DICTA. April 2022

Page 29

M I T C H E L L’ S M A L A R K E Y By: T. Mitchell Panter

Lewis Thomason, P.C.

AIN’T TOO PROUD TO BEG I join a group of my co-workers two or three times a week for lunch. Lunch usually lasts no more than an hour, and we try and constrain ourselves to Market Square or Gay Street. On occasion, usually at or near payday, we treat ourselves to an “off campus” lunch. Some of our more common excursions are El Chico in Merchant’s Drive, Louis’ in Fountain City, “Cheap Chinese” on Chapman Highway, and a few spots on Cumberland Avenue. (We are best described, collectively, as “low budget.”) Lunch conversation is mostly routine. We do our best to avoid case-related discussions. After all, lunch is for getting away from work, not carrying it with you. We sometimes touch on politics, which can get heated. We talk family, travel plans, current events, new movies, and the like. We also create scenarios that present insurmountable odds and insist on clear and decisive answers on the spot. As an example, one of our more exciting discussions, which we revisit from time to time, is what animal would you be in the event of an apocalypse? (The clear and irrefutable answer is the killer whale, and you don’t even have to attach a laser beam to their heads. They’re apex predators, can see above and below water, and have impeccable echolocation skills. They literally eat sharks.) When we’re done with our meal and conversation starts to languish (there are only so many permutations to the post-apocalypse/animal scenario), we almost always have separate checks unless there’s a birthday or someone forgets their wallet (which is usually me). While closing our tabs, two things almost always happen. First, someone complains about the rising cost of lunch, and, second, one of our regular attendees embarrasses the entire group with a measly tip of no more than two dollars. To preserve anonymity, I’ll refer to this scoundrel as “Voldemort.” Unlike anyone else I know, Voldemort tips on a pre-tax basis to avoid the server “double-dipping.” That’s a sentiment I don’t understand. Mostly because it’s stupid and wrong, which is a theme for many of Voldemnort’s ideas and opinions. Nevertheless, we all love Voldemort, so much so, in fact, that the rest of us sympathy tip to pick up the slack he leaves behind. I guarantee that annually, I spend at least $75 overcompensating for Voldemort’s poor tipping. All of us hate the way Voldemort handles the situation, and although we confront Voldemort regularly, it is to no avail. Voldemort’s core argument is this: “Why should I subsidize a restaurant that refuses to pay its employees a living wage?” I understand the rationale. If we all refused to tip, servers would quit. If servers quit, restaurants either change their ways or close. Still, there’s something cold about the practice, and while I see the inequity of the gratuity system (especially in the restaurant context), punish the restaurant, not the server. Like most things in life, though, my opinion is informed not by logic or economics. Instead, my own personal experience causes me to be an over-tipper. I waited tables in college at a fine dining establishment April 2022

you may have frequented once or twice in your life: Cheddar’s. As you know, tips are customarily calculated on ticket prices, and Cheddar’s average ticket for a family of four was less forty bucks, it took a lot of tables to make a living. It takes a lot of chicken tenders to break a $100. I had a couple that regularly came in on Sundays. The husband always ordered a ribeye—well done, of course, and insisted on a fresh, full bottle of steak sauce (you know the type). The wife usually ordered the chicken tender platter but would occasionally splurge for the Monte Cristo or the chicken pot pie. I assume her decision was based on how much money they stole from the Salvation Army’s collection bin. Over the course of the meal, they complained that things were too cold or too hot. There was never enough ranch. Her seventh diet coke was too flat, and I could never bring enough “pink packs” to make his unsweet tea thick enough. Their total bill was never more than $25, and the husband never tipped beyond what change would take his bill to the next dollar. The hostesses tried to rotate who got stuck with these people because at the rate they tipped, we were actually losing money. You likely know this, but most servers participate in a tip pool that requires a portion of their gratuity be redistributed to table bussers, hostesses, and the bartender. Typically, these tip pools are calculated as a percentage of the server’s total sales, which is designed to combat the simple reality that most servers don’t report all of their tips. After losing money on this deadbeat couple for years and being exposed, generally, to the server’s way of life, I’ve leaned into tipping culture and often do so in a manner that some would call “gratuitous.” Whether that’s the right approach is actually the subject of a long and storied debate. Indeed, “To tip or not to tip constitutes one of the oldest and nastiest debates surrounding America’s restaurant business.”1 In fact, there was even a “tipping abolitionist campaign” that rose to its peak in 1915, when Tennessee, South Carolina, and Iowa joined Washington, Mississippi, and Arkansas to pass anti-tipping laws.2 Georgia soon followed suit, but by 1926, each of these states repealed their anti-tipping laws under the belief that “it was . . . futile to police something that had gained a momentum of its own.”3 So, tipping took hold, and in 1966, Congress created the “tip credit,” which is the genesis for our modern-day wage of $2.13 for tipped employees.4 At this point, tipping is so engrained in our culture that it seems impossible to avoid—even at Pizza Hut. So, I remain convinced that the right thing is not to stiff the server. Sorry, Voldemort. 1

2 3 4


Nina Martyris, Food For Thought: When Tipping Was Considered Deeply Un-American (Nov. 30, 2015, 3:58 PM), https://www.npr.org/sections/ thesalt/2015/11/30/457125740/when-tipping-was-considered-deeply-unamerican (last accessed March 9, 2022). Id. Id. Id.


Articles inside

Tell Me A Story

pages 31-32

Mitchell’s Malarkey

page 29

Pro Bono Project

page 30

Bench & Bar in the News

page 28

Your Monthly Constitutional

page 27

Barrister Bites

page 25

Legal Mythbreakers

page 24

New Members/Change of Addresses

page 26

Urban Legends

page 23

How to Thrive in Law and Life

page 18


pages 21-22

Schooled in Ethics

page 19

Barrister Bullets

page 20

Management Counsel

page 13

Legal Update

page 15

Around the Bar

page 14

Dobbs v. Jackson’s Women’s Health Organization and the

pages 16-17

Lessons Learned: Reflections from a Retiring Lawyer

page 12

Around the Community

page 10

Outside My Office Window

page 8

President’s Message

page 5

Practice Tips

page 7

What I Learned About Inclusion and Why It Matters

page 6

Judicial News

page 9

Hello My Name Is

page 11

Section Notices/Event Calendar

page 4
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