Notes

Andrew Brown compares personalized search results from Google with everybody’s favorite P.G. Wodehouse characters:

The more perfectly Google plays the role of a valet, a butler, an unshockable servant who knows our own desires better than we do, the less we will learn about the world which knows and cares nothing for our wishes. . . .[¶] [T]he more that Google becomes like Jeeves, omniscient, omnicompetent, and endlessly flattering, the more it reduces us to Bertie Woosters.

Which is debatable. Some of us routinely bend over backward in the search field to find critical, unfavorable, and otherwise challenging sources. (After reading some of Walter Kaufmann’s The Faith of a Heretic the other day, I spent quite a long time on Google trying to find unflattering remarks about Kaufmann.) When shopping for books on Amazon.com, I almost compulsively go straight to the one-star reviews because I think people who give good reviews are generally just attention-hogs and not really interested in sharing helpful information about the book.  (I also like to comment on the really bad one-star reviews and explain why they are deficient, which probably surprises no one who knows me, or who has read my blog for long enough to remember when it was considerably more acerbic.)

So I think personalized search results from Google are generally a good thing, provided searchers are critical thinkers to begin with. But that’s been the problem with online search for as long as anyone can remember. (Because, you know, how did we live before Google? Obviously, we didn’t. I propose a third calendar era: A.G., or “After Google.” This year is probably 13 A.G.)

Brown passes by, almost without remark (see the sarcastic “Thanks a lot, Eric” that closes paragraph three), the really troubling thing in his piece—this quote from Google CEO Eric Schmidt:

If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place. But if you really need that kind of privacy, the reality is that search engines, including Google, do retain this information for some time.

Really? There are no innocent secrets? No rushing undercurrent of evolutionary history in the subconscious mind, no roaring animal desires trying always to break through the rational veneer of the neocortex? Why do you think people prefer to defecate in private? There’s nothing wrong with excreting your waste; we just don’t want other people keeping tabs on when and how we do it. Maybe we are embarrassed, but no one seriously thinks we shouldn’t be. People read books about fictional characters, and sometimes about real-life characters, who behave in ways that the readers would never behave. But reading is private, and so is the individual exploration of the heights and depths of existence. People do not like to reveal their occasional thoughts of murderous rage, or their feelings of lusty desire, or their ignorance of apparently well-known facts. None of those things are wrong. Nobody should ask people to purge themselves of their human nature. We ask only that our fellow members of society control their actions, not their thoughts, which would probably terrify us.

And searching for something on Google is not doing something. If you search for “how to commit murder,” you haven’t done anything. Maybe you’re researching a novel you want to write, or maybe you’re indulging your private curiosity, with no intent of ever actually committing the crime. And maybe, like when you need to excrete some waste, you don’t really want anybody to know. So when Schmidt says of people who don’t like Google retaining information about their searches that “maybe you shouldn’t be doing it in the first place,” he demonstrates not just insensitivity, but shocking ignorance about the nature of his fellow human beings.

I use Google every day. (And Gmail, and Google Docs, and Google Finance, and Google Scholar.) With so much information available online, we need a tool to help sort it out; we need a Jeeves. But I would prefer that our Jeeves not have the foolish and ignorant views of Eric Schmidt.

A few nights ago, I attended a social event that, unlike a lot of my life, was not crawling with other lawyers. So I had the opportunity to experience the wonderful rainbow of popular responses to lawyers. Non-lawyers—my civil procedure professor called them “The Blessed Ones”—generally fall into several different categories: Respecters, Venters, and Know-It-Alls, in order of decreasing frequency.

Respecters come in a variety of flavors, but they share an understanding that lawyering is difficult and respect those of us who do it for a living. Venters also vary. Some are passive-aggressive, leading off their otherwise unbridled criticisms with transparently disingenuous phrases like “I’m not a lawyer but…” Others are bubbling over with seething hatred for lawyers and make no apologies, except to say things like, “Present company excluded, of course,” which is especially meaningless when they are anything less than longtime friends: it’s obviously a sham; what do they know about how I practice?

Which leaves the Know-It-Alls. Sometimes these are people who have dealt with a lot of lawyers, or they have a lawyer in the family, or they have seen a lot of movies or TV shows about lawyers, or whatever, and somehow they believe they have three-quarters of a legal education and all the experience needed to assert legal opinions. Respecters are always pleasant, Venters are usually sympathetic or at least apologetic to individuals, but Know-It-Alls are more troublesome. Many of them are covert Venters, but with an adequate response can generally be herded into the Respecter group, at least for the duration of a single social event, thereby avoiding undue discomfort for everyone involved. (But an attempt to make an adequate response can still be dangerous. See below.)

I briefly encountered a Know-It-All the other night. For some reason, this person mentioned the upcoming trials in Federal District Court of suspected terrorists Khalid Sheikh Mohammed and others. You can have whatever political opinion you like about those trials, but criminal trials in the federal court system are governed by legal rules. If you want to comment on the legal rules, you should know what you are talking about. But this nonlawyer Know-It-All the other night had other ideas and said something like this: “It will be a circus. They will probably say nobody read them their Miranda rights and the judge will let them off.”

Huh?

We were in the middle of a holiday party, so I didn’t want to launch into an educational seminar on Miranda, especially considering how Know-It-Alls often respond to those. Most of them have a long list of grievances against the legal system, many of which are misinformed, but all of which will require detailed explanations of law, history, policy, or all three, to satisfy the Know-It-All. The conversation will often turn into a quiz, where the Know-It-All is just trying to induce the lawyer to say something that will offend the Know-It-All and trigger a temporary transformation into a Venter. (“What do you mean ‘activist judge’ is a meaningless term?” And then you can get to something that starts to sound like the South Park-ean “They took our jobs!“) So an attempt to avoid undue discomfort during a social occasion can actually contribute to causing it.

At any rate, this idea that Miranda is a get-out-of-jail-free card for criminal defendants could not be more wrong. I don’t know where people get this idea, unless they are just of the mindset that criminal defendants (and especially suspected terrorists) have no civil, human, or other rights, and giving them anything, even the modest protections of Miranda, is tantamount to letting murderers—no, terrorists!—coach Little League. But Miranda doesn’t do that.

Here, in a nutshell, is what Miranda means: If the police have you in custody (which basically means they have constrained your freedom of movement) and they interrogate you without first obtaining a knowing and intelligent waiver of your right to remain silent and have counsel present during questioning, then your statement in response to that interrogation can be excluded from the evidence admissible at trial. So unless the entire prosecution case hangs on your statement given during custodial interrogation in the absence of a Miranda waiver, then a failure by the police to “Mirandize” you or “read you your rights” will almost certainly not result in an acquittal. There is usually other evidence that is sufficient to convince a jury that the defendant is guilty beyond a reasonable doubt.

Simple, right? Even so, the popular but absolutely untrue myth of Miranda pervades our culture, leading otherwise intelligent and generally well-informed people to make asinine suggestions, like the one that Khalid Sheikh Mohammed and other suspected terrorists—or anyone—tried in federal court (or state court) will be acquitted for a failure to Mirandize them.

I can’t fault people for being Respecters or Venters. Everybody has different experience that justifies one or the other kind of response to lawyers. But while I would like to say that Know-It-Alls are unforgivable, the fact remains that we in the legal profession have apparently done a piss-poor job of educating the general public about the law, leaving that task instead to wingnuts on talk radio and other promulgators of ill-informed half-truths. Should I have corrected that Know-It-All the other night? Maybe.

During an earlier phase of the conversation that night, I may have lifted this person’s views of criminal defense attorneys by explaining that many of them see their job not as keeping criminals out of prison, but as keeping prosecutors honest. “That never occurred to me,” said the Know-It-All. Maybe I would have had similar good luck with a response to the Miranda remark. But I was tired and not in the mood.

The problems in our legal system run deep and wide. But too many members of the general public don’t even have enough accurate knowledge of how the system actually works to think about those problems intelligently. You might be a Venter, a Respecter, or a Know-It-All, for whatever reasons in your personal experience. But if you are a nonlawyer encountering a lawyer in a social situation, you might try a fourth approach and be a Reasonable Skeptic. Instead of just respecting the lawyer for doing  hard job, or venting against all lawyers, or trying to show that you know lots of legal stuff, too, why not just ask the lawyer what he or she thinks? Most of us will be glad to tell you, especially if you are not asking for personal legal advice about a specific situation.* But be skeptical and ask questions about the legal system. It might be educational. Nobody actually knows all, but you might improve what you do know, and that might keep you from being one of those insufferable Know-It-Alls.

*If you do want personal legal advice about a specific situation, most of us prefer to meet with you in our offices. Just ask for a card and call for an appointment.

Professor Myers has little use for Thanksgiving Day:

This whole notion that one should have vague and aimless feelings of gratitude for the nature of one’s existence is just too weird, and the bow-your-head-at-the-table and radiate-blessings-at-the-cosmos tradition is pointless and silly.

I disagree. Remembering the contingency of our existence helps us avoid the hubris of believing that human consciousness—”star stuff contemplating the stars,” as Carl Sagan said—is the source and end of being. Maybe that’s not the “gratitude” that the professor abhors, because the recognition of contingency is not directed to anyone but ourselves and that seems to be his real complaint (that is, the outwardly directed “feelings of gratitude”), but I think “gratitude” and “thankfulness” are still useful words. The contingency of being predated the human penchant for personifying existence and worshiping it, but our sense that we receive benefits to which we did not and cannot contribute arises from the fundamental truth of reality, that everything we know depends on something else—including our ability to know that we are dependent. Why not express gratitude and thankfulness, not vaguely directed to “the universe,” or our fundamentally false idea of the universe, but for the benefit to ourselves of expressing it at all?

Gregory Benford observes in his book Deep Time:

It is commonplace to note that the years flicker by faster as we age. Certainly a new year can have less impact when we have many more stacked behind us. I suspect the sameness of the later years also alters our reading of them. We settle into habits, and the days have fewer distinctions to mark their passing. We slide forward on skids greased by routine.

Little wonder, then, that we have a keener sense of the endless centuries behind us as our expected lifetimes approach a century. To a baby, a year is like a lifetime because it is his lifetime, so far. By age ten, clocks tick on at an apparent rate ten times faster than the baby’s sense; the next year is only a ten percent increase in his store of years. At fifty, time ticks on five times faster still. At a hundred, the differential rate is a hundred times the baby’s.

. . .

Imagine living to a thousand; then a year would have the impact of a few hours in a baby’s life.

Too much sameness, habit, and routine without distinction do make the time pass more quickly. Boredom is an excellent way to wipe out and waste enormous swaths of potentially memorable life. But I would rather have the slow differential of childhood, which gave me piles of vivid but inconsequential memories, over the accelerating clip of adult life, where I seem to be paying so little attention that time passes before I bother to make memories at all. Time without memory might as well be nonexistence or death. Socrates said that the unexamined life is not worth living, while Jesus observed that the “kingdom of heaven” is only available to those who change and become like children, and Buddhists urge mindfulness on the path to liberation and enlightenment.

So when my wife, this morning in bed, reminded me that today we have been married for one month, it occurred to me that here is an occasion to think about time and memory. We have memories of a month—from our wedding, through the week of our honeymoon, in struggling to return to our jobs, and then? The sameness and habit and routine of work challenges my ability to examine my life, to be like a child, and remain mindful, to make memories. But the months will pass, become years, and there is no going backward.

People say, “You are only as old as you feel.” And I think feeling old must mean feeling that time is passing too quickly. But time is always the same and we are what change. My wife and I are glad to have a month of married memories. I hope we make the next month even more alive than the last.

John Grisham, with a new book of short stories out, is talking about what it was like to practice law back when he actually did:

As a small-town lawyer, you don’t meet people who are living happy, productive lives with no problems. Everybody who walks in the door has got a problem. Most of the people who walk in the door don’t have a lot of money. They’re injured, they’re going through a divorce, they’re going through a bankruptcy. Something bad’s happened to them and they deal you the cards and you’ve got to help them as their lawyer.

Sounds like my practice. Seeing the same kinds of things over and over makes it difficult to avoid constant cynicism. We rarely see happy people who are in control of their lives. More often, we see desperate people who are struggling to take control. And sometimes they want control of more than just their own lives. Far too often, they want to use the court or law not as a shield or a solution, but as a weapon, to punish someone else.

Before I saw law practice firsthand, I was skeptical of Abraham Lincoln’s observation that “there will still be business enough” if you discourage litigation and persuade people to compromise. But now that I have some experience, I see that persuading people to compromise is even harder than persuading a court to rule in your favor. And many people appear to believe that an attorney that discourages litigation or persuades clients to compromise is not “fighting for them.”

Sometimes an attorney will see a losing battle where the client will see a winning one, or vice versa. Matching expectations can be extraordinarily difficult, especially where one person in the relationship—either the client or the attorney—is optimistic about the prospects of success, but the other is pessimistic. The flood waters rise even higher when one attorney pessimistic about success is pressed into service by an optimistic client and deployed against another attorney who is optimistic that the other side will lose. Sometimes I think litigation is just the result of poorly-matched relationships all around, from the parties on out.

There will be business enough. People are just too good at getting themselves embroiled in dysfunctional relationships while simultaneously feeling entitled to the benefits of functional relationships, and lawyers (and psychologists and other professional social engineers) are too good at coming up with reasons why everybody deserves “relief” or to be “made whole”—which is just lawyerspeak for “your problem is somebody else’s fault.”

But without the constant roiling of the legal waters by people who are not living happy, productive lives with no problems, our laws would never be refreshed to match the expectations of our times, which are usually articulated by people who control what a happy, productive life with no problems is supposed to look like. The whole thing is a crazy, dangerous dance, but it would be hard to imagine life without it—unless everybody was medicated and all aspects of our lives were administered by watchful and, we would hope, benign overlords. Lawyers, unfortunately, find themselves hurled, again and again, to the middle of the dance where they are yanked in every direction while trying to hold things together—and wondering if anybody really needs them anyway.

It’s easy to blame someone or something for the crazy, dangerous dance, so people do: government, politicians, irresponsibility, godlessness, poverty, lack of education, trial attorneys, activist judges. Whatever pops into your head, just blurt it out with enough righteous indignation and refuse to back down—you might get a talk radio show.

But we’re talking about how to regulate human society, which means, in our milieu, the “rule of law.” And since we apparently cannot abide not blaming anyone for our problems, and since complaining about the adverse effects of power differentials is enormously fashionable among people who claim to think about these problems, the question of whether human society can be regulated without the ebb and flow of satisfied and dissatisfied people in trying to regulate human society according to their factional sense of the “norm,” does not come up. Here in America, we just assume, first, that somebody is in charge of making our lives miserable, and second, that everybody else’s job is making sure that somebody else is put in charge as soon as possible.

We seem to like it that way, with a never-ending parade of “reform.” Do lawyers play both sides of the fight? Yes, we do. Would the fight keep going if we weren’t in it? Maybe not, for a time, until a catastrophic revolution reignites the perpetual controversy. But the underlying conflicts will never go away: people will always disagree and they will always call others to their assistance in fighting out their differences. Those others are the lawyers.

Over at Law.com, they’ve posted an article from The Connecticut Law Tribune about solo and small firm attorneys that are extending their practice into unfamiliar areas to keep their income going.

You might find them in line at the court clerk’s office, asking questions that you would expect from a rookie attorney. Or maybe wandering courthouse hallways not entirely sure where to go.

Sure, those people may be interns or recent law school grads. But they also might be experienced, but cash-strapped real estate attorneys who have decided to dip their toes into criminal or family law.

Are all these quasi-newbies representing their clients as well as their colleagues more seasoned in these areas of law?

“They’re just doing a job in an area they wouldn’t normally practice,” said [Bridgeport judge Frank Ianotti]. “Usually a good lawyer is a good lawyer.”

That might be a comforting idea, but dipping your toes in a strange new realm of practice is still terrifying. I suppose the trick is just being “a good lawyer”: be civil with judges, attorneys, and everyone else you deal with; advise caution for your clients; ask for advise when you need it; research like crazy—read all the codes, rules, regulations, and standing orders you can find.

Writes Neal Gabler:

The hoariest and most oft-repeated cliche in American politics may be that America is the greatest country in the world. Every politician, Democrat and Republican, seems duty bound to pander to this idea of American exceptionalism, and woe unto him who hints otherwise. This country is “the last, best hope of mankind,’’ or the “shining city on the hill,’’ or the “great social experiment.’’ As if this weren’t enough, Jimmy Carter upped the fawning ante 30 years ago by uttering arguably the most damning words in modern American politics. He called for a “government as good as the American people,’’ thus taking national greatness and investing it in each and every one of us.

. . .

There is nothing wrong with self-satisfaction or national pride. But the incessant trumpeting of our national superiority to every other country in the world is more than just off-putting and insulting. It is infantile, like the vaunting of a schoolyard bully that his Dad is better than your Dad.

Yes, exactly. Read the rest of the piece and get your attitude in check.

Mary and I were married yesterday morning, October 10, 2009, at The Downtown Club in Fresno. We were registered at Williams-Sonoma and Vonda’s Gifts. The ladies at Vonda’s were especially helpful, both to us and to all of our friends and family who went there to choose a gift.

Mary wore a beautiful eggshell-colored dress by Calvin Klein and the maid of honor, her daughter, wore a burgundy dress by J. Crew. Mary carried a bouquet of red roses, and her daughter carried white flowers and greenery, both arranged by San Roque Florist. Their makeup and nails were done by Spectrum Salon & Day Spa.

The maid of honor entered to “Edelweiss” performed by Andre Rieu and Mary was escorted down the aisle by her son to “Prince of Denmark’s March” (commonly known as “Trumpet Voluntary”). Federal Magistrate Judge Sandra Snyder officiated and offered some excellent wisdom and advice. We exchanged unique vows that we had prepared separately. We exited to “You’re My Best Friend” by Queen.

After the ceremony, our guests socialized and enjoyed an assortment of savory hors d’oeuvres prepared by the catering staff at the Club. My best man, Bryce Hatakeyama, made a great toast and made me sound much more impressive than I actually am. Several other friends and family also toasted us over a glass of champagne and I was much embarrassed by their unduly kind words. Our delicious cake was prepared by Eddie’s Bakery: a white cake infused with Grand Marnier orange liqueur, with a champagne custard filling. (The top layer, which we removed and took with us on the honeymoon, was a chocolate cake infused with framboise, with a raspberry filling.)

After mingling with our guests, we retreated to one of our favorite places, the fabulous Monterey Plaza Hotel & Spa for six nights.

Hell hath no fury like a reproachful footnote from an appellate court:

Thomas’s briefing on appeal, in particular, his reply brief, is full of the vitriol that is anathema to civil and professional conduct essential to the resolution of family law disputes. No less than eight times does Thomas’s counsel accuse Elizabeth’s counsel of unprofessional conduct, mainly because Thomas’s counsel disagrees with the way in which Elizabeth‟s counsel interprets the law or the facts. Thomas’s counsel also accuses the trial judge of bias and refers to the judge in a condescending manner. Arguing against Elizabeth’s contention of error in her appeal, Thomas’s brief states that the judge “didn’t get it all wrong.” (Original italics and underscoring.)

“Because of the complex and sensitive nature of marriage dissolution proceedings, it is in the best interests of both parties to resolve all issues expediently and congenially . . . .” (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 58.)

Ouch. That is footnote 2 from Marriage of Knowles (PDF). See page four. Follow the link if you want to see the identity of the offending attorney. See page one; attorney for appellant. And let that be a lesson to us all.

After leaping into an online forum yesterday and unwittingly short-circuiting  someone else’s Socratic dialogue, I mentioned in the aftermath on Twitter that law school soured me on the Socratic method. Mark, the unfortunate victim of my zeal, said he would be interested in hearing more about that. So I promised a blog post. Here it is.

For those unfamiliar with the art of Socratic dialogue, I’ll not go into the detailed background here (try the excellent Wikipedia article instead). But conversing like Socrates usually means that one party to the conversation uses a series of questions to force the other into clarity (the better to attack their views), contradiction (in which case their views crumble under their own weight), or illumination (after which no further persuasion is necessary). After suffering through Socratic interlocution by several law school professors, I developed five objections to the Socratic method.

People who use the Socratic method, including Socrates himself, often seem disingenuous. Socrates famously observed that he was wise because he knew that he knew nothing. So he asked questions. That’s great, Socrates; I think you’re lying. And I think questioners who pattern themselves after Socrates are employing the device of feigned ignorance to drive their questioning. People who use the Socratic method, whether law professors or otherwise, are rarely just looking for general illumination by way of dialectic; they are not really using ignorance as a springboard to knowledge. Instead they often have a particular outcome in mind and they are using a series of questions to push the other person toward it. Law students would say they are “hiding the ball.” Instead, let’s play ball.

Especially when they are disingenuous, Socratic interlocutors seem arrogant. Not all people who use the Socratic method are disingenuous, but I think most of them are. And it strikes me as rather arrogant. While pretending to ask innocent questions, the subtext of the interlocutor is something like this: “I understand this concept, but you do not and cannot yet, until you jump through all the hoops I set before you, leading you step by step to my position, where you will finally know what I know.” Really? Why not just tell me what you’re thinking and then see if I need further clarification? Why assume that I’m a fool? Or, if you know that I am a fool, why not just lay it bare immediately, instead of letting me believe otherwise and talking down to me in the meantime?

The didactic value of the Socratic method is questionable. What do people at the receiving end of the Socratic method really learn? Taking them by the nose through a series of questions, especially when the questioner is not extremely skilled at using the method, only reinforces a particular way of reaching a given conclusion. Any tendency to take another route, think creatively, or beat a path to a better conclusion, will be headed off by the questioner. Some Socratic questioners allow creative thinking, so that the conclusion is something other than what they desired, but in my experience, they are in a tiny minority. So the Socratic method is usually only good for reinforcing the views of the questioner.

Going round and round with the Socratic method can be a waste of time. Sometimes people launch into the Socratic method when they perceive that someone else has a problematic view, and sometimes that perception is wrong. After many, many questions, the Socratic interlocutor may discover that the victim was illuminated all along, but believed the questioner was talking about something else. This is especially likely when the person using the Socratic method is not very skilled at using it. There are other, quicker methods for rooting out real disagreements and bringing them to the forefront of the discussion. For example, restating the other party’s position in your own words and ensuring that you have agreed-upon definitions for key terms.

The Socratic method works better as a literary device than as a practical tool. We learned the Socratic method by reading Plato, who wrote the Socratic dialogues to illustrate the teachings of Socrates. And those dialogues make excellent reading because they present tricky ideas in an engaging way: by putting them into the mouths of two people who are arguing. And everybody loves a good argument. Maybe Socrates’ real-life victims learned something, too, but the dialogues are not transcripts. They convey that Socrates asked questions and they illustrate his famous observation that true wisdom means knowing the limits of your own knowledge, but ultimately, as they appear in the written dialogues, they are a literary device. They present opposing ideas without resorting to the conceit of pretending to know others’ minds. But for the reasons articulated above, I am doubtful about the practical value of the Socratic method for participants in Socratic dialogues.

When people want to discuss controversial topics, explain their ideas to those who may disagree, or persuade others to adopt a different view, I much prefer a direct path to the controversy. Lay it out. Be honest, be polite, say what you are thinking, and focus on the substance of the conversation. Don’t waste time. Be frank about your ignorance, recognize, as Socrates did, that you do not know everything, but don’t make conspicuously curious ignorance into your modus operandi when you really do know something. Concede the points that ought to be conceded, hold the points that ought to be held, and get to the points that ought to be gotten to.