Notes

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.