Excerpts from Three Essays

Forty years ago Harcourt Brace Jovanovich published a book of my essays titled.    Legal-Ease – Fresh Insights into Lawyering. I’d previously written two books, Anatomy of a Merger and Lawyering, that focused on the useful qualities lawyers ought to possess. It became clear to me then that most of what lawyers actually do for a living consists of various functions – thinking, communicating, dealing with people, making decisions – that have recognizable counterparts in life generally.

  So I wrote a series of monthly columns in the early ‘80’s for the periodical Legal Times that dealt with this broader outlook. About 30 of these columns were contained in the 1984 Legal-Ease book, together with insightful illustrations by Joe Azar.

             I’ve recently revisited the book and selected three of the essays that haven’t otherwise been widely distributed since publication: Gaining Perspective, Simple, but not necessarily Simpler, and Analogies Gone Astray. I combined the three pieces, stripped out sections that were more narrowly directed to lawyers (although keeping certain material pertinent to both lawyers and non-lawyers), and hope you’ll find interest in the thoughts expressed.

 *    *    *

 GAINING PERSPECTIVE

            My hobby is playing the piano, which I was doing recently at a party. A small group had gathered around to listen and sing. I trotted out some Gershwin, a few show tunes, then a James Taylor number – and suddenly, for no reason except that it popped into my head, I launched into “God Bless America.” There was some snickering; one or two people sang along; but a few others, I noticed, wandered away from the vicinity of the piano.

             I recalled the incident when I read the beginning lines of Avery Corman’s novel, “The Old Neighborhood.” Corman, who grew up in New York City at the same time I did, put it this way:

  “To be ten years old in 1944 was to know one’s place in the war effort, to collect scrap paper for the scrap paper drive, save Minuteman war stamps, and memorize the silhouettes of enemy aircraft, then crouch on the roof of a building at twilight hoping to spot a Stuka before it could strafe the neighborhood.”

             There was, in those years, a special feeling, in Corman’s words, that we “had been through something together . . . a sense of community.” That’s why, corny as it may seem, I still get a chill singing Irving Berlin’s verse (“While the storm clouds gather, far across the sea . . .”) And picturing a boyish Frank Sinatra, in the short film “The House I Live In” (which we all saw a dozen times; it must have been obligatory at 1945 double features, just before the cartoon), crooning, “All races, all religions, that’s America to me.” And that leads to “Comin in on a Wing and a Prayer,” at which point I’m completely hooked.

             The snickerers and those who walked away don’t understand this about me; they don’t appreciate my perspective. Just as I often fail to appreciate the perspective of others.

             My mother, for instance. Things were pretty rough for a young married during the Depression. She recalls trips to the filling station for one gallon of gas – all the money she had in her purse. When she refuses to take a taxi today – and I get angry at the thought of her being jostled on an interminable bus ride – I should (but often don’t) evaluate her reaction against that backdrop.

             You also need perspective on yourself. It’s vital to gain enough distance from the emotions of the moment to appreciate what’s really going on.

             “Perspective,” says Webster (after describing various architectural and optical phenomenona) is “the capacity to view things in their true relations or relative importance.” This piece is about two kinds of perspective – on ourselves and on others.

Perspective on Ourselves

             Let’s examine ourselves first. Do you assume your current perspective is accurate? Forget it; we’re all like blind men touching an elephant.

             Take my own case. How absurd the NROTC seemed in college; what self-pity I indulged in during three frigid years on a Navy icebreaker. But in retrospect, this experience formed an insulation between college and career, enabling me to enjoy college thoroughly and defer all career decisions to the quietude of my stateroom. Contrast this with today’s undergraduate, facing tremendous pressure in terms of graduate school or landing a good job; how can he relax in the local cinema or pub?

             I never even considered law as a career until I was in the Navy. By chance, I had gotten involved defending AWOL seamen in court martial proceedings. It was an interesting break from the deadly routine; all the learning was in a single book (I figured law couldn’t be too difficult); and applying to law school postponed the ultimate career decision for three more years. So, on that flimsy basis, I backed into the rest of my life.

             Law school was an excruciating ordeal at the time. I’m finally coming around to appreciate it, at least in terms of force-feeding the importance of hard work and willpower. I chafed in the undynamic atmosphere of my first law firm; today, I recognize the experience as a pleasant transitional idyll during the early years of marriage, which served to position me for the right opportunity when it came along.

             In Mr. Webster’s words, it’s taken me rather a long while “to view things in their true relations.” By the way, it’s possible to wait too long, to get too far away. For instance, I would suppose it’s tough for someone at age 75 to remember what it was really like being 22.

             If you’re not happy with the way you’ve been acting or reacting or handling a situation, is there some way – short of awaiting the passage of time – to get a fresh perspective? Perhaps a vacation, away from the pressures and emotions of the moment. (The problem with a vacation , though, is that we feel so delighted to be out of the rut, even momentarily, that we’re reluctant to reflect on what we were escaping.)

             If you’re like me, once you get enough perspective on a situation to realize you made a mistake, you can be very tough on yourself. It all seems so clear now; “How could I have been so stupid then?” We tend to overlook the lack of perspective that contributed to the mistake in the first instance. Instead, we bestow upon ourselves at the time of decision the same perspicacity we’ve only gained with the passage of time, “Hindsight is always 20-20” – a maxim usually relevant to second-guessing others – applies equally to ourselves. A little self-forgiveness would be more appropriate.

Perspective on Others

             Unlike perspective on yourself, which is attained through experience and the passage of time, your perspective on others has to happen now; if you wait, it may be too late. “There was never a sign,” said the man, bemoaning his wife’s sudden call for divorce; but think of all the signs she must have posted over the years.

             Recently, I came across a letter I’d written to my father one summer during college. In those days, I had a Naval ROTC scholarship, which required me to spend the summer on a battleship. We “midshipmen” were treated as lowlier than the lowest seaman apprentice, and I hated every scurvy moment of it. Evidently, my father had characterized this experience as one which he wished he could have had as a youth. My reply, from the claustrophobic bowels of the ship, dripped in sarcasm and youthful petulance – you know, the old “if-you-think-this-is-to-great-an-experience-how-about-switching-places” routine.

             Rereading my words, I realized that I was then only a few years older than my oldest son is now; and then, whammo! – it hit me that my father, at the time he received the letter, was younger than I am today! That’s always a tough concept to manage – being older than your father was at a time when he seemed so. . . old.

             You can guess what my next thought was. Have I been pulling the same number on my kids as he pulled on me – labelling thankless chores as “good experience”? Worse than that, am I omniscient and avuncular – Polonius in a cardigan? Oh, no, it can’t be – and then I recall one or the other of the boys chiding me, after I’ve delivered some earnest injunction, “Hey, dad, give me a break . . . .” – and I realize that it could be so.

             It takes some work to understand another’s perspective. “I just don’t know where he’s coming from," is a common plaint. Well, if you don’t know, find out. Background facts are essential. Was she recently widowed? Did he have a strict father? To appreciate what motivates the other person, put yourself in his position; try to assess what he really wants. You’ll begin to understand that what he says may not translate to what he means – things can’t necessarily be taken at face value.

             This technique is absolutely basic in negotiating. Yet it’s amazing to me how many lawyers – who should be so skilled in this area – neglect to size up their adversary, to peer inside his mind and discover what’s really troubling him. The key to resolving impasse is the ability to divide up a seemingly indivisible issue, so that you satisfy your adversary’s real concerns (which are generally narrower than those he has expressed) while at the same time protecting your client’s essential interests (which are generally narrower than those you’ve previously advanced). To do this well requires some adroit mind-reading with respect to both your client and your adversary.

 *    *    *

 SIMPLE, BUT NOT NECESSARILY SIMPLER

            While struggling to find a good topic for my column one night, I fell asleep fitfully. Suddenly, Albert Einstein appeared to me in a dream.

            “Dr. Einstein,” I cried. “You’ve come in my time of need. Utter one of your marvelous aphorisms, and I’ll construct a column around it.”

             Einstein hesitated. A shy man by nature, he seemed uncertain whether I was putting him on.

             “Don’t be bashful, sir. I respect you enormously and would be most appreciative of your help.”

             The great man relaxed. “Maybe you would like this one: ‘God is subtle, but Got is not mischievous.’”

             “Oh, wow,” I exclaimed. “That’s really something – it explains so much – but frankly, religion and philosophy and the deeper questions aren’t my bag. How about something a little more down to earth?”

             “All right,” he said, “Here’s one of my favorites: ‘Make everything as simple as possible, but not simpler.’”

             It literally took my breath away. “Fantastic! I love it. So profound – and such a broad applicability.”

             “It really gets you, huh?” His frizzy locks rippled in the breeze.

             “Absolutely.”

             “O.K. Now I’ve got to go; you interrupted me in the middle of a Pac-Man tournament . . . .”

             Einstein faded from sight, and I woke with my topic.

 Cultivate Simplicity

             The virtues of simplicity are by no means a recent discovery. From St. Jerome (“I have revered always not crude verbosity, but holy simplicity”) and Lao-tzu (“Embrace simplicity”) to Charles Lamb addressing his sometime garrulous colleague (“Cultivate simplicity, Coleridge”), the message is of long standing. You can hear it in a Richard Rodgers melody, with nary a wasted note; or listen to Paul Simon’s paean to the “one trick pony:.” We extol the virtue in physical terms (“Give me a look, give me a face, that makes simplicity a grace” said Ben Jonson, contrasting “the adulteries of art; they strike mine eyes, but not my heart”); and it’s even prized in less appetizing settings (“It was beautiful and simple,” noted O. Henry, “as all truly great swindles are”).

             We live in a world that cultivates complexity, we practice a profession that elevates it to high art. Too many lawyers spin webs of long winded circumlocution – their thinking fuzzy, never coming to the point. I sit in meetings with other attorneys, distressed by soporific speakers (who take so much time to say so little) and listless listeners alike.

             The irresistible urge to make things more complicated gives the legal profession a bad name. The client – upset, confused, worried – comes to his lawyer for succor and advice; what he gets leaves him even more at sea.

             Just as a good lawyer alerts his client to a troublesome intricacy lurking in what seems straightforward, so he should cut through the chaff of a complex situation – helping the client to understand the key elements in order to make an informed decision.

             I realize this is not always easy to accomplish. Legal and business situations are complex, with many strands and sometimes infinite ramifications. The discipline is similar to boiling down a meandering six page letter into two concise sheets. It take extra work. But the exercise isn’t solely for the client’s benefit; if the situation seems too complicated, then you probably don’t have it under complete control. Simplification helps the substance (as well as the level of communication) of your advice.

  Distilling the Essence

             As with so much else in the law, the key here is to focus on what’s truly significant – to sort out the material concerns with the peripheral – and let them organize your presentation. The significant breakthroughs in analyzing a situation invariably represent a simple rearrangement of how people have been viewing the problem – a breaking of the mold, so to speak – that leaves members of the group with the feeling “Why didn’t I think of that?”

            In writing, it’s often difficult to achieve simplicity at the outset; since you need the whole picture before deciding what’s material, crispness is usually the product of rigorous rewriting and editing. In communicating orally, however, one hasn’t that luxury. If your modus operandi is to wade through the complexity before attempting to boil it down, you may well have lost your audience along the way.

             So, in making an oral report to a client or a senior, it’s critical to think before you speak – to interpret and distill the essence of what you’ve learned and to organize your remarks in some coherent fashion. If you’re relating the results of a factual investigation, try to classify the facts into helpful patterns rather than serving them up in an unvarnished state.

             Keep your report unencumbered by minor details. Particularly with a client, give the bottom line of your legal conclusion; if he wants your reasoning, he’ll ask for it. (If you want to present your rationale to protect yourself – to let him know what you relied on in reaching your conclusion – try supplying the client with a short memo on the subject immediately following your oral report).

             The greatest enemies of succinctness are the fear of leaving something out and the desire to display your breadth of subject matter grasp – remnants of insecurity you should shed as you gain in self-confidence.

  ‘But Not Simpler’

             So much for “as simple as possible.” The problem of “but not simpler” remained. What exactly did Einstein have in mind? I pondered to no avail. Finally, I slept, invoking his presence again. He appeared, in his usual disheveled state.

             “Albert,: I exclaimed. “Good so see you again. How did you make out in the Pac-Man tournament?

            “Third place.”

             “But who could possibly outperform you . . . .”

            “Galileo came in first, Roosevelt second – tough competitors.”

             “Albert, I’m having trouble with the ‘but not simpler’ caveat to your proposition. Does it have some deep meaning? Give me an example.”

             “You remember perhaps my pet equation, E=MC2?”

            “Of course; we all do. The world owes you a great debt.”

             “Profound yet simple – but not too simple. If, for example. I had neglected to square the ‘C’ . . . .”

             “I got it. Thanks again, old buddy.”

            But I still wasn’t positive I’d latched onto something useful . . . . What was the real applicability to lawyers of Einstein’s caveat?

             I won’t guarantee this hypothesis, but I think “not simpler” has to do with knowing your audience. When everyone shares your frame of reference, your presentation can skip over a great deal. (The classic illustration here is the old story about the prisoners who had numbered their jokes and could evoke guffaws by simply calling out “34” or “97.”) but such shared viewpoints aren’t always present – particularly between lawyer and client – and the skilled communicator understands the need to fill in the gaps.

             Listen to a mediocre story-teller begin to relate an anecdote to someone who wasn’t there when it happened and doesn’t know the characters. He may go too far back, loading down the tale with so many background facts that the listener is in a comatose state before the story ever gets going. Or he may leap right into the narrative, without providing the listener sufficient context of locale, situation and personality to appreciate the full implications of what’s being related. By contrast, the effective story-teller has a knack for selecting just the right amount of background detail – particularly those facts which will become important as the tale unfolds – to make the story meaningful, without enlarging it out of proposition to its actual significance.

             Just as you strive to delete the chaff, try to appreciate  what must be retrained in order to make your report meaningful. This requires sensitivity and patience; smothering your natural arrogance and turning off the dazzle; perhaps, even some suffering of fools. But it’s well worth it.

             That made me feel better, and I wanted to show the great man that I understood – and that even he sometimes went too far. So I summoned him back the next night – popping the question at the outset:

             “By the way, Albie, just who was it that placed second at Pac Man. Franklin or Theodore?

 *    *    *

 ANALOGIES GONE ASTRAY

            Some time back, a friend suggested we eat Sunday brunch at a certain restaurant she favors, which features an outdoor garden. Upon our arrival, the maître d’ indicated there was a 15-minute wait for outdoor tables, although we could have a table inside immediately. My companion wanted to wait, and I concurred. After about 20 minutes, we were seated at a table in the garden.

             My friend seemed uncomfortable. “What’s the problem?” I asked.

            “Oh, nothing” she replied. But clearly, she wasn’t relaxed. After a few moments, I repeated the query.

            “Well,” she said, “it’s a little cold out here, and I’m not wearing a jacket like you.”

            “Okay,” I said, “Let’s go inside.”

             She paused, uncertain about the decision. “All right.” She said finally, and we shifted to a comfortable table in the attractive indoor dining room.

             “You know,” I remarked later. “I think the reason you hesitated about moving indoors, even though you were obviously uncomfortable, was that we had sacrificed for that table – waiting 20 minutes when we could have already downed a Bloody Mary and appetizer inside. You just didn’t want to concede that our sacrifice had been in vain.”

             “That’s true,” she said. “And the other reason I hesitated was that all morning I’d been visualizing us sitting outdoors in the garden – so I was reluctant to dash that vision, even though I was cold.”

             “Then there’s also the force of inertia,” I added. “Our bodies had come to rest in the garden, and moving just seemed too bothersome.”

             I recalled other occasions when companions and I had simply endured unpleasant accommodations of one sort or another. Then my mind began to race, groping for some broader significance in this experience.

             “By God,” I exclaimed, “that’s it! Sacrifice, visualization, and inertia – the unholy threesome that regulate the whole shebang.” I warmed to the metaphor.

             “Take the practice of law. America is overrun with lawyers who are, so to speak, seated in a cold garden. They haven’t been able to grab the brass ring: they’re not having any fun. But, what the hell – they sacrificed through three years of law school and an interminable period of apprenticeship; they’re visualized themselves as important partners of big law firms, dispensing wise counsel; and now they’re corroded with inertia, unable to rise to their feet and signal for a table indoors.”

             “Don’t you think you’re carrying this a little too far?” ventured my companion.

             “No, no,” I replied. “Look, they’re stuck in jobs they don’t like, hoping things will improve – comparable to us staying in the garden, waiting for the sun to come out and take off the chill. Now, if it were to rain (for instance, if their firm went belly up), then maybe they’d be stirred into action. And, of course, there’s always a point of no return – in the garden, when the meal is served; at the firm, once they make partner.”

             “So, what are you suggesting – that those dissatisfied with their profession should leave it?” my friend asked, incredulously.

             “Well, look how easy it was for us to move to this perfectly acceptable table inside.”

             “Next thing I know, you’ll be claiming this is also applicable to marriage and other relationships –”

            “Sure, and to all those uncoordinated people who took up tennis as a sport several years ago....”

The Logical Error

             Let’s mercifully depart this scene, rejoining me later in the day when my ardor had cooled and I realized the analogy of the garden did not resolve all of life’s problems. This got me thinking about the nature of reasoning by analogy and how we – both as laymen and lawyers – misuse analogies daily.

             An analogy is an often complex comparison between different kinds of things, which can help our thinking by suggesting new hypotheses or generalizations otherwise overlooked. The difficulty occurs when we present the analogy to support a conclusion about the primary subject – in effect, when we argue by analogy.

            It amounts to an error of logic. As Monroe Beardsley points out in his book, “Thinking Straight” (Prentice-Hall, 1975), the pattern of analogical argument runs as follows:

             X has properties a, b, c.

            Y has properties a, b, c.

            X also has the further property p

                Therefore:

            Y has the property p.

             The inference is that if two categories have a number of properties in common, then if one has a further property, it’s likely the other will share that property. For example: organized crime is like an octopus in various respects; an octopus has a single brain; therefore, organized crime is directed by a single leader. It may be plausible, but it’s not a cogent form of proof. Since, by definition, an analogy compares fundamentally different objects, there must be quite a few properties the one has that the other lacks – so, no matter how many indicia we discover them sharing, sooner or later we’ll find others that they don’t have in common. And one of those may just be p.

             In my own case, I realized that while the garden was useful in identifying sacrifice, visualization, and inertia as frequent contributors to a rut, the facile solution of moving indoors never even came close to coping with the difficulties of making a career change – much less terminating a personal relationship or (God forbid!) forswearing tennis for racquetball.

             But the argument by analogy is with us constantly. And lawyers and judges are among the worst offenders. The Beardsley book quotes a judge, dissenting from the majority’s ruling that a book considered “revolting and disgusting” could not be banned for obscenity in that state.”   This is like saying that the court does not approve of a snake entering a nursery, but forbids anyone to build a fence around the nursery to keep the serpent out.” Come on, learned jurist – how simplistic can you get? Or does your viper bring arguable benefits to the nursery politic (a la “Lady Chatterley’s Lover”) while enjoying a full slew of constitutionally protected (though sometimes hard to define) civil liberties?

The Road to Validity

             But arguing by analogy can also be more insidious, less easy to take aim at. Listen to another example posed (but not analyzed) by the same author – quoting a famous lawyer to the effect that we, as lawyers, have done a poor education job in failing to convince the public that we shouldn’t be identified ideologically with our clients. Certainly, doctor’s aren’t; a doctor who treats a Communist for heart trouble wouldn’t be seen as sympathetic to Marxism. Nobody would criticize a clergyman who gave counsel to the worst sinner. But when a lawyer represents someone who has been condemned by society, people are shocked that he’s helping this degraded man.

             Plausible, isn’t it? And since most lawyers generally agree with the speaker’s position on the merits, we want the analogy to hold water. But does it? Let’s see.

             First of all, it’s clear that lawyers have many qualities in common with doctors and clergymen – we’re professionally trained, then licensed by responsible bodies; we hold ourselves out to the general public; we all treat problems, albeit of different sorts; and so forth. And it’s true that doctors and clergymen are rarely judged by the politics or morals of their patients and penitents. Should lawyers be entitled to the same presumption of non-involvement?

             I think the answer is yes, but not because of the analogy. In strictly logical terms, the analogy ultimately breaks down because lawyers differ from doctors and clergymen in so many ways that identification with the client is just one of the differences. For instance, it’s not the patient’s diseased organ that waves banners or commits crimes, so the doctor is further removed from the ideology than the lawyer defending the neo-Nazi for storm trooper-like illegal activities. And we want the cold-blooded killer to confess his sins before God – we just don’t want him to get off with a hung jury.

             But the argument by analogy can be recast into a valid deductive argument. According to Beardsley, what makes an analogical argument plausible is that there’s usually a hidden generalization lurking there; when we make that generalization explicit, the rest of the analogy can be thrown away. Now, the argument runs as follows:

             Y has property a.

            Everything that ahs property a also has property p.

               Therefore:

            Y has property p.

 And we can forget about properties b and c.

             In our example, the deductive argument would go something like this:

 Lawyers (doctors, ministers) function more effectively when they need not fear ideological identification with their clients.

[Society is best served when lawyers function effectively.]

   Therefore:

Lawyers should not be ideologically identified with their clients.

             Or the argument might be recast (with somewhat more complexity) in terms of professionals generally, with the lawyer constituting  one member of the class.

             Now, you don’t have to agree with the argument. You can question the premises: maybe some lawyers function best when they are identified with their clients; perhaps society would be better served without effective lawyers; and so on. But at least it’s something you can get hold  of. And the analogy did serve a purpose (as most apt analogies do), helping s find a generalization that connected one of the common characteristics with the inferred [bracketed] one.

             But you know what? I’m still glad we took that cozy inside table!