The Spirit of Moderation

August 16, 2019 § 2 Comments

From an address by Judge Learned Hand (1872-1961) at the proceedings of the 250th anniversary of the Supreme Judicial Court of Massachusetts, November, 1942:

And so, to sum up, I believe that for by far the greater part of their work it is a condition upon the success of our system that the judges should be independent; and I do not believe that their independence should be impaired because of their constitutional function. But the price of this immunity, I insist, is that they should not have the last word in those basic conflicts of “right and wrong — between whose endless jar justice resides.” You may ask what then will become of the fundamental principles of equity and fair play which our constitutions enshrine; and whether I seriously believe that unsupported they will serve merely as counsels of moderation. I do not think that anyone can say.

What will be left of these principles? I do not know whether they will serve only as counsels; but this much I do know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where the spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon its courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens — real and not the factitious product of propaganda — which recognizes their common fate and their common aspirations — in a word, which has faith in the sacredness of the individual. If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilization, delicate and easily overrun by our sinful human nature; we may even now be witnessing their uprooting and disappearance until in the progress of the ages their seeds can once more find some friendly soil. But I am satisfied that they must have the vigor within themselves to withstand the winds and weather of an indifferent world; and that it is idle to seek shelter for them in a courtroom. Men must take that temper and that faith with them into the field, into the market-place, into the factory, into the council-room, into their homes; they cannot be imposed; they must be lived.

Quoted in The Practical Cogitator, Charles P. Curtis, Jr. and Ferris Greenslet Eds., Houghton Mifflin 1962.

Note: The phrase “right and wrong — between whose endless jar justice resides” is from Shakespeare’s Troilus and Cressida: ““Force should be right; or rather, right and wrong, between whose endless jar justice resides, should lose their names, and so should justice too. Then everything includes itself in power, power into will, will into appetite;and appetite, an universal wolf, so doubly seconded with will and power, must make perforce an universal prey and at last eat up himself.”

To Die For

June 15, 2018 § 10 Comments

The suicides of Kate Spade and Anthony Bourdain last week are a reminder that the pain and agony that torment some to death often lie hidden beneath layers of camouflage that give the appearance of happiness, health, and well-being. We see celebrity and fame, and we imagine joy. We see success and wealth, and we infer inner peace. We see physical beauty and we assume health and healthy lifestyle. Appearances, as they say, do deceive.

It’s no secret that the law is a corrosive profession. The pressures and stress imposed by duty to client and court are enormous. Deadlines carry grievous consequences. Add to that the heavy responsibilities of family, overhead, and finances, and you have a toxic stew that can eat away at and destroy happiness.

Members of the legal profession (lawyers and judges) have a suicide rate 1.36 times greater than the general population.

When the stresses of the profession become overwhelming, it’s easy to feel isolated, to be haunted by the thoughts of failure, and to want an easy out before your weakness is exposed.

But here are three thoughts:

  1. Everyone is struggling; we just don’t see all that is beneath the surface. You are not the only one.
  2. Just because you are struggling does not make you a failure. And even if you do fail, that does not make you worthless.
  3. Silence, secrecy, and shame are seductive, but are destructive over time. Talk about what you are feeling with someone who cares and who will listen. Empathy is a powerful, healing balm. A kind word may enable you to take a first step toward the light.

Depression is a widespread phenomenon. No one is immune. There is effective treatment available for it.

And, finally, let me state the obvious: Suicide is never a tidy exit; it leaves in its wake a tidal wave of hurt, pain, sorrow, regret, and questions that can never be answered. I speak from experience.

Yes, the law is a corrosive profession. But it is not one to die for. If you’re feeling overwhelmed, seek help. Get help. Step back from the brink.

The Honor and Dignity of the Profession

April 3, 2018 § 6 Comments

Not long ago I was asked to say a few words to the Ole Miss Law students who were being sworn in for limited practice in the school’s legal clinics. Alas, I got carried away and said more than a few words, as some of us older lawyers are wont to do. I thought you might find some value in them as you toil about in your daily practice.

You may be asking yourself: Why all this folderol about taking an oath? Why don’t we just get on with it, roll up our sleeves and get to work? Well, I want to give you an idea about it.

When I entered the practice of law nearly 45 years ago, the law was known as a noble profession. A term often heard was that the law was an “honorable profession.” Since then the profession has suffered many bumps and bruises. No need to catalog them here. Misconduct and allegations of misconduct by members of the legal profession from the US Supreme Court to the level of sole country practitioner and everything in between have occurred with dismaying frequency.

Add to this that we are in a cynical era where notions like nobility and honor are openly questioned and even laughed at. So, does this mean that the law is no longer to be considered an honorable profession? Is the concept of honor to be set aside as outmoded and anachronistic?

To decide that we first have to understand what honor is.

One aspect of honor is esteem. We honor and exalt those whose merit makes them worthy of our due regard. Whether the law today still merits the respect and esteem of the public is a subject of debate and analysis beyond the scope of this little talk.

Rather, I would like to focus on the concept of the law as a rule in this nation that relies on the individual honor of its members of its profession and those who invoke it. The law as an honorable profession in the sense that its bedrock and very heartbeat is honor.

And what is honor? Pat Conroy said in The Lords of Discipline that, “I have never had to look up a definition of honor. I knew instinctively what it was. It is something I had the day I was born, and I never had to question where it came from or by what right it was mine. If I was stripped of my honor, I would choose death as certainly and unemotionally as I clean my shoes in the morning. Honor is the presence of God in man.”

Others have said that Honor is like the eye, which cannot suffer the least impurity without damage. It is a precious stone, the price of which is lessened by a single flaw. And this is not to say that honor is easily come by. It has been said that the price of honor can never be too dear, for it is the only thing whose value must ever increase with the price it has cost us.

We think of honor as incorporating Honesty, Fidelity, Candor, Selflessness, Truthfulness, and respect both for the rule of law and the personal dignity and worth of every person, friend and foe alike, with whom we come in contact. We think of an honorable person as one who has integrity, self respect, and dignity. The honorable person is never arrogant or crafty, never seeks an unfair advantage or to lord it over others, never deviates from the truth even when a lie would be to her or her client’s benefit.

Honor is at the very core of what a lawyer and judge must be. Lincoln said

There is a vague popular belief that lawyers are necessarily dishonest…the impression is common, almost universal. Let no young person choosing the law for a calling for a moment yield to the popular belief—resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.

If you will read the Canons of Professional Conduct – our ethical rules – every one is based on the concept of personal honor and honesty.

The founders of our republic recognized the vital importance of honor. In the very last phrase of the Declaration of Independence, they “mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” Not just honor, but sacred honor.

In the spirit of our founders lawyers and judges stand guard over and fight to protect individual rights and the Constitution that guarantees them. With the founders we stake our honor – our sacred honor – on that proposition. No other profession does, and no other group of citizens does, save the military and those who swear to preserve, protect, and defend the Constitution.

As for today’s rampant and unfortunate cynicism, C.S. Lewis noted that, “We laugh at honor and are shocked to find traitors in our midst.” Indeed, when we attack and debase the concept of honor, we should expect the vacuum to be filled with the dishonorable and dishonest. You can not scrap a virtue and not expect it to be replaced by a vice.

So that’s why in a few moments you are going to raise your hand and take an oath to represent your clinic clients well and to the best of your ability. To protect their interests and to submit your own interests to theirs. In other words, you are staking your honor on your pledge of fidelity to your client.

If you – or anyone in a legal setting – takes an oath with the intention of not backing it up with honor, then it means nothing, and the law is diminished by that act. The law and the rule of law rely exclusively on the personal honor of everyone who seeks to invoke it.

This small act, this oath, is only among the first of many hundreds, even thousands, that you will take or see being taken over the span of a career in the law. It’s easy to become jaded and complacent about it. But I urge you as you move toward your entry into the legal profession never to lose your personal honor, and never to allow the law to be dishonored.

So yes, this oath is a small thing and a bit of folderol. But it means something. It means a lot. It really, truly does. And I hope each of you believes and lives that along with the thousands of us who serve the law.

Is a Law Degree a Good Idea in the 21st Century?

March 19, 2018 § Leave a comment

Philip Thomas at Mississippi Litigation Review & Commentary emphatically raises some serious questions. You can read his take at this link.

Things Judges Wish They had Known Before They Took the Bench

February 9, 2018 § 1 Comment

The National Judicial College’s Case in Point Publication included a piece, “50 Things Judges Wish They had Known Before They Took the Bench.” I thought I would share some of these submitted by judges from around the country, including one from a Mississippi Chancery Judge; can you guess which quote, and from which judge (Hint: no, It was not I).

Before I became a judge I wish I had known …

“Your jokes become funnier, you can jump higher, and you are more interesting after you become a judge. But they aren’t, you can’t, and you aren’t. So don’t believe anything otherwise.”

“That some people will think their Google search is the same as your law degree.”

“That it would be incredibly isolating. Professionally and socially there are so many situations that require me to withdraw to avoid an ex parte contact or avoid what might be construed as an appearance of impropriety … So much of my work is sitting alone with a file and a computer writing opinions, and during hearings you sit alone listening, not talking. It is lonely work.”

“How many times litigants, whether pro se or represented by counsel, fail to provide basic facts necessary to make a proper decision.”

“That folks really would believe that my court would be just like Judge Judy’s.”

“How isolating the job would be. In a small town, the isolation is devastating.”

“Remember that when most parties leave your proceedings, they will probably not remember what you did or what you said — they will remember how you made them feel. Treat every party with courtesy and respect.”

“That the better the lawyers’ performance in the courtroom, the better the judge’s rulings Professionalism and competency are  crucial to a fair and judicious system. Yet when I first sat on the bench, I gave advocates too much credit. Now I know better. And now I rule better.”

“I wish I had known (in my earlier life as an attorney) how I sounded to the judge when making an argument. I’d have said less.”

 “Even if germane and on point, never — ever — use the term nudum pactum in a full courtroom.”

“I wish I’d known that certain legal terms and phrases like ‘co-equal’ and ‘shall be adequately funded’ seem to be used more like punch lines by many members of the other two branches of government.”

“Good intentions always come with a critic.”

“It’s better to do ahead and do good than to fear lack of authority.”

“Never, NEVER go on the bench with a full bladder.”

The Lawyer’s Duty

January 16, 2018 § 2 Comments

In the spirit of the new year, which is always a good time to reassess and reevaluate, I offer you MCA § 73-3-37, with which I am sure you are familiar, but perhaps would like to read anew:

It is the duty of attorneys:

(1) To support the constitution and laws of this state and of the United States;

(2) To maintain the respect due to courts of justice and judicial officers;

(3) To employ for the purpose of maintaining the causes confided to them, such means only as are consistent with truth, and never to seek to mislead by any artifice or false statement of the law;

(4) To maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients;

(5) To abstain from all offensive personalities, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which they are charged;

(6) To encourage neither the commencement nor continuance of an action or proceeding from any motives of passion or personal interest;

(7) Never to reject, for any consideration personal to themselves, the cause of the defenseless or oppressed.

Magnolia State Chalks up Another Milestone

April 24, 2017 § 4 Comments

Mississippi is unfortunately first among last-place finishes in many categories.

But the latest is a low even by our standards. The February bar examination results are in, and the pass rate was an abysmal 36%. You read that right — 36%. You can read Above the Law’s snarky post on this fiasco at the link.

For comparison, last February’s pass rate was 63%.

What exactly is up with this? Are the law schools doing a poor job preparing students? Have the grading criteria changed? Did someone decide we have too many lawyers and tried to turn off the spigot?

My class still had the diploma privilege when we graduated in the early 1970’s. That meant that graduation from the state-supported law school created a presumption that one was qualified to practice law. The privilege was abolished in the 1980’s, and every graduate from every law school afterward was required to pass the bar exam. I’m not sure that there’s been a major upswing in the qualification level of newly-graduated attorneys since that change.

Notwithstanding my presumed qualification, I took the Tennessee bar exam in 1974, even though my employer did not require it. I still remember opening that letter with shaking hands and the satisfaction I felt at passing. I can only imagine how it must crush one’s spirits to be one of the 64% who did not pass the February exam.

New Year’s Revolution

January 3, 2017 § 1 Comment

The new year. A time when one chapter is closed and another is opened, with 365 glorious blank pages on which you can write the next installment of your life. It’s a time when you can change the plot, add and subtract characters, and even make your hero (you) even more phenomenal.

Most people think in terms of New Year’s resolutions. Those are the seldom-kept self-promises that most people think will somehow turn their lives around.

Why not think instead in terms of a New Year’s Revolution. Declare your independence from some of the old ways of doing things and adopt a new constitution that spells out better, more effective ways.

Here is a handful, just to get you started:

  • Be more efficient. Stop putting everything off until you have an insurmountable mountain of work deadlines all coming due at the same time, usually when you can least afford to deflect attention from even more important tasks. Delegate non-essential and repetitive tasks to your staff. Implement  a file diary system and follow it diligently. Remember that the only way to eat an elephant is one spoonful at a time. Likewise, you will find your life easier if you break complex tasks down to their component parts, address the parts in order of importance, and let your staff help you. That does not mean that you sacrifice attention to detail. A juggler who pays attention can keep may objects flying at once; a juggler who does not pay attention breaks a lot of plates and loses a lot of paying customers.
  • Keep up with your probate practice. Make it your goal in 2017 to be one of those attorneys who file inventories and accountings on time and correctly, who keep up with fiduciaries and wards, and who never let things spin out of control. It takes some attention and the will to create workable systems to manage a probate practice, but it can be done with some effort. It’s not rocket science. Look around you; some of the most ineffective lawyers in other areas somehow manage to stay on top of their probate matters, while even brilliant lawyers get summoned to show cause for not keeping theirs in line. All it takes is the determination to come up with a systematic approach, and then to stick to it.
  • Make time for your life. The law is not your life; it’s only a part of your life. If you are being smothered by the demands of your caseload, you probably (1) are not being efficient (see above); or (2) are not doing a good job deciding which cases to accept and which to turn away, so you are overloaded. You need to have leisure time to share with family and friends, to hunt and fish, or take a walk, or work out, or read a good book, or listen to music, or go to a movie.
  • Be more professional. The new year is a perfect opportunity to evaluate your professionalism. Ask yourself whether your pleadings and other filings look like they were prepared by a top-notch lawyer, or were slopped together by a hobo. Ask yourself whether the way you greet and interact with your clients reflects sincerity, knowledge, and concern for the client’s best interest, or impatience, sloppiness, and overriding concern for fees. Ask yourself whether your interaction with judges, clerks and courtroom staff is courteous and empathetic, or whether you come across as an arrogant, demanding jackass. Ask yourself whether you treat opposing counsel and party with respect and professional courtesy, or whether you treat them like an enemy to be destroyed. The positives can be polished and improved on. The negatives need to be eliminated.
  • Be on time. If lack of punctuality is your vice, take the opportunity of the new year to change your ways. When a lawyer is late in my court, I take it that the lawyer is telling me and everyone else there that whatever she was doing when docket call or hearing started was far more important to her. Being late is being unprofessional. Clients recognize it as such, and so do the other lawyers. Judges certainly do, and unprofessional lawyers find it much more difficult and time-consuming to have their matters concluded by the judge because the judge feels that she has to check to be sure that every i is dotted and every t is crossed. If you are chronically late, you need to come up with some strategies for being timely. Whenever you are late, whether for the first time or twentieth, you need to apologize to the judge and others who were inconvenienced by your tardiness, and give a brief explanation of what held you up.

That’s a meager few, but if you can’t come up with some on your own, they are at least a starting point.

Oh, and every day is another start to the rest of the year. So if you fall short one day you can recover the next.

Every day is an opportunity to be a better person, spouse, parent, lawyer, friend.

Paying Attention

November 1, 2016 § 8 Comments

Has this ever happened to you? You have arrived at the head of the line at Wendy’s (or your customary fast-food joint):

You: I would like a small number one combo to go; hold the cheese and onions.

Wendy: Number one combo. Here or to go?

You: To go. And did you get the no cheese and onions?

Wendy: Number one combo. Large or small?

You: Uh, small. And no cheese and onions, right?

Wendy: You want no cheese and onions?

You: Right. No cheese and onions.

Wendy: Number one combo. No cheese and onions. Small. Here or to go?

[If you weren’t paying close attention, you might want to read through that again slowly]

When you get to your vehicle, odds are 3-1 that there is either cheese or onions, or both, on your burger. Happens all the time.

Not trying to pick on Wendy’s. Or fast-food joints in general. Or the people who work there. It’s just a cultural thing nowadays that people are used to getting their information in small, rapid snippets. They are accustomed to doing three or four things all at once, not doing any of them particularly accurately. They simply are not used at all to pausing to gather enough information and apply a cognitive process to it. That takes too much time and effort.

And our modern apparatuses facilitate this. I have sat at a table in a nice restaurant and observed all four people at a neighboring table studying their smart phones as if they were sacred idols. No conversation. No interaction. When the waiter asks if they are ready to order the scramble is on to pick something off the menu so they can get back to their devices. At home, how many of us spend our evenings staring at the tv screen, or dabbling on a laptop or tablet while the tv is going, or doing all of that and talking on the phone — all while someone else sits across the room doing the same? None of this is paying attention, by the way; it’s scattering attention to render it completely ineffective.

This lack of attention thing seeps into your practice via your clients. You get something like this from your clients all the time: “You said the judge would definitely find my ex in contempt for not allowing me visitation” when you know good and well you never said any such thing. People don’t take time to hear and process.

Oh, and you and your office staff are not immune. You proofread discovery while answering email while returning phone calls and giving directions to office staff. You can’t pay attention to one thing when your attention is divided four ways.

It seems to work so well in everyday life, though. People seem to survive and even thrive while juggling three different devices and information sources.

But what works in pop culture and even in day-to-day business does not necessarily work well at all in the law.

Not paying attention is a luxury in which no one in the law or the judiciary can afford to indulge. Too much is at stake. The law requires precision in language, in thought, and in writing. Poorly worded questioning will allow a slick witness to slither away from the truth, or, worse, will deprive you of a crucial point in the record for appeal. Your unthoughtful arguments will be picked apart by counsel opposite and the court. A sloppily drafted contract or PSA will wind your client back in court nine times out of ten.

Lawyers who have been here in the Far East of Mississippi can confirm that I don’t do telephone conferences except in the most extreme situations. That’s because if you are sitting in my court room or in my office I can observe whether you are paying attention and whether I am making contact with gray matter. Over the phone, I don’t know that; I don’t know that you aren’t practicing your putting, or texting, or working crossword puzzles, or playing Minecraft while I am instructing how I want the order drawn.

Paying attention may be our most essential survival skill. A wildebeest that does not pay attention, for example, gets to enjoy being a lion’s dinner. It certainly applies in the law. Pay attention: the life you save may be your own.

25 Reasons Why Lawyers Hate to Practice Law and Go Crazy

March 18, 2016 § 4 Comments

An interesting article at lawcrossing.com catalogs 25 reasons why the practice of law can be corrosive and eat away at your well-being. You can find it at this link.

Some of the reasons include: being accountable for so many small details; having to work constantly and compete with peers; exhaustion from the constant conflict; the stress; the very high cost for making mistakes in mundane matters; the pay is not enough; student loans.

If you don’t seek out and find oases of peace and contentment the practice of law will eat you alive.

An article in the Washington Post relates that the rate of lawyers who have “hazardous, harmful alcohol-dependent drinking” problems is 20.6%, while the rate for all Americans is only 6.8%.

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