Associates v. Procel (1991), 235 Cal. App. 3d 1528, 

COVID Shaming

In mid-August 2020, I volunteered as an enumerator for the US Census Bureau. What is an enumerator? Working as an enumerator involves visiting and interviewing people who have not completed the 2020 US Census Bureau questionnaire. Each of my assignments required visiting people in houses that were within a few miles of where I live in Martinez, California. With temperatures spiking up to 100 degrees, I felt sweat oozing down behind my face mask. Much to my surprise, many of the people who answered the door were not wearing face masks. In my house, I installed three sets of hooks right by my front door where I hang my face masks. I tried to stand at least six feet away from each person I interviewed, but some of my neighbors were hard of hearing and in those situations, I had to stand closer than six feet away from people who were not wearing face masks.

Ever since the shutdown began in March 2020, I have been extremely careful about observing all the recommended COVID-19 safety protocols. I wear a KN95 face mask whenever I leave my house, I use gloves while grocery shopping, and I carry hand sanitizer everywhere. I worked from home four days a week so my exposure to the general public was minimal. However, once a week, I rode the BART train for an hour from Martinez to Oakland, where I worked as a commercial property administrator. I was worried that the US Census work I did on the side had some risks, but given the detrimental impact of an inaccurate count in 2020, the risks seemed worth taking. Why is the U.S. Census so important? The U.S. Census helps our communities determine where to build everything from schools to supermarkets, and from homes to hospitals. It helps the government decide how to distribute funds and assistance to states and localities.

During that August weekend, I started to have trouble breathing right after my last census visit. My chest tightened with severe pressure and my headache turned into a full-blown migraine. I rarely experience headaches so I attributed my unusual symptoms to heat exhaustion. But on the following Monday, my company announced that one of our employees had contracted COVID-19. I was no longer experiencing breathing problems, chest pressure and a headache, but I thought it would be prudent to get tested for COVID-19 just in case I had come into contact with the infected employee. Two days later, I received the devastating news that I was infected with COVID-19. At first, I thought I contracted COVID-19 from my enumerator work, but my physician told me that the symptoms would not have appeared until a few days later and most likely, I caught the disease in early August and not in mid-August. 

I suspected the virus would take a toll on my health, but I was completely unprepared for some of the other less-publicized effects -- like how it would affect my personal relationships. Most people know someone who has contracted COVID-19. As a result, many of us have become armchair experts in the highly contagious aspects of this disease, its devastating impact on communities of color, and the struggles experienced by long haulers who are still experiencing the side effects of COVID. But there are other effects that have nothing to do with the physical effects of this disease. . . 

It is so easy to assume that the unlucky ones were not careful enough. Perhaps they wore face masks below their noses and mouths when they left their homes. Maybe they were attending super spreader events with large groups of people. Perhaps they did not wash their hands for at least 20 seconds in warm, soapy water. But I was not careless when it came to COVID. Nevertheless, I still experienced shame and ostracism from people whom I thought knew me well. 

For example, one of my housemates -- a woman in her 50s whom I'll call Frances -- freaked out when I shared my diagnosis with her. She immediately moved out of my house for two weeks and while I was self-isolating and quarantining in my bedroom, not once did she reach out to me to see how I was doing. My other housemate, a 23-year-old woman whom I'll call Abigail, took everything in stride and generously volunteered to prepare my food and clean all my dirty dishes during my two week quarantine period. 

Even after I recovered from COVID and my 10 days of self-isolation had ended, Frances told me that she did not feel safe being in the same room with me. Frances forced me to create a complicated kitchen schedule with prescribed times when each housemate was allowed to use the kitchen. Frances told me, "Obviously you weren't careful enough and that is why you caught COVID." If we happened to pass by each other in the hallway, Frances would turn and run away from me. Despite all the medical information about how long people are contagious after catching COVID-19, Frances seemed convinced that I was still shedding the virus. 

I felt extremely hurt because prior to catching COVID, Frances and I were close in the past. We used to watch movies in my living room together, visit the Farmer's Market in Martinez, and go on shopping and hiking excursions together. We had even planned to go on a trip together to Carmel, California in October 2020, but Frances cancelled the trip after I contracted COVID-19 in August.

But Frances wasn't the only one who reacted very negatively after I received my diagnosis. When a contact tracer reached out to one of my friends, a woman in her 50s whom I'll call Anna, she became angry that I had given the contact tracer her contact information. Anna felt that I had betrayed her and told me, "The last thing I want to do is isolate for 14 days." She decided not to tell her employer and continued going into work and meeting with her patients. She also temporarily cut off ties with me for three weeks and said she needed a break from our friendship. 

I found all these reactions mystifying because I knew I did the right thing. When you get COVID, you're supposed to inform the contact tracer about every person you have been in close contact with for 15 minutes or more. What is contact tracing and why is it so important? Contact tracing is the process of finding out who has recently been in close contact with a person infected with COVID-19, and reaching out to those people to let them know they may have been exposed and advising them to quarantine for 14 days in order to reduce the possible spread of the disease. The success of contact tracing depends on the honesty of every person who has been exposed to COVID-19. Contact tracers can only be effective if people who test positive for COVID-19 tell them where they went and who they saw during the window when they were contagious.

After COVID-19 reared its ugly head in my home -- not just once, but twice (in October 2020, my 23-year-old housemate, Abigail, also caught COVID two months after I recovered from the disease) -- my relationship with Frances completely broke down. Our communications were limited to long, anxiety-ridden text messages and emails about kitchen shifts and broken appliances (Frances accidentally broke my garbage disposal). COVID exacerbated the tensions in our relationship and on December 31, 2020, Frances moved out. The reason she gave was, "I do not want to live with anyone who has had COVID." Ironically, her new roommate caught COVID two weeks before Frances was scheduled to move in with her. 

Most of my friends have been kind and supportive, but a few have remained wary. Even though I am fully vaccinated (I received the two-dose Pfizer vaccine), some of my friends do not feel comfortable going on a hike with me even if I wear a KN95 face mask. It still feels like I'm being treated like a leper. 

Nevertheless, I do not regret being open about my experiences with COVID because I am not ashamed that I caught this disease. Initially, I had post-COVID symptoms, but after receiving the second dose of the Pfizer vaccine, my physical stamina has returned and I successfully completed three real estate classes (Real Estate Principles, Legal Aspects of Real Estate and Real Estate Principles) with an "A." 

While we continue to adjust to our new normal, it's time for all of us to exercise some compassion instead of shaming those who are still struggling with this dreadful disease. 

The Many Charms of Valparaiso, Chile

On August 21, 2017, I viewed my first total solar eclipse from Culver, OR. My best friend, Peter, and I were so awestruck by the experience that we decided to travel all the way to La Serena, Chile to witness the eclipse on July 2, 2019. As we expected, it was an awesome experience that we shared with the 300,000+ tourists and locals from the beach in La Serena. The major reason we decided to visit Chile this summer was to see the eclipse, but what I truly cherish about my Chilean experience was our tour of the colorful seaside city of Valparaiso.  

We spent three days exploring the city which is approximately one hour away by bus from the capital of Chile, Santiago. Much to our surprise, we found several vegan restaurants and my new favorite Spanish expression is "veganos?" Apart from the delicious cuisine, most of our time was spent wandering up and down the streets of Valparaiso and stopping to take hundreds of photos of the insanely amazing street art. I wish I could hire some of these talented Chilean artists to paint a mural on the outside of my house, but my neighbors might not approve. My traveling companion was not as obsessed with the street art as I was, but both of us agreed that Valparaiso is home to some unique and incredible pieces of art work that you won't find anywhere else in the world. Almost every block we visited featured extraordinary street art. The art was so mind-blowing that we didn't mind climbing up and down one hill after another in search of the next great piece of art. 

The vibrant street art is only a small fraction of the colors that make up Valparaiso. Almost every building was painted a different color which made for some fantastic photo opportunities, especially when viewing the city from one of the many hills. Our favorite way of traveling up a hill was the funicular (a special type of railway that travels up and down steep slopes). The locals call them "ascensors" (elevators). There used to be 31 operational elevators in Valparaiso that operated as a transport network. Now only 15 survive and these old, rusty machines make a great tourist attraction. 

Despite our rather limited Spanish-speaking skills, the Chilean people were some of the friendliest people I have met in all of my international travels. The most common question I asked was "banos?" (bathroom) and every local person I approached pointed us in the right direction. At each of our hotels, we received nice thank you gifts such as a visitor's guide to the city, an eclipse keychain, local crystals, and even an eclipse blanket! Disclosure: The hotel in La Serena gave us the eclipse blanket as their way of apologizing for the lack of hot water in our bathroom. 

The only problems we experienced in Chile had to do with heat. Due to its geographic location, the coolest months in Chile are from June to September, with temperatures ranging from 47 to 61 degrees F. With the exception of Santiago, all of our hotels did not have central heating. We were given small space heaters, but they either stopped working after only a few minutes or gave off such little heat that we had to wrap layers of blankets around ourselves burrito-style in order to keep warm. 

The ugliest part of our trip was the 11 hour flight from Los Angeles to Santiago, Chile. Even though I had a window seat, I was unable to sleep during the overnight flight from Los Angeles to Santiago. When I arrived the next day at 5:20 AM, all I wanted to do was sleep for a few hours. Fortunately, my friend, Peter, arrived in Santiago one day before I did so I didn't have to wait until 3 PM to check into our hotel room. Despite the torturous long flight, we have decided to revisit Chile next year in December for the 2020 solar eclipse, which will take place on December 14 in Villarrica, a small city in southern Chile located on the western shore of Villarrica Lake, 464 miles south of Santiago and close to the Villarrica Volcano.

In order to prepare for this trip, I have decided to enroll in a beginning conversational Spanish class at Diablo Valley College. If I like the class, I'll take more conversational Spanish classes next year. Looking back, I wish I had taken Spanish in high school and college instead of French, but back then, I never imagined I would end up living in California. 

The next U.S. eclipse will take place in April 2024 in Muncie, Indiana, which is very close to the town where I grew up. For the second time in seven years, the US will be visited by a total eclipse that covers a large swathe of the nation. This one will also include Mexico -- where the weather is likely to be finest -- and Canada, where there is a much higher likelihood of cloud cover. Key cities in the path of totality include Dallas, TX and Montreal, Canada, with Niagara Falls also within the stripe of darkness. With Easter early (March 31, 2024), the eclipse will provide a great opportunity for families with school-aged children to see an eclipse.  

Total Eclipse of the Sun

According to Chip and Dan Heath, "we all have defining moments in our lives - meaningful experiences that stand out in our memory." Viewing my first total solar eclipse from Cove Palisades State Park in Culver, Oregon was definitely one of those unforgettable experiences that I will remember for the rest of my life. Normally, I try to avoid using the word, "awesome," in my everyday parlance because I think this word is overused, but on Monday, August 21, 2017, the word, "amazing" wasn't quite majestic enough to describe the celestial beauty of what I witnessed with my naked eye. Here is a brief summary of one person's experience of her first total solar eclipse. Have you ever seen a total solar eclipse? 

When you decide to see a total solar eclipse, the first decision you have to make is where is the best place to see it? Back in January 2016, I thought a good place to view the eclipse would be Salem, Oregon, which is on the path of totality, and is only an hour's drive south of Portland, Oregon. But my best friend, Peter, advised me that the eastern part of Oregon would probably be a better location due to less cloudy weather conditions.

Madras, Oregon is near the center of the path of the eclipse, which was an ideal location, but when I called every motel in Madras and neighboring communities last year in January, I was told that their accommodations have been sold out for the past three years. The motels were also charging three times their normal rate. But then we discovered that Cove Palisades State Park in nearby Culver has three "luxury" cabins and 368 campsites available for reservations nine months before the eclipse. I put the word "luxury" in parentheses because the cabins are fairly spartan. They only include a refrigerator, microwave oven and a rubber mattress pad that is only half an inch thick. But it would have been a lot more comfortable than camping inside a tent. 

Last year in late November, Peter and I logged onto the park's Website at precisely 12:01 am and tried to reserve one of the luxury cabins. Unfortunately, three other lucky parties beat us to it, but we were able to secure one of the 368 campsites. A Chinese group from Milpitas, California whom the other campers called "the scientists" also thought Cove Palisades State Park in Culver, Oregon was an ideal location because they set up several high-powered telescopes right across from our tent. They were called "the scientists" because of all their fancy telescopes and we found out that the leader of their group happens to have a Ph.D. in astronomy. 

The second decision you have to make is when to arrive. Since the eclipse took place on a Monday morning, we decided to arrive at the park on Thursday, August 17 in order to avoid heavy traffic on the Friday, Saturday and Sunday right before Monday's eclipse. We also wanted to have enough time to explore the park and find the best spot to watch the eclipse. 

On Monday, August 21, we woke up earlier than usual, quickly ate our breakfast, washed up and hiked across the road from our campsite to a lovely secluded spot right by Lake Billy Chinook. We met a family from Milpitas, California who had arrived a few minutes before we did, but we found another picnic bench right by the lake. There were trees obscuring the view of the sun, so we moved the bench further away from the trees and closer to the shore of the lake in order to catch the full view of the eclipse in all its glory. 

As the minutes ticked by, the temperature around us steadily dropped by a few degrees every ten minutes. When we first arrived, I felt perfectly comfortable in my solar eclipse T-shirt and shorts, but by 10 am, I wished I had worn long pants and a hooded jacket. It was fascinating to watch the moon gradually move over the sun like the sliding weight of a metronome until all we could see was a thin fingernail of golden light slowly blinking at us as the sky gradually darkened. 

Nineteen minutes and thirty seconds later, cheers erupted from all over the lake as the moon slid completely over the sun and twilight rapidly descended on the lake like a soft cotton blanket. I gasped at the view of a pulsating grayish orb hovering in the sky with lacy ribbons of white light curled around its face like miniature rings on the planet Saturn. Two minutes later a bright spark of diamond white light burst forth from the right-hand side of the moon and I quickly slipped on my eclipse glasses to protect my eyes from the sun. I will never forget those magical two minutes when the sun was completely obscured by the moon except for its glowing corona. 

After reflecting on such an awesome experience, was there anything "bad" about our trip? It depends on one's comfort level with hot summer temperatures. From approximately 11 am until 5 pm, the temperatures in the park hovered in the high 80s to low 90s. Of course, there was no air conditioning at our campsite so most people cooled down by going for a swim in the lake. Unfortunately, I forgot to bring my swimsuit so I tried to cool myself down by running through the sprinklers set up at various places around our campsite. I felt rather foolish doing this because I'm a middle-aged adult, but it was the fastest way to cool myself down without taking a shower. I wish the total eclipse had taken place during a cooler time of the year, but you can't control the timing of Mother Nature. 

The ugliest part of our trip was the unexpected four-hour traffic jam from Bend, Oregon to Klamath Falls, Oregon. We thought that by leaving on Tuesday morning, we could avoid the heavy traffic on Monday when most of the eclipse watchers vacated the campsite to head home, but we were wrong. Apparently, many other eclipse watchers had the same idea as we did and Tuesday's traffic nightmare was by far the worst traffic jam we had ever experienced in our lives. We did not arrive back in the San Francisco Bay Area until 2:22 AM on Wednesday. 

Why do I think I will always remember my first total solar eclipse? Research has found that in recalling an experience, we ignore most of what happened and focus instead on a few particular moments. According to Chip and Dan Heath, "when people assess an experience, they tend to forget or ignore its length -- a phenomenon called "duration neglect." Instead, they seem to rate the experience based on two key moments: (1) the best or worst moment, known as the "peak;" and (2) the ending. Psychologists call it the "peak-end" rule. 

The best moment of our trip was viewing the total solar eclipse, but the worst moment was the heavy traffic on Tuesday, which also happened to coincide with the ending of our vacation. Nevertheless because I loved my first total solar eclipse, I'm glad we made the trip from California to Oregon. I’m looking forward to my next total solar eclipse! The next one will take place on July 2, 2019 in Chile, Argentina, the South Pacific and Antarctica.

In case you were curious, the next American eclipse will take place on April 8, 2024 and it will cross the following states: Texas (including parts of San Antonio, Austin, and Fort Worth and all of Arlington, Dallas, Killeen, Temple, Texarkana, Tyler and Waco), Oklahoma, Arkansas (including Hot Springs, Jonesboro, and Little Rock), Missouri, Illinois, Kentucky, Indiana (including Bloomington, Evansville, Indianapolis, Muncie, Terre Haute, and Vincennes), a very small area of Michigan, Ohio (including Akron, Dayton, Lima, Toledo, Cleveland, Warren, Newton Falls and Austintown), Pennsylvania (including Erie), Upstate New York (including Buffalo, Rochester, Syracuse, the Adirondacks, Potsdam, and Plattsburgh), and northern Vermont (including Burlington), New Hampshire, and Maine.

Since I'm from Indiana, I plan to view the next American total solar eclipse from Muncie, Indiana. My sister wants to join me and my girlfriend, Tammy, offered to let us stay at her farm house in Muncie. Here is a bit of trivia information about Muncie. It was featured in the film, "Close Encounters of the Third Kind." It will be fun to see the eclipse with some of my Hoosier friends! 

Arrival

On January 20, 2017, Americans will experience the arrival of our new President, Donald Trump. On Saturday night, I experienced the movie, "Arrival," with one of my girlfriends. Even though this film is science fiction, its message rings true today. With the arrival of language, a host of new possibilities for our world emerged. Language is powerful and potent. It can be used as a weapon as we witnessed with all the name calling and mudslinging that took place during the 2016 Presidential election. But it can also be used as a tool to forge new connections. Its power belongs to the individual who wields it and it should be used wisely and with discretion.

Proper interpretation is essential. The same word can be interpreted in many different ways, depending on the recipient's frame of reference. For example, the word, "weapon," holds a negative connotation for most of us, but were you aware that there is a second definition of weapon? According to the Merriam-Webster dictionary, weapon can also mean "something (such as a skill, idea, or tool) that is used to win a contest or achieve something." 

The environment in which language unfolds plays an important role in how words are interpreted. Fear is a dangerous element when it enters our lexicon. And the rabble rousers know how to use words that invoke fear among the general populace in order to achieve their political agenda. During periods of uncertainty, fearful people often have a knee-jerk reaction to unsettling events and seek quick fix solutions. If they view another person or an entire race as dangerous or undesirable, they look for ways to shut these people down or prevent them from entering our country. The Great Wall of China was built in order to protect China against incursions by nomads from Inner Asia, but the wall was not impenetrable and today, walls cannot protect a nation from being invaded.

[Spoiler alerts] Even the shape of a language can influence one's interpretation. In "Arrival," the language of the aliens was circular, a series of endless loops unbound by the linearity of time. By contrast, the English language is linear. Circles represent connection and continuity. There is no beginning and no end because the continuous line of a circle represents a never ending cycle of generation and regeneration. I love how Louise chose to give her daughter a palindromic name, "Hannah." I have always loved the name, "Hannah" because of its symmetry. The movie, "Arrival" displays many patterns of symmetry and plays with the concept of time moving forward and backward. 

Language affects the way the brain experiences the world. The aliens come from a world where everything is connected and their message was one of connection. But in "Arrival," China chose to view the aliens as invaders instead of connectors. China is an insular society where people who are not Chinese are viewed as outsiders so it was not surprising that initially, China feared the aliens. The alien pods landed in twelve different spots on Earth because it was the only way to teach humans the importance of connection and collaboration. 

When the leader of China finally decided to withdraw from its military action against the aliens, the other countries followed suit and shared what they learned with the other sites. But Louise was the only person who was able to dissuade the Chinese leader from attacking the aliens. If you haven't seen the movie yet, I will not disclose how she was able to do that, but I will give you a hint. She used language. 

Why did the aliens choose Louise as their conduit? Unlike the other members of the scientific mission, she allowed herself to become vulnerable and transparent. Inside the alien pod, she was the first person to remove her oxygen mask so the aliens could see her face more clearly. Even her house is transparent with its stunning floor to ceiling windows overlooking the lake. Her home is my new dream house! 

If you want to form a connection with another individual, transparency is key. In my opinion, lack of transparency was one of the reasons Hillary Clinton lost the election. People who reveal information are seen as more trustworthy than people who decline to disclose information. With Hillary, there were many examples where she wasn't forthcoming, so she came across as a hider, which I think explains in part why she was viewed as untrustworthy by many Americans. For example, when Hillary had pneumonia, she chose not to address the issue and denied being unwell until a video emerged of her fainting. 

Donald Trump was also extremely private about some things, such as his tax returns. But he had a few key acts of proactive disclosure that perhaps made people forget about the situations where he declined to disclose information. What's more, the fact that people felt that he "told it like it is" -- he was forthcoming about beliefs that might garner him social stigma -- enhanced his reputation for trustworthiness. Saying risqué things can give you great bang for your buck when it comes to trust -- though of course, it also has its risks. 

Back to Louise. In addition to being transparent, Louise was also vulnerable, which turned out to be a strength. Being vulnerable with someone establishes intimacy and trust, creating a shared emotional experience to forge a bond. People typically feel open and warm toward someone who indicates she or he is vulnerable. Vulnerability can also humanize you, facilitate learning, and enable optimal problem solving. Louise's vulnerability helped her decode the language of the aliens and save our world. 

Here are my main takeaways from the movie:

• Words can serve as a weapon or as a tool. Focus on your intent and ramifications of your actions. Are you more interested in attacking or understanding?
• Before you automatically jump to conclusions, interpret someone else's words carefully. Consider the context of the other person's speech, the environment, his or her history, etc.
• Examine your own emotions before you take action. Are you in a fearful state of mind? If so, then there's a greater chance that you will misinterpret someone else's words.
• Be transparent. If you want to develop stronger relationships with others, being secretive about yourself will not score you any points.
• Have the courage to be vulnerable. Vulnerability is not a weakness. Vulnerability is the courage to show up and be seen and heard even when you can't control the outcome.

​If you enjoy language, communication and linguistics, this is the movie for you. It is not your typical science fiction movie. While there are some special effects, the most powerful effect this movie will have on you is your mind. If you are willing to immerse yourself into the experience of this movie, you will view language and communication in a different light (hopefully in a more inclusive rather than derisive manner). 

How to Give a Speech According to the Head of TED

Most of you have heard of the famous TED Talks. For the uninitiated, TED (Technology, Entertainment, Design) is a global set of conferences run by the private nonprofit organization Sapling Foundation, under the slogan "Ideas Worth Spreading". TED's early emphasis was technology and design, consistent with its Silicon Valley origins, but it has since broadened its focus to include talks on many scientific, cultural, and academic topics. TED events are held throughout North America and in Europe and Asia, offering live streaming of the talks. They address a wide range of topics within the research and practice of science and culture, often through storytelling. The speakers are given a maximum of 18 minutes to present their ideas in the most innovative and engaging ways they can. Past speakers include Bill Clinton, Jane Goodall, Al Gore, Gordon Brown, Billy Graham, Richard Dawkins, Richard Stallman, Bill Gates, Bono, Mike Rowe, Google founders Larry Page and Sergey Brin, and many Nobel Prize winners. TED's current curator is the British former computer journalist and magazine publisher Chris Anderson. Since June 2006, the talks have been offered for free viewing online. As of March 2016, over 2,400 talks are freely available on the website. In June 2011, the talks' combined viewing figure stood at more than 500 million, and by November 2012, TED talks had been watched over one billion times worldwide.

Source: https://en.wikipedia.org/wiki/TED_(conference)

On May 16, I attended a talk given by Chris Anderson, the head of TED entitled TED Talks. As a member of Toastmasters International since 2003, I wanted to learn more about how to create an unforgettable talk. The typical Toastmasters speech is only five to seven minutes long, compared to an 18 minute TED talk, but surprisingly, I discovered that it's much harder to craft a seven minute talk compared to an 18 minute talk. I view a Toastmasters speech as a light snack -- something that can be easily consumed in just a few minutes whereas a TED talk is more like a robust salad or a hearty bowl of soup. 

When I attended the talk, the $28 ticket included a copy of Chris Anderson's latest book, TED Talks: The Official Guide TED Guide to Public Speaking. Anderson was only scheduled to speak for 45 minutes, but here are the key takeaways from his talk:

When Anderson first took over leadership of TED in 2001, he struggled to persuade the TED community to back his vision for TED. He was not a naturally great speaker, but when he spoke from his heart, Jeff Bezos, the head of Amazon, rose to his feet and started clapping at the end of his talk. And the whole room stood with him and started clapping too. The lesson I learned: Speak from your heart.

Start strong. Don't say you're grateful to be giving this talk. It's boring. Give people a reason to come along for the journey.

Be human and show vulnerability. One of the best ways to disarm an audience is to first reveal your own vulnerability. Share an anecdote. Talk conversationally to your audience. 

Give your audience a gift of an idea that could potentially change who they are. What is an idea? It is a super power because with ideas, we can create new worlds. Find a way of speaking up if you have an important idea to share. Your number-one mission as a speaker is to take something that matters deeply to you and to rebuild it inside the minds of your listeners. An idea is anything that can change how people see the world. The only thing that truly matters in public speaking is not confidence, stage presence, or smooth talking. It's having something worth saying. And what matters is that you do it your way. 

Words matter. It's the words that tell a story, build an idea, explain the complex, make a reasoned case, or provide a compelling call to action. You can't just use your language. Use the audience's language. Use metaphors to explain something that is complex. To say something interesting you have to take the time to do at least two things:

1. Show why it matters. . . What's the question you're trying to answer, the problem you're trying to solve, the experience you're trying to share?
2. Flesh out each point you're trying to make with real examples, stories, facts. 

Every talk should have a throughline, the connecting theme that ties together each narrative element. Try to encapsulate your throughline in no more than 15 words. And those 15 words need to provide robust content. Your throughline should have some kind of intriguing angle. What is the precise idea you want to build inside your listeners? What is their takeaway? What is it that you want your audience to have an unambiguous understanding of after you're done? The key is to present just one idea -- as thoroughly and completely as you can in the limited time period. You should then build a structure so that every element in your talk is somehow linked to this idea. 

Make eye contact, right from the start. Eye contact, backed by a warm smile, is an amazing technology that can transform how a talk is received. Don't give a talk with your head buried in your notes. Look at your audience. Be warm. Be real. Be you.

Make them laugh, but not squirm. Humor hacks away the main resistance to listening to a talk. Audiences who laugh with you quickly come to like you. But be careful. Ineffective humor is worse than no humor at all. Telling a joke that you downloaded from the Internet will probably backfire. What you're looking for instead are hilarious-but-true stories that are directly relevant to your topic or an endearing humorous use or language. 

Several years ago, a man I used to work with told an off-color joke at a money manager seminar in front of our top clients. Perhaps the joke would have been funny if you were hanging out with him in a bar on a Friday or Saturday night, but the joke had absolutely nothing to do with the investment topic and it was inappropriate for an audience of mostly sixty to seventy-year-old couples. 

Park your ego. Would you want to trust your mind to someone who was completely full of himself? Ego emerges in lots of ways that may be truly invisible to a speaker who's used to being the center of attention:

• Name-dropping
• Stories that seem designed only to show off
• Boasting about your or your company's achievements
• Making the talk all about you rather than an idea others can use

Tell a story. We're born to love stories. They are instant generators of interest, empathy, emotion, and intrigue. The stories that can generate the best connection are stories about you personally or about people close to you. You can use stories to set up your ideas. But be careful. Some stories can come across as boastful or emotionally manipulative. The guideline here is just to be authentic. Is that the real you telling the story? A good test is to imagine whether you would tell this story to a group of old friends. And if so, how. Be real, and you won't go too far wrong. 

Persuade. Take something down that is out there and replace it with something else. Show the absurdity of the idea you're trying to replace. 

Unleash your voice. You have this whole other layer of communication by what your voice can do. You can really transform the meaning of what you're trying to say through your voice. Use your voice to pull people in.

Disconnected Young Men

On May 10, I attended a talk given by Dr. Philip Zimbardo,author of Man Interrupted: Why Young Men Are Struggling & What We Can Do About It. Dr. Zimbardo is a psychologist and a professor emeritus at Stanford University. He is famous for his 1971 Stanford prison experiment, and has written various introductory psychology books, textbooks for college students, and other notable works, including The Lucifer Effect: Understanding How Good People Turn Evil, The Time Paradox: The New Psychology of Time That Will Change Your Life and The Time Cure: Overcoming PTSD with the New Psychology of Time Perspective Therapy. He is also the founder and president of the Heroic Imagination Project, a a 501(c)3 nonprofit organization that teaches people how to take effective action in challenging situations. 

According to Zimbardo, the new threat to young males (preteens to twenties) is their choice to live in virtual reality instead of social reality. Unfortunately, this is not a phase and they don't outgrow it. So many young men have chosen social isolation because they don't know how to resist the enchantment of computer and video games. 

Video games are a multi billion dollar industry. They are popular because they focus on male values -- aggression, competition, war, destruction. Seventy percent of all video games are played by men. In video and computer games, young men get to experience being the hero and the antihero without the conditions or permanence of real life, and without risking life or limb. Therefore, it's no wonder that many young men consider the thrill-paced worlds of online porn and video games far more exciting than anything they encounter on a daily basis in their real lives. Thanks to the Internet, pornography is available 24/7. Children as young as six years old are watching pornography. 

The young men who game to excess often avoid anything that undercuts their means of achieving validation because it is so woven into their identities. Therefore it is doubly threatening when their activities are being questioned because they themselves are being critiqued at the same time. Virtual actions and ego become interchangeable. Distraction and immersion into their preferred virtual space serves as a shield around them, pushing any ego-puncturing inconsistencies out of sight. 

Zimbardo explained that there's nothing wrong with video games if played in moderation (one to two hours a day). For example, video games can improve hand eye coordination. The problem is that kids are playing video games seven to ten hours a day and they are addictive because they're designed to be addictive. Video game producers are constantly making their games more unusual and exciting to combat habituation. The problem is virtual reality has become more rewarding than physical reality for many young men. Multiple problems are associated with excessive gaming including obesity, desensitization to violence, social anxiety, social phobia and shyness, greater impulsivity, depression, and decreased school performance.  Compared with teenagers who don't play video games, adolescent gamers spend about 30 percent less time reading and 34 percent less time doing homework. When we immerse ourselves in a stimulating visual environment where a lot of information is demanding our immediate attention, the cognitive load overburdens our working memory. Having a high cognitive load amplifies distracted mess, and makes it more difficult for the mind to distinguish between relevant and irrelevant data. Studies of gamers that play for long periods of time have shown a reduction of gray matter areas of their brains, including parts of the frontal lobe, striatum, and insult -- areas that carry out executive functions like planning, prioritizing, organizing, empathy, and impulse control.  Surprisingly, it takes only a week of playing violent video games to depress activity in portions of the brain responsible for emotional control. Zimbardo provided the following statistics:

• 47% of men who are heavy media users get fair to poor grades
• 33% of men who are moderate media users get fair to poor grades
• 23% of men who are light media users get fair to poor grades

Not all aspects of real life are laid out in a discernible pattern as is found in computer and video games. As gamification becomes more integrated into everyday life, creatures of habit will look for similar patterns elsewhere, likely becoming lost or losing motivation when the path does not appear before them. According to Zimbardo, our current generation is conceivably the less prepared generation for real world navigation, decision making, and problem solving. 

Let's face it. Earning rewards and achieving status in a virtual world is much easier than achieving those things in real life so our young men are paying the price of social isolation in the real world because their artificial worlds are so much more enticing and rewarding. One reason why young men may feel entitled to things these days is because very few of them actually participate in the process of building or maintaining the things they take for granted. Just as it is necessary to humanize a person to have empathy, in order to fully appreciate any given thing there needs to be a sense of the efforts and resources that went into making it. Nowadays, many young men have no sense of awe. They have become disconnected from the physical reality around them. Young men no longer have the patience or desire to lean how to build the foundations of success, nor are they inclined to expose themselves to what they perceive as ridicule if they were to fail along the way.  

Why are video and computer games so enticing? Zimbardo explained that when you play these games, you receive a score and the more you practice, the better you get, which motivates you to play even more in order to earn a higher score. Video and computer games offer virtual rewards at regular intervals, often after a certain level has been reached or a specific skills has been mastered. This schedule of reinforcement fits in perfectly with the kind of operant conditioning used by psychologist B.F. Skinner in the 1940s to motivate pigeons to press a lever endlessly for extra food in his specially designed "Skinner Box." Behavior that is positively reinforced tends to be repeated, especially if it comes at variable rates, and in video games, after the required amount of effort and skill has been made, the reward is guaranteed. 

Some games are designed to give rewards sporadically along the way to the goal. Similar to the bait-and-switch technique, these games reward behavior only some of the time in order to keep a person engaged. Throwing in the occasional punishment -- like taking away hard-to-come-by weapons -- is another way to effectively control a player's behavior as well as motivate them to improve their skills so they don't make the same mistakes again.

The late Maressa Orzack, who was a clinical psychologist and assistant clinical professor of psychology at Harvard Medical School, determined that the process of character development and reward systems within video games are a facet of operant conditioning, and are deliberately being incorporated into the games by their sophisticated designers. 

Why are so many young men playing video and computer games excessively? According to Zimbardo, socially isolated young men have fewer outlets for expression. Games are fun, visually dynamic and they provide young men with opportunities to form virtual communities. The goals of the game are clear and simple, and there are guaranteed rewards -- unlike real life.  

According to Zimbardo, shyness has become a self-imposed psychological prison. When I was a young child, I wanted nothing more than to shed the shackles of my self-imposed shyness. What is different today is that shyness among young men is less about a fear of rejection and more about fundamental social awkwardness -- not knowing what to do, when, where or how when faced with a social situation. They have never learned the basic rules of social communication. 

Many young men today are choosing social isolation. They don't care about what other people think of them and they are not afraid of rejection. They don't want to be part of the social community. Instead, they would rather be left alone so they can do their own thing.  The disadvantage of playing video games, especially a lot of exciting video games, is that it can make other people and real life seem boring and not worthwhile in comparison. Compared with gamers that play with others in the room, lone gamers are less likely to seek information about politics or current events, raise money for charity, or be committed to civic participation. A gamer's enemy today is social obligation: responsibilities, time management, dealing with real people, and taking real risks. 

When my son entered middle school, we noticed how he gradually drifted into the artificial world of video and computer games. He used to look forward to our Sunday family dinners at CPK (California Pizza Kitchen), but once he became hooked on computer and video games, gaming became far more important to him than family meals. Instead of eating in our dining room, he started eating all of his meals in front of a video or computer game. In vain, I tried to get rid of all of his computer and video games, but his father thought I was being too draconian and allowed him to continue playing his beloved games for as long as he wanted. 

Jane McGonigal, director of game research and development at the Institute for the Future in Palo Alto, California and author of Reality Is Broken: Why Games Make Us Better and How They Can Change the World, predicts that the average young person will spend 10,000 hours gaming by the time he reaches age 21. To put this figure into context, it takes the average university student half that time -- 4,800 hours -- to earn a bachelor's degree. The average young man spends 13 hours per week playing computer and video games versus five hours per week for the average young woman. Young women primarily play games on smartphones and tablets; games that are short such as Words With Friends and nonviolent, whereas guys are playing immersive first-person shooter games on consoles or computers that require a keyboard and mouse and have a much longer time commitment.

Some journalists are trying to convince people that women are just as into gaming as guys, but it's misleading. The 10,000 hours figure is the average of young men and young women, and since guys play almost triple the amount, the hours spent gaming by age 21 is probably more like 14,400 hours for young men versus 5,600 hours for young women. Girls' interest in gaming generally tapers off by their teenage years whereas boys' interest increases.

Addiction to video and computer games has resulted in an unstable hierarchy of needs. If you recall from your introductory psychology class, in Abraham Maslow's Hierarchy of Needs, there are five stages of growth in humans corresponding with different levels of needs. The bottom of the pyramid consists of our most fundamental needs which he called Physiological needs: food, water, sleep, shelter. The next level represents our Safety needs: employment or access to resources, health, freedom from fear. The third level contains Love/belonging needs: friendship, family, intimacy. The fourth level represents our Esteem needs: confidence, achievement, mutual respect with others. And the highest level is Self-actualization: morality, creativity, spontaneity, problem solving, lack of prejudice, being able to accept negative facts about yourself, achieving one's full potential. 

The Internet and virtual reality has made everything in Maslow's hierarchy of needs irrelevant except the bottom two tiers. A person who is gaming all by himself may be able to achieve their esteem needs yet completely bypass a sense of belongingness and fail to address their need for love. Gamers may think they have "hacked Maslow," but it does not come without a major side effect: entitlement without the ability to relate to others. Games put you in a fictional mature situation, but without any of the consequences you would normally face in real life. You can feel powerful and 'experienced' without all of the failures leading up to real-life success in those areas. Furthermore, self-actualization cannot be reached without the fulfillment of other needs, so a lack of intimacy and appreciation for others creates a distorted sense of potential and actualization that is not based in any shared social reality. The lack of relatable skills, especially social skills, can distort the ability to evaluate social competence and success.

Zimbardo also spent a fair amount of time during his talk discussing pornographic sites on the Internet, but I have decided to focus this discussion on violent non-sexual computer and video games. 

He concluded his talk by proposing solutions that the government, schools, parents, men and women can adopt to combat rampant computer and video game addiction among our young men. 

Government

• Create male mentorship programs
• Support the role of the father (reform welfare system, enforce paternity leave)
• Get more men in grade school teaching positions
• Get junk food out of schools
• Limit endocrine interrupters

Schools

• Teach life skills: personal finance, how to apply for a job, job interview skills and other adult responsibilities
• Teach sex education: biology and psychology of sex (most schools primarily focus on the biology of sex and ignore the psychological aspects)
• Incorporate new technology by making learning more visual and interactive
• Make education more entertaining
• The Department of Education should offer technology classes for teachers
• Quash grade inflation

Parents

• Teach responsibility and resiliency (growth mindset versus fixed mindset)
• Keep a weekly activity journal of all family members and include household chores, homework, playing computer and video games
• Take technology out of your son's bedroom
• Have regular family dinners with no cell phones or tablets allowed
• Encourage your son to join Boy Scouts

Men

• Turn off the computer and video games
• Learn how to dance and make female friends
• Set long-term goals in the real world
• Become future-oriented instead of present-hedonistic
• Vote!
• Exercise regularly outdoors in nature

Women (mothers and sisters)

• Offer compassion, constructive criticism
• Show boys how to communicate their feelings and values in a healthy way
• Date a man as if you're investing in the stock market (look at his long-term potential)

Now that my son is in college, I'm hoping he doesn't have enough time to spend hours each day playing computer and video games. Since he no longer lives with me, I have no idea how he spends his free time. All I can do is cross my fingers and hope for the best now that I have an empty nest!