AN ESSAY
While the moment is fresh, I must write a few words about the monumental health care reform bill that passed Congress this week. It is really quite a surprising--and inspiring--development. I had to temper my usual cynicism when I realized that the United States actually took a serious step toward reforming its health insurance system. Although President Obama always said he wanted to change health care, I gradually lost faith that he could penetrate furious Republican resistance. But against all prognostications, he did penetrate the resistance. He may have won only by a small margin. Nonetheless, Obama's principled win over private health insurance companies is unprecedented in modern American history.
Still, I am not writing about the health care bill today per se. I am not going to exhaustively discuss its intricacies, loopholes or missed opportunities. True, it is not fundamental reform. It does not create a European-style "single-payer" government-run health insurance program that guarantees coverage to every citizen as a matter of right. Nonetheless, as President Obama noted, it is "major" reform. It regulates private health insurance companies in significant ways. It prevents them from refusing to cover people with "pre-existing medical conditions" (ie, "most people"). And it mandates that everyone obtain health insurance. Uninsured Americans (including me) will benefit because the legislation provides extremely low-priced coverage from a "high-risk, government-supported" insurance company. In other words, health care won't be free for uninsured people. But it will be close to it.
For almost a century, no President has achieved such meaningful reform to American health care. And it is not just the legislation's substance that bears mention. In my view, the most memorable thing about Obama's health care victory is the ethical manner in which he conducted himself throughout the debate.
Public faith in American politicians is virtually nonexistent. People expect them to lie, hoodwink, steal, gladhand and enrich themselves at public expense. They expect politicians to sacrifice all their principles to save their jobs. When a politician says something, the natural response is to assume that he will do the opposite. In short, most people think that ethics is completely foreign to Washington politics. Promises mean nothing. People expect politicians to break them as soon as the water gets hot. In a word, people are extremely cynical about politicians in America.
But then along came Obama. In 2008, he won a landslide victory by promising "change we can believe in." He seemed a breath of fresh air in the noxious political marshland, a man who did not seem ready to engage in backroom dealing or pork barreling. He talked about principles and truth. He was a "white knight;" he was an uncorrupted soul. Although cynical Americans always have a hard time dropping their natural suspicion about politicians, they did when they elected Obama. They really thought that Obama meant what he said. They thought he would hold to his promises. He promised to reform health care.
In 2009, President Obama began the push for health care reform. Despite his good intentions, mean-spirited Republican resistance undermined his popularity. As the year wore on--and as the economy continued to falter--even Democrats began to question whether Obama could get anything done. They wondered whether all his campaign promises had just been rhetorical fluff. Republicans caricatured Obama as a "law professor," a man who thought too much and did too little. Critics castigated him for being "too polite for Washington." They blamed him for giving too much deference to opposing arguments. In other words, he was too weak to survive Washington's ruthless, dog-eat-dog political atmosphere.
Yet President Obama stayed true to his heart. He did not turn into a conniving Washington technocrat. No, he stood by his promises. He swore to push through health reform no matter the political cost. He did not care whether his commitment to his word would cost him a second term. He said he would fight for health reform. So he kept fighting. And he did not become an ogre in the process, either. He retained his composed decorum, even as Republicans hyperventilated around him and spread outrageous horror stories about "Obamacare."
Obama's fidelity to his own word paid off this week. Despite all the tempests and scares in Congress over the past few months, both the House and Senate passed a substantial reform bill. Although every vote along the way split sharply down party lines, the reform effort pressed forward. Something larger was at work beyond mere politics. Obama's commitment to his word seemed to vault Congress past its stifling political slavishness. What was it? It was the power of ethics.
It is no surprise that Obama quoted Abraham Lincoln the day before the House voted on health care reform. Obama quoted: "I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have." Put another way, it is always more important to do right than it is to worry about your political future. And there are deeper rewards to be gained from ethical fulfillment than mere reelection. No words could have encapsulated Obama's extraordinary commitment to ethics in Washington more poignantly.
Abraham Lincoln is the most inspiring President in American history because he was the most ethical President. He took office as the Nation faced its single worst crisis. He then transformed a War for Union into a crusade to end slavery in the United States. He did this because slavery was simply "wrong" as an ethical matter. His decision was politically unpopular. Someone assassinated him for it. But he did it because it was the ethically right thing to do. Lincoln had no personal interest in freeing the slaves. Politically, it was unnecessary. Yet he did it because he did not just care about "winning." He cared about being "true" and "living up to the light he had." That meant following ethics in his heart, not the politics that raged outside him.
Almost no President has dared to jeopardize his political future to "do the right thing." While health reform may not be as significant as ending slavery in America, President Obama nonetheless followed in Lincoln's footsteps by committing himself to an unpopular cause and risking everything to realize it. That is inspiring. And it is almost shocking, because it contradicts the comfortable cynicism most people adopt when thinking about Washington politicians. After all, can you believe what you just heard? A President is willing to risk everything to reform health care because he promised to risk everything to reform health care? You mean he actually takes his word that seriously? Can't be!
But it is, and that's what is so moving about Obama's victory. It was not just a technical victory over unfairness in health care. It was a victory of ethics over politics. It was a victory of principle over expediency. Obama pushed health care because he said he would. That is almost unprecedented in modern American political history. And it is even more inspiring that he did not let the "turkeys get him down" along the way. He kept his composure. He maintained his respect and dignity. He remained a "law professor," no matter how much people ridiculed him for it.
He didn't just care about winning. Rather, he was "bound to be true." And suddenly I find myself with an anomaly: Ethics just prevailed in Washington. That makes it harder for me to scowl and wax cynical about America.
Now, I'm actually inclined to smile. I feel strangely justified today. I love it when ethical people prevail, even if just for a day.
As I have always said, there is more to life than winning games.
Showing posts with label Winning. Show all posts
Showing posts with label Winning. Show all posts
Wednesday, March 24, 2010
Monday, March 22, 2010
LAWYERS : WHAT'S IN A NAME? MORE THAN YOU THINK
AN ESSAY
Lawyers are always in the news. They like talking to the press. And the press likes talking about them. They always have something to say; lawyers are pretty glib. They like free advertising, too. So they are happy to speak up when cameras roll.
But no matter how much press lawyers get, it's usually bad. In most cases, news stories involving lawyers discuss their avarice, moral bankruptcy, hypocrisy or outright criminality. Most recently, for instance, several newspapers reported on the proposed settlement between New York City and 9/11 workers. Apparently, the lawyers in that case (it's a big class action suit) advised the 9/11 workers to settle for around $675 million. That would give the lawyers at least 33%, or $225 million. The 30,000 workers would get the rest. A judge rejected the proposal. The press described it like this: "Judge refuses to bow to greedy lawyers. Rejects 9/11 settlement."
People expect lawyers to be greedy in America. That's their reputation. That's what they do. They intervene in private disputes, work mysterious magic behind the velvet curtain then take their fee. That's just how it works. At the same time, people expect lawyers to break rules as often as they enforce them. Vulgar punners like to cross the word lawyer with "liar;" and the pun is not too far off the mark. When hearing about lawyers, people expect elusiveness, craftiness, dishonesty, theft and nasty-spiritedness. It's all part of the public image. It is no wonder that the public does not respect lawyers. Viewed in the abstract, they are a lousy bunch.
But it's all part of the trade. Lawyering is a lousy business. Government tries its utmost to cultivate respect for the law as a beneficial social construct designed to bring about good. Yet a quick brush with lawyers undermines any respect a citizen might have developed for the law. With lawyers, it's not about doing good. It's about winning. And if winning means subverting good--or even allowing evil to prevail--then so be it. That's business. After all, that's what the client wants. As law firms like to say: "We are result-oriented." How true: Lawyers get results for their clients, even if those results seem despicable to everyone else on earth. The word "result," after all, does not necessarily imply "good" or "ethical." Results depend on who's getting them. A good result for the labor baron is a bad result for the workers. A good result for the State is a bad result for the Defendant. A good result for the employer is a bad result for the employee.
Lawyers sell results. They get them however they can. That is why people don't respect lawyers; they are crass partisans who zealously go to bat for scoundrels. In the process, they milk everyone for money and accuse everyone of lying--except themselves.
Maybe our language has something to do with lawyers' poor reputation in America. Yesterday I thought about the word "lawyer," as well as its interchangeable synonym, "attorney." Then I thought about the German word for lawyer, Rechtsanwalt. I have often uncovered compelling conceptual relationships among English words by comparing their equivalents in foreign languages. Perhaps I could understand why lawyers have such a bad reputation in America by making some linguistic comparisons.
Literally, Rechtsanwalt means "rights advocate." That sounds somehow more detached than "lawyer." Although lawyers are not the most respected members in German society, either, their name reveals something more transcendent than "lawyer." After all, a "rights advocate" is someone who stands up for rights. Rights are principles that mean something greater than individual self-interest. Rights stand for something beyond commerce and winning. Rights symbolize personal worth against government intrusion. Rights are somehow "sacred" and "inviolable." When someone violates a right, the aggrieved person has a claim against the violator. We enshrine rights. They exist beyond life. They encapsulate our deepest values. They express our fundamental expectations as individuals in society. Men have gone to war over rights. They have written philosophical treatises about the "Rights of Man" and launched revolutions to secure "inalienable rights." While rights may just be a human invention, they nevertheless represent something larger in people's lives. People willingly fight for rights. While it is ignoble to die for money, it is noble and just to die for rights.
In this light, a "rights advocate" seems a much nobler name than "lawyer." While lawyers in America--just like Rechtsanwälte in Germany--make their living by defending clients' "rights," their name suggests something far less honorable. "Lawyer" is embarrassingly common. It says nothing about "advocating for rights." Rather, it sounds like just another petty craftsman. In English, after all, the suffix "-yer" historically connotes a street-level artisan, like a "sawyer" (man who crafts wood with a saw) or "bowyer" (man who makes bows). Linguistically, then, lawyers fit into this tradition as "petty craftsmen who bend the law just as a journeyman bends a bow."
This interpretation goes beyond mere mockery. It is surprisingly appropriate in describing the lawyer's role in America. After all, lawyering is all about results in America. It is commercially straightforward. It is no different than manipulating tools to saw planks or build bows. People who want to buy plywood and bows don't care about others' rights. They merely want products to be crafted and built. And lawyers hawk the law in stores, just as sawyers hawked sawcraft in old England.
In a word, the word "lawyer" perfectly expresses the commercial nature of legal practice in America. It is not about "transcendent rights for all." Rather, it is about tailor-made products for particular clients who want particular results. The word's origin conceptually places lawyers exactly where they belong: Among street peddlers and common craftsmen.
But what about "attorney?" Does the synonym save the concept "lawyer" from moral destitution? To determine this, we must examine its etymology. "Attorney" derives from French. It takes its form from the French verb "tourner," meaning "to turn," then adds the Anglicized prefix "at-", meaning "to" or "toward." In French, the past participle of "attourner" is "attourné," meaning "turned to." The suffix "-ey" indicates that at some point an Englishman changed the French past participle into letters he could pronounce: He transformed the foreign-looking "é" into "-ey." Behold: Attorney. Literally: "Person turned to."
So how does this differ from "lawyer?" Is it any "better?" Not much. If anything, the word "attorney" refers to the lawyer's role as confidant and advisor in times of trouble. People need to "turn to" others when something bad happens to them. In some sense, the word "attorney" is paternalistic because it implies that people are too weak to fend for themselves and they need a "father-like" lawyer to shepherd them through difficulty. But in another sense, "attorney" implies that a lawyer is a partisan mercenary who will do anything his client tells him. After all, why would you "turn to" a lawyer if not to win your case at all costs?
In my view, the word "attorney" represents the lawyer's role as adversary in the American system. People "turn to" lawyers when they have a commercial problem. They expect their lawyers to vigorously advance their interests, even if those interests stand at odds with all the world. As a partisan, the attorney will "bend the law" in whatever way he can to win. In this way, the words "attorney" and "lawyer" mutually reinforce the commercial--and result-oriented-- nature of legal practice in America. People expect lawyers to do their bidding, so they "turn to" them. And once they do, they expect lawyers to sell them a ready-made product without quibbling over larger issues like conscience or ethics.
This is not to say that some American lawyers are not "rights advocates." On many levels, they are. Every legal case involves rights. But not all rights are noble. In fact, most legal rights involve contracts, property and other social mechanisms designed to maintain private ownership. As a consequence, legal rights perpetuate unfairness because those who can assert them generally have much more power than those who do not. To speak broadly, those with more riches often have substantially more legal rights than those without riches.
But these are merely "technical," private legal rights. There are public rights, too. And those rights have a largely positive connotation. Most people think about public (constitutional) rights when they hear the word "rights," like the right to free speech and the right to equal protection under law. That is why the German word Rechtsanwalt conveys a more positive connotation with regard to the law than the English words "lawyer" and "attorney." It focuses on rights, not commerce or craftsmanship.
In America, people "turn to lawyers." Yet that is the reason why lawyers always get bad press. No one likes a crafty, small-minded, contentious partisan who bickers and backstabs for a fee. Yet that is what lawyers do here. They are crafty craftsmen who bend bows for a set price, not noble "rights advocates." They sell products, just like any other peddler. But unlike other peddlers, they are paid to fight for one person's "rights"--and trample you if you get in their way.
Lawyers are always in the news. They like talking to the press. And the press likes talking about them. They always have something to say; lawyers are pretty glib. They like free advertising, too. So they are happy to speak up when cameras roll.
But no matter how much press lawyers get, it's usually bad. In most cases, news stories involving lawyers discuss their avarice, moral bankruptcy, hypocrisy or outright criminality. Most recently, for instance, several newspapers reported on the proposed settlement between New York City and 9/11 workers. Apparently, the lawyers in that case (it's a big class action suit) advised the 9/11 workers to settle for around $675 million. That would give the lawyers at least 33%, or $225 million. The 30,000 workers would get the rest. A judge rejected the proposal. The press described it like this: "Judge refuses to bow to greedy lawyers. Rejects 9/11 settlement."
People expect lawyers to be greedy in America. That's their reputation. That's what they do. They intervene in private disputes, work mysterious magic behind the velvet curtain then take their fee. That's just how it works. At the same time, people expect lawyers to break rules as often as they enforce them. Vulgar punners like to cross the word lawyer with "liar;" and the pun is not too far off the mark. When hearing about lawyers, people expect elusiveness, craftiness, dishonesty, theft and nasty-spiritedness. It's all part of the public image. It is no wonder that the public does not respect lawyers. Viewed in the abstract, they are a lousy bunch.
But it's all part of the trade. Lawyering is a lousy business. Government tries its utmost to cultivate respect for the law as a beneficial social construct designed to bring about good. Yet a quick brush with lawyers undermines any respect a citizen might have developed for the law. With lawyers, it's not about doing good. It's about winning. And if winning means subverting good--or even allowing evil to prevail--then so be it. That's business. After all, that's what the client wants. As law firms like to say: "We are result-oriented." How true: Lawyers get results for their clients, even if those results seem despicable to everyone else on earth. The word "result," after all, does not necessarily imply "good" or "ethical." Results depend on who's getting them. A good result for the labor baron is a bad result for the workers. A good result for the State is a bad result for the Defendant. A good result for the employer is a bad result for the employee.
Lawyers sell results. They get them however they can. That is why people don't respect lawyers; they are crass partisans who zealously go to bat for scoundrels. In the process, they milk everyone for money and accuse everyone of lying--except themselves.
Maybe our language has something to do with lawyers' poor reputation in America. Yesterday I thought about the word "lawyer," as well as its interchangeable synonym, "attorney." Then I thought about the German word for lawyer, Rechtsanwalt. I have often uncovered compelling conceptual relationships among English words by comparing their equivalents in foreign languages. Perhaps I could understand why lawyers have such a bad reputation in America by making some linguistic comparisons.
Literally, Rechtsanwalt means "rights advocate." That sounds somehow more detached than "lawyer." Although lawyers are not the most respected members in German society, either, their name reveals something more transcendent than "lawyer." After all, a "rights advocate" is someone who stands up for rights. Rights are principles that mean something greater than individual self-interest. Rights stand for something beyond commerce and winning. Rights symbolize personal worth against government intrusion. Rights are somehow "sacred" and "inviolable." When someone violates a right, the aggrieved person has a claim against the violator. We enshrine rights. They exist beyond life. They encapsulate our deepest values. They express our fundamental expectations as individuals in society. Men have gone to war over rights. They have written philosophical treatises about the "Rights of Man" and launched revolutions to secure "inalienable rights." While rights may just be a human invention, they nevertheless represent something larger in people's lives. People willingly fight for rights. While it is ignoble to die for money, it is noble and just to die for rights.
In this light, a "rights advocate" seems a much nobler name than "lawyer." While lawyers in America--just like Rechtsanwälte in Germany--make their living by defending clients' "rights," their name suggests something far less honorable. "Lawyer" is embarrassingly common. It says nothing about "advocating for rights." Rather, it sounds like just another petty craftsman. In English, after all, the suffix "-yer" historically connotes a street-level artisan, like a "sawyer" (man who crafts wood with a saw) or "bowyer" (man who makes bows). Linguistically, then, lawyers fit into this tradition as "petty craftsmen who bend the law just as a journeyman bends a bow."
This interpretation goes beyond mere mockery. It is surprisingly appropriate in describing the lawyer's role in America. After all, lawyering is all about results in America. It is commercially straightforward. It is no different than manipulating tools to saw planks or build bows. People who want to buy plywood and bows don't care about others' rights. They merely want products to be crafted and built. And lawyers hawk the law in stores, just as sawyers hawked sawcraft in old England.
In a word, the word "lawyer" perfectly expresses the commercial nature of legal practice in America. It is not about "transcendent rights for all." Rather, it is about tailor-made products for particular clients who want particular results. The word's origin conceptually places lawyers exactly where they belong: Among street peddlers and common craftsmen.
But what about "attorney?" Does the synonym save the concept "lawyer" from moral destitution? To determine this, we must examine its etymology. "Attorney" derives from French. It takes its form from the French verb "tourner," meaning "to turn," then adds the Anglicized prefix "at-", meaning "to" or "toward." In French, the past participle of "attourner" is "attourné," meaning "turned to." The suffix "-ey" indicates that at some point an Englishman changed the French past participle into letters he could pronounce: He transformed the foreign-looking "é" into "-ey." Behold: Attorney. Literally: "Person turned to."
So how does this differ from "lawyer?" Is it any "better?" Not much. If anything, the word "attorney" refers to the lawyer's role as confidant and advisor in times of trouble. People need to "turn to" others when something bad happens to them. In some sense, the word "attorney" is paternalistic because it implies that people are too weak to fend for themselves and they need a "father-like" lawyer to shepherd them through difficulty. But in another sense, "attorney" implies that a lawyer is a partisan mercenary who will do anything his client tells him. After all, why would you "turn to" a lawyer if not to win your case at all costs?
In my view, the word "attorney" represents the lawyer's role as adversary in the American system. People "turn to" lawyers when they have a commercial problem. They expect their lawyers to vigorously advance their interests, even if those interests stand at odds with all the world. As a partisan, the attorney will "bend the law" in whatever way he can to win. In this way, the words "attorney" and "lawyer" mutually reinforce the commercial--and result-oriented-- nature of legal practice in America. People expect lawyers to do their bidding, so they "turn to" them. And once they do, they expect lawyers to sell them a ready-made product without quibbling over larger issues like conscience or ethics.
This is not to say that some American lawyers are not "rights advocates." On many levels, they are. Every legal case involves rights. But not all rights are noble. In fact, most legal rights involve contracts, property and other social mechanisms designed to maintain private ownership. As a consequence, legal rights perpetuate unfairness because those who can assert them generally have much more power than those who do not. To speak broadly, those with more riches often have substantially more legal rights than those without riches.
But these are merely "technical," private legal rights. There are public rights, too. And those rights have a largely positive connotation. Most people think about public (constitutional) rights when they hear the word "rights," like the right to free speech and the right to equal protection under law. That is why the German word Rechtsanwalt conveys a more positive connotation with regard to the law than the English words "lawyer" and "attorney." It focuses on rights, not commerce or craftsmanship.
In America, people "turn to lawyers." Yet that is the reason why lawyers always get bad press. No one likes a crafty, small-minded, contentious partisan who bickers and backstabs for a fee. Yet that is what lawyers do here. They are crafty craftsmen who bend bows for a set price, not noble "rights advocates." They sell products, just like any other peddler. But unlike other peddlers, they are paid to fight for one person's "rights"--and trample you if you get in their way.
Friday, February 5, 2010
NATIONAL BROTHERHOOD OF NO-GOOD SCOUNDRELS, DISHONORABLE PRICKS, LOW-DOWN PUNKS AND PLAIN LOUSY SONOFABITCHES WHO NEVER CALL YOU BACK
POLITICAL PARTIES FOR A CHANGING WORLDBy : Dr. U. B. van Flucken, Ph. D., Yale University (Behavioral Science); Former Fashion and Women's Issues Editor, Men's Health Magazine (2003-2007); Fellow, The National Favorable Results Society (Washington, D.C. Chapter); Author, "Say What You Need To Say : A Beginner's Guide to Getting What You Want from People " (Doubleday Press : New York 1999); Semi-Professional Water Polo Competitor (Greater Northeast Elite Sports Network) (1989-present).
No matter where you turn in this country, people tell you that it is bad to be a scoundrel. They say that it is wrong to lie, exaggerate, deceive, betray, backstab and abuse people's trust. They say it is wrong to borrow money without paying it back. And they even say it is wrong to two-time on your girlfriend.
But these folks just don't know how to be a no-good scoundrel. Contrary to all the propaganda, there is nothing wrong at all with being a no-good, morally-destitute scoundrel. You just have to know how to play your cards right. In fact, great people know how to be great scoundrels. And they become great because they know how to disguise who they really are: Scoundrels.
I started the National Brotherhood of No-Good Scoundrels, Dishonorable Pricks, Low-Down Punks and Plain Lousy Sonofabitches Who Never Call You Back for a simple reason: To show Americans how vital we really are. Since founding the organization, I have struggled to demonstrate that honorable responsibility is not the pathway to success. To the contrary, it is my mission to show that only a dishonorable scoundrel can prevail in this world. And it is not a hard job: If you know how to be a low-down, dishonorable punk and not get caught, there is nothing you cannot accomplish.
Success is all about image. When you're a successful scoundrel, no one knows just how big a scoundrel you really are. If they did, they'd ostracize you and no one would want to talk to you. Scoundrels need people; you can't be successful without them. But real scoundrels know how to control their image. They don’t let people get the right idea about them. They carefully monitor how people perceive them, then skillfully play one unsuspecting idiot off the other to gain all the advantages. Contrary to all the rhetoric, scoundrels aren't haphazard bums. They know exactly what they're doing at all times.
Not everyone has the guts to be an unrepentant, conniving knave. Most people buy into the propaganda and try to live honorable, "decent" lives. A lot of good that does: They wind up working loser jobs for bad pay, then skulking around with their wives and boring children for years on end. Sure, they might get some inward satisfaction from "treating people with respect" and "telling the truth, no matter what."
But at what cost! Wouldn't it be so much better to twist a few arms and tell a few tall tales here and there to really get what you want? Wouldn't life be so much more rewarding if you played some putz like a fiddle, then refused to call him back when he needed you? Why not? As long as you make sure that the guy isn't important for your advancement later, screw him. Tell him what he wants to hear. Inflate yourself. Get what you need from him. Then just forget about him and move on to the next sucker. Remember: Life is a ladder with human rungs. You need to keep moving up if you want to get to the top.
Dishonor, manipulation and double-dealing bring untold rewards. Still, a skillful rogue must make sure he does not generate the wrong impression. Good scoundrels effortlessly master disguises. You can't just trample on people and expect them to take it. Rather, a skillful rogue knows how to totally screw a person over without them knowing until it is too late--if ever. Scoundrels like us only got a bad reputation because some jerk tried to be clever and got caught in the act. And scoundrels only get caught when they are not paying attention to what they are doing. In that sense, true scoundrels are not scoundrels at all: They are virtuosos who know how to spin a story and exploit the hell out of people without anyone ever catching on. That takes skill--not everyone can hack it.
Life is tough enough without worrying about whether you're responsible or ethical. Everyone wants the same things: Money, success, happiness, women, recognition. You know, the usual stuff. Everyone is chasing after the same rewards. It is hard to win even without rules. That is why it amazes me that people insist on "honest dealing," "telling the truth" and "propriety" in their quest for success. That's like tying a boulder to your leg before swimming the English Channel: It greatly impedes your chances to succeed. In fact, it will probably sink you long before you even come close to your goal.
But scoundrels don't bother with boulders. They dress for success. They think about where they want to go and just do it. They do not distract themselves with abstractions. They don't overthink issues; they just deliver results. To that end, it makes no sense to respect everyone. In fact, most people on the road to success are hopeful scoundrels, too, and why would you respect someone who is trying to hoodwink you? No, a skillful rogue simply acts like he respects his fellows, when in truth he knows what they are: Just another low-down sonofabitch determined to block his advance up the ladder. To be a successful scoundrel, you must hold certain assumptions about your fellow man. And that means you expect to be deceived, deluded, used, abused, tossed away, manipulated and forgotten. It’s all part of the ball game: You need a tough heart to keep playing.
Great scoundrels don't get discouraged. They seek out weakness and capitalize on it. Sure, they know that people are out to use them, but they use others before they can be used. And in the off chance that someone actually trusts them, all the better. Clever scoundrels always come out ahead.
In this light, it is inconceivable why society holds us in such contempt. We are the go-getters. On the other hand, we recognize that no-good scoundrels, dishonorable pricks, low-down punks and plain lousy sonofabitches occupy the highest positions in our society. We run the banks. We run the Senate. We run the stock exchange. We run the insurance companies. We control everything. And the beauty of it is that no one knows we are scoundrels--or, if they found out, there's nothing they could do about it. People only ridicule us when we commit some faux pas that blows our cover. Great scoundrels, however, are extremely discreet. They don't make faux pas: They screw everyone else over their whole lives and no one ever notices.
For that reason, all the social criticism against scoundrels makes no difference to a truly dishonorable punk. A masterfully rotten scoundrel never makes a mistake to invite rebuke. He just keeps moving over people until he quietly reaches his goal.
We prefer it that way. The moralists and ethicists can whine all they want about "irresponsibility." They are only talking about amateur scoundrels. Little do the moralists know that professional scoundrels are the ones paying them to do their little jobs. Little do the ethicists know that professional scoundrels are the ones who own the printing companies that publish their little books. Undiscovered, virtuoso scoundrels run this world--and no one will ever know the difference. That's exactly how we like it.
So what is our secret? If being a scoundrel is so advantageous, why do so many people refuse to follow our path? We wish we could provide specific advice in this regard. The most we can say is to put yourself above others, keep your eyes on the prize and do what you need to do to get it. Don’t slow yourself down with categorical loyalties, philosophical principles or--God forbid--conscientious worries.
In a word, a great scoundrel is a great actor. He can play any part. But he must remain believable. In fact, a scoundrel has failed when the world calls him one. Great scoundrels appear to be everything, even if they are nothing. They seem to be friends with everyone, when in truth they have none. In the scoundrel's world, it's all about presentation. It doesn’t matter if there's really nothing there. Very few people ever really look to see if there is, anyway.
So if you really want to be scoundrel, start thinking about your image. Stop thinking about dignity and worth. Stop thinking about honesty, unless it would help to be honest in a particular situation. For a scoundrel, the truth is never absolute. It is just a tool. Mark that and you will go far.
Tread softly. Flatter. Connive. Ingratiate. Betray. Lie. Win.
Be a no-good scoundrel. Because good never got anyone what they wanted. And there's nothing wrong with getting what you want.
Wednesday, December 16, 2009
ARE LAWYERS ALLOWED TO CARE ABOUT FAIRNESS?
AN ESSAY
I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.
My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."
In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."
And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.
This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.
Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.
We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.
And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.
I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.
Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.
This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."
In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.
Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.
I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.
My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."
In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."
And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.
This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.
Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.
We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.
And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.
I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.
Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.
This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."
In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.
Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.
Thursday, December 3, 2009
AL QAEDA SURRENDERS
*BIG NEWS FLASH*IT'S OFFICIAL : BIN LADEN THROWS IN THE TOWEL; HANDS HIMSELF OVER TO U.S.
Reason, Commerce, Justice & Free Beer has just learned that al-Qaeda mastermind Osama bin Laden has "given up the war" against Western imperialism. He handed himself over to U.S. forces stationed in Puerto Rico. "You idiots thought I was in Afghanistan the whole time. All the while I was sunning myself right under your noses. Well, I'm giving up because I just don't feel like fighting anymore, not because you beat me. I need a break."
Mr. bin Laden spoke for al-Qaeda when he said that there was "no point" fighting against the United States any longer. "We keep on killing you and you just keep shopping. No matter how many people we blow up, you never change. What's the point? I'm sick of banging my head against the wall trying to convince you guys that you're not living right. Oh well; I'll sign whatever you want me to sign."
Commanding American general Raymond D. Odierno accepted Mr. bin Laden's surrender. He also demanded that Mr. bin Laden sign a peace treaty with the United States. "We end wars with treaties," explained General Odierno.
Under the treaty--informally named the Chillocothe Protocol of 2009 after a town in Ohio (for no particular reason)--Mr. bin Laden admits that he started the War on Terror and that he lost. He also admits that he is responsible for property damage exceeding $5.00 worldwide. The treaty provides that Mr. bin Laden and al-Qaeda will pay compensation for starting the war, as well as apologize to the San Francisco Fire Department for forcing its members to undergo additional disaster training. Mr. bin Laden further agrees to help Larry Silverstein--owner of the World Trade Center real estate--find a suitable new property for his commercial ventures. In short, Mr. bin Laden promises that he will not be a terrorist anymore. Rather, he promises to meaningfully contribute to the American economy.
For his part, Mr. bin Laden said that it was getting "tiresome" fighting U.S. Forces abroad. "They invaded our homelands, they defiled Mecca and they killed our families with cruise missiles. We tried to hit back at them, but they just keep coming. We wanted to show that they were Western barbarians obsessed with profit and oil. But no matter how many civilians and soldiers we killed, they just kept going to Wal-Mart without fear. You have no idea how frustrating it is to dedicate yourself to terrorism, and after 10 years Americans still aren't afraid. Does Kanye West look scared? How about Tom Brady? Dick Cheney? They're more afraid of the IRS than me. True, I suppose I've made some Americans' lives difficult by forcing them to endure strip searches and long lines at airports, but that wasn't my intention. I wanted to show the Americans that they are wrong about life. I've failed: They still just want to make money, go to the movies, eat fast food, watch Sunday sports broadcasts and purchase homes. Well, I suppose if you can't beat them, might as well join them. I give up. Screw it. Most of them will die of obesity-related illnesses anyway."
American authorities are pleased that Mr. bin Laden has proven so cooperative with U.S demands. Secretary of State Hillary Clinton praised Mr. bin Laden for his "extraordinary efforts to comply with American requirements:" "Mr. bin Laden even agreed to convert to Christianity and celebrate Christmas with the Metropolitan Baltimore Caroling Society. He has agreed to buy Wii home entertainment systems for low-income children in the Bronx. In short, Mr. bin Laden has gone from villain to Santa Claus overnight. What an astonishing turnaround."
Despite Mr. bin Laden's agreement to cooperate with the United States, American authorities worry what his al-Qaeda followers will do now that he has surrendered. Thankfully, many former al-Qaeda operatives--including previously undiscovered "sleeper" agents both in the U.S. and abroad--have voluntarily given up and agreed to convert to Christianity. Like their leader, these operatives agree that fighting the United States is a hopeless cause. Many--including suspected mass murderer Mohammad Zazabi--have even agreed to abandon terrorism and work in the private sector. Mr. Zazabi even said that he was willing to wear an elf costume this Christmas season and hand out free perfume at Macy's in New York City. "If I cannot kill them, I will provide them fragrant waters. I will now show that I, too, can be someone in America," he said.
Hollywood celebrities are overjoyed that al-Qaeda has surrendered. "The War on Terror is over," said Zac Efron. "Let's welcome our new friends into our lives." Mr. Efron said that Disney has already begun planning a musical based on Mr. bin Laden's surrender in which Mr. bin Laden will meet the cast of High School Musical and dance several numbers, including: "I Used to Terrorize, Now I Just Texticize LOLLERS," and sing the solo "Tora Bora No More-A More-A."
Mr. bin Laden is a busier man now than he ever was as al-Qaeda's shadowy leader. He now has a schedule packed with interviews, book signings, university commencement speeches and motivational talks about leadership with Fortune 500 corporate boards. He is even slated to appear on FOX News as a Middle Eastern commentator.
"He knows what he's talking about," said Bill O'Reilly of his new colleague. "I can let bygones be bygones. Osama told me he doesn't like Obama, so he's OK in my boat."
"I am a rational man," Mr. bin Laden said during treaty negotiations. "I know when a cause is hopeless. Americans do not respond to terrorism, so I will not be a terrorist anymore. I'm a result-oriented person; I'm not going to play a losing game. I abandon strategies that don't work. Instead, I will just get with the program and pursue more profitable endeavors."
Mr. bin Laden's remarks about "results," "profit" and "winning strategies" won him kudos from industry leaders nationwide. "Part of winning means giving up on losing," said J. Ferguson Bradworth, CFO of Schluck Pharmaceuticals Co., Inc.
Tuesday, November 17, 2009
AMERICAN TROOPS DON'T NEED MODERN WEAPONS TO BEAT INSURGENTS AND TERRORISTS
A WORD FROM THE FRONT
By : Colonel Harold F. Ehrenkranz, United States Army, 443rd Infantry Regiment, Kabul, Afghanistan
We are winning the war. We easily defeated Saddam Hussein in 2003 and we drove Osama bin Laden like a rat from his cave. No matter what the critics back home say, the United States military has kicked terrorist ass no matter where it has dared to bare itself.
And why shouldn't we? After all, the United States military has advanced equipment. We know where the insurgents are before we attack them. We have unmanned reconnaissance drones. We have helicopter gunships with laser tracking devices. We even have C-130 assault planes that circle above terrorist camps and blast them with a 75mm airborne artillery cannon. Come on, people, how can we really lose once these buggers come out and fight? Yeah, we've lost a few GIs because the terrorists fight like cowards. But when push comes to shove, we napalm their brown butts before they can say: "Allah, Akbar."
But our battlefield superiority has sparked critics to complain: "It's not a fair fight." They say that it's dishonorable for the United States to use laser-guided bombs, choppers, night-vision scopes and 50-caliber machine guns against goatherds armed with pikes and shovels. Although we acknowledge that our enemies do not enjoy the same technological advantages that we do, we must point out that military operations are not supposed to be fair. Fairness means you give the other fellow an ample opportunity to win. Fairness means he has roughly the same training and equipment as you. Well, that doesn't make sense in war. It's better to fight unfairly and win than to fight fairly and lose. Hey, it's not our problem that Iraq doesn't have an air force.
Still, as soldiers we do not like the implication that we are cheaters. Honor is very important to a soldier. Although we want to win our battles, we feel somehow cheap when we obliterate our opponents with overwhelming modern firepower. I mean, there's not much honor in calling down a chopper strike on a house filled with 5 camel-herders armed with bolt-action rifles. Sure, it's an easy win, but what did we prove as soldiers? We did not prove our superior training. We simply proved that we have greater technology and we can kill without risk to ourselves.
As an honorable United States Army officer, I am prepared to meet any challenge to my honor. I am prepared to say that American soldiers are tougher, better trained and deadlier than any insurgent on earth. We don't need fancy night-vision goggles, airpower or laser-scopes to beat turban-wearing shepherds. We can take them blindfolded with one hand tied behind our backs. We are better men than these cowardly terrorists. That's why I am proud to announce that my regiment will drop all its modern weapons next month and fight the terrorists at an intentional disadvantage.
Next month will be "Redcoat Month" in the 443rd Infantry Regiment. In order to show that American troops are better men than these lousy insurgents, we commit to fighting in the open. We commit to refusing all air support. We even commit to dropping our khaki camouflage uniforms and donning 18th Century British red uniforms. We will not even use modern weapons. We are so confident that we are better soldiers than these pitiful rebels that we will use only flintlock muskets with bayonets.
We'll see who's more honorable next month. We won't even follow modern battlefield protocol or tactics. We will march in line formation in daylight through enemy-controlled sectors flying flags and singing American songs. When the insurgents attack, we will hold the line and present disciplined musket fire against them. If they fight from cover, we will call them dishonorable cowards. And we will win because we are tougher soldiers who prefer honorable death to dishonorable victory.
Just let these scrappers try to ambush us. We don't need cover. We can shoot better than any Afghan farmer, even with smoothbore muskets that take 30 seconds to reload. But just in case the battle goes poorly, we reserve the right to call in our dragoons and muzzle-loading 8-pound cannons. We'll see who's tougher when the Afghan militia comes face to face with honorable American horse-drawn field guns! Just look at them. Be afraid, Mullah Omar, be VERY afraid:
We will win the war because we are Americans. We are better than the Afghanis and Iraqis not because we have superior military equipment, air power and advanced recon drones with satellite-driven global positioning capability. We are better because we are true soldiers. We can win this war without newfangled technological contraptions. Give just one American a musket and a bayonet and he can beat any disorganized Arab mob.President Obama, you don't need to send reinforcements. We have the situation well in hand. We swear to bring honor to you and the United States by defeating these rebel scum on fair terms in open combat. Forget about the air force. We refuse to sully our honor by letting pilots do our work. No, Mr. President, we will bring you the Afghan warlords' heads in a sack after we defeat their forces with muskets and pistols. Never fear; every American boy will make it home. These devious terrorists can't hurt us. Even if we march in parade step in bright red uniforms against their AK-47s and RPGs, we will prevail because we are Americans.
This is Redcoat Month. The United States will win a great and honorable victory in Afghanistan. And we will do it with a handicap. Let's see what the critics say about us then.
Friday, November 6, 2009
WHAT'S WORSE, IRAQ OR VIETNAM? LOW POINTS IN AMERICAN HISTORY
AN ESSAY
Before the "conflict" in Vietnam during the 1960s and 1970s, America had a hearty appetite for war. In the decades before Vietnam, Americans had waged several very successful wars against traditional opponents in Europe and Asia. They used their overwhelming industrial might to grind their enemies into submission. And because they always waged war far from home, these wars never directly impacted the civilian population. American cities never burned, nor did rampaging armies rape American women. In short, America had an appetite for war because it won them with comparatively little sacrifice.
But Vietnam tempered America's appetite for war because it was "unwinnable." Unlike the world wars, Vietnam was a civil war between ideological enemies in the same country. The "enemy" did not fight along traditional lines; they fought a dispersed war. They made it difficult for America to leverage its massive industrial might against them. Despite America's massive technological and material advantages, the North Vietnamese continued to resist. They never fought pitched battles with the Americans. They used hit-and-run tactics, preserved their forces and vanished into the jungle. No matter how many B-52 bombers or helicopters the Americans threw at them, they always managed to reappear. For a country accustomed to obliterating its enemies in open combat, this was a rude awakening.
America called Vietnam a "quagmire" because it could not crush its enemies in a single campaign. America does not like "quagmires" for the same reason it does not like unprofitable businesses: If you can't deliver success quick, people lose interest and close you down. America likes quick wins, not protracted struggles. Vietnam was a protracted struggle. When it appeared that no measure of carpet bombing or napalm would bring the North Vietnamese to heel, the American people simply lost interest and gave up.
This was a sobering moment in American history. Ragtag communist rebels turned away the world's most advanced army. The North Vietnamese never defeated the Americans in the field, but they successfully protracted the war long enough to deprive America's will for further combat. In this sense, they did not inflict a "military defeat" on the United States. But they prevented the United States from "achieving victory." That was a first in American history. And it disheartened many Americans.
Disbelief and frustration over the "unsatisfactory result" in Vietnam colored American public opinion about war for decades. During the buildup to the First Gulf War in 1990, President George H.W. Bush reassured the public that the coming conflict in Kuwait would result in "decisive victory." He invoked the "quagmire" in Southeast Asia when he said: "This will not be another Vietnam." He knew that Americans would not tolerate a protracted struggle. So he set his goal modestly: Destroy the Iraqi army, liberate Kuwait and go home. It was an achievable goal. He accomplished it. Unlike Vietnam, the First Gulf War was not a "quagmire" because it had a limited scope. Americans were happy with the outcome.
But the Second Gulf War did not have a limited scope. Unlike his father, President George W. Bush did not set achievable goals when he planned to invade Iraq in 2003. He said he wanted to "find weapons of mass destruction" and "remove Saddam Hussein from power." Yet any novice policy adviser knew that occupying a Middle Eastern country would entail a much broader involvement than merely liberating one Nation from another. Sure enough, this is exactly what happened. After ousting Saddam, American forces assumed a "police role" in Iraq. By removing Saddam, they unleashed a power vacuum that triggered a civil war. American troops found themselves in the crossfire between two warring factions. Casualties mounted. There was no end in sight.
We are still there: Another quagmire.
Both the Second Gulf War and Vietnam represent low points in American history. They both represent moments in which America questions its ability to wage successful wars. They both caused immense dissent at home. But I venture that the "Iraqi adventure" is a lower point in American history than the Vietnam war. I say this because there is a key distinction in motivation between them. I judge history by the intentions of those who animate it. And by that standard, Iraq appears a more unethical struggle than Vietnam.
Although both Vietnam and Iraq resulted in military "quagmires," America had a much purer purpose in Vietnam than it did in Iraq. For better or worse, America involved itself in Vietnam for an almost naive ideological reason: To halt the spread of its philosophical nemesis: Communism. America did not have any particular loyalty to the South Vietnamese government, nor did it have vested commercial interests in Southeast Asia. Instead, it embroiled itself in a bloody civil war 10,000 miles away solely to show that it did not like communism. No matter what you think about communism, you cannot fault the United States for believing in its "principles" in Vietnam. It had a clear philosophical "purpose" in fighting that war. It may have been the wrong purpose, but at least America believed in something to justify its sacrifice.
In short, America's motivations were apparent in Vietnam. And they were based in philosophical disagreement. Vietnam, then, represented America's belief in its own economic system over another. It was a "battle of principles."
But America's motivations for war in Iraq were far less naive. Despite Bush's rhetoric about "delivering democracy to Iraq" and "freeing Iraqis from tyranny," no one really believed those explanations. No, any reasonable person could see that America had massive commercial interests in an oil-producing country like Iraq. Even the Vice President owned shares in a company that stood to greatly benefit from any military involvement in the Middle East.
Worse, America took a dishonest course in shuffling toward war in 2003. President Bush used public hysteria about Islamic terrorism to forge a fanciful link between Osama bin Laden and Iraq. He even exaggerated stories about Iraqi "weapons of mass destruction" to deceive Americans into thinking that invading Iraq was necessary for "self-defense." He presented false testimony to the United Nations and the American public to garner support for military action. All the while, he failed to mention the crude commercial reasons why war in Iraq would benefit industrial interests.
America's "quagmire" in Iraq is not just a military fiasco. It is also the culmination of unethical behavior and dishonesty on an international scale. That is why I think it warrants greater condemnation than American involvement in Vietnam. As bad as Vietnam was, at least the President did not deceive both the international community and his own people to launch an unjust war. In Vietnam, America fought honestly to combat a philosophy it rejected. Everyone was relatively clear about that. But in Iraq, America fought--and still fights--an unnecessary war born in ignorance and deception. Worst, even a mild cynic can see that America has a direct interest in seizing territory in the oil-rich Middle East. And the commercial explanation renders all other explanations disingenuous. There was no such commercial explanation for war in Vietnam.
In sum, both Vietnam and Iraq stand out as bleak moments in American history. Both drove America into social turmoil because they did not result in "quick wins." But because America resorted to dishonesty to garner support for war in Iraq, I conclude that our experience in Iraq is a more embarrassing national humiliation than Vietnam. Unlike our naive--and foolishly misguided--motivations for war in Vietnam, our motivations for war in Iraq were simply crass, greedy and dishonorable. And we even had to lie and cheat to gain popular approval for action.
That is just unethical and shocking.
Before the "conflict" in Vietnam during the 1960s and 1970s, America had a hearty appetite for war. In the decades before Vietnam, Americans had waged several very successful wars against traditional opponents in Europe and Asia. They used their overwhelming industrial might to grind their enemies into submission. And because they always waged war far from home, these wars never directly impacted the civilian population. American cities never burned, nor did rampaging armies rape American women. In short, America had an appetite for war because it won them with comparatively little sacrifice.
But Vietnam tempered America's appetite for war because it was "unwinnable." Unlike the world wars, Vietnam was a civil war between ideological enemies in the same country. The "enemy" did not fight along traditional lines; they fought a dispersed war. They made it difficult for America to leverage its massive industrial might against them. Despite America's massive technological and material advantages, the North Vietnamese continued to resist. They never fought pitched battles with the Americans. They used hit-and-run tactics, preserved their forces and vanished into the jungle. No matter how many B-52 bombers or helicopters the Americans threw at them, they always managed to reappear. For a country accustomed to obliterating its enemies in open combat, this was a rude awakening.
America called Vietnam a "quagmire" because it could not crush its enemies in a single campaign. America does not like "quagmires" for the same reason it does not like unprofitable businesses: If you can't deliver success quick, people lose interest and close you down. America likes quick wins, not protracted struggles. Vietnam was a protracted struggle. When it appeared that no measure of carpet bombing or napalm would bring the North Vietnamese to heel, the American people simply lost interest and gave up.
This was a sobering moment in American history. Ragtag communist rebels turned away the world's most advanced army. The North Vietnamese never defeated the Americans in the field, but they successfully protracted the war long enough to deprive America's will for further combat. In this sense, they did not inflict a "military defeat" on the United States. But they prevented the United States from "achieving victory." That was a first in American history. And it disheartened many Americans.
Disbelief and frustration over the "unsatisfactory result" in Vietnam colored American public opinion about war for decades. During the buildup to the First Gulf War in 1990, President George H.W. Bush reassured the public that the coming conflict in Kuwait would result in "decisive victory." He invoked the "quagmire" in Southeast Asia when he said: "This will not be another Vietnam." He knew that Americans would not tolerate a protracted struggle. So he set his goal modestly: Destroy the Iraqi army, liberate Kuwait and go home. It was an achievable goal. He accomplished it. Unlike Vietnam, the First Gulf War was not a "quagmire" because it had a limited scope. Americans were happy with the outcome.
But the Second Gulf War did not have a limited scope. Unlike his father, President George W. Bush did not set achievable goals when he planned to invade Iraq in 2003. He said he wanted to "find weapons of mass destruction" and "remove Saddam Hussein from power." Yet any novice policy adviser knew that occupying a Middle Eastern country would entail a much broader involvement than merely liberating one Nation from another. Sure enough, this is exactly what happened. After ousting Saddam, American forces assumed a "police role" in Iraq. By removing Saddam, they unleashed a power vacuum that triggered a civil war. American troops found themselves in the crossfire between two warring factions. Casualties mounted. There was no end in sight.
We are still there: Another quagmire.
Both the Second Gulf War and Vietnam represent low points in American history. They both represent moments in which America questions its ability to wage successful wars. They both caused immense dissent at home. But I venture that the "Iraqi adventure" is a lower point in American history than the Vietnam war. I say this because there is a key distinction in motivation between them. I judge history by the intentions of those who animate it. And by that standard, Iraq appears a more unethical struggle than Vietnam.
Although both Vietnam and Iraq resulted in military "quagmires," America had a much purer purpose in Vietnam than it did in Iraq. For better or worse, America involved itself in Vietnam for an almost naive ideological reason: To halt the spread of its philosophical nemesis: Communism. America did not have any particular loyalty to the South Vietnamese government, nor did it have vested commercial interests in Southeast Asia. Instead, it embroiled itself in a bloody civil war 10,000 miles away solely to show that it did not like communism. No matter what you think about communism, you cannot fault the United States for believing in its "principles" in Vietnam. It had a clear philosophical "purpose" in fighting that war. It may have been the wrong purpose, but at least America believed in something to justify its sacrifice.
In short, America's motivations were apparent in Vietnam. And they were based in philosophical disagreement. Vietnam, then, represented America's belief in its own economic system over another. It was a "battle of principles."
But America's motivations for war in Iraq were far less naive. Despite Bush's rhetoric about "delivering democracy to Iraq" and "freeing Iraqis from tyranny," no one really believed those explanations. No, any reasonable person could see that America had massive commercial interests in an oil-producing country like Iraq. Even the Vice President owned shares in a company that stood to greatly benefit from any military involvement in the Middle East.
Worse, America took a dishonest course in shuffling toward war in 2003. President Bush used public hysteria about Islamic terrorism to forge a fanciful link between Osama bin Laden and Iraq. He even exaggerated stories about Iraqi "weapons of mass destruction" to deceive Americans into thinking that invading Iraq was necessary for "self-defense." He presented false testimony to the United Nations and the American public to garner support for military action. All the while, he failed to mention the crude commercial reasons why war in Iraq would benefit industrial interests.
America's "quagmire" in Iraq is not just a military fiasco. It is also the culmination of unethical behavior and dishonesty on an international scale. That is why I think it warrants greater condemnation than American involvement in Vietnam. As bad as Vietnam was, at least the President did not deceive both the international community and his own people to launch an unjust war. In Vietnam, America fought honestly to combat a philosophy it rejected. Everyone was relatively clear about that. But in Iraq, America fought--and still fights--an unnecessary war born in ignorance and deception. Worst, even a mild cynic can see that America has a direct interest in seizing territory in the oil-rich Middle East. And the commercial explanation renders all other explanations disingenuous. There was no such commercial explanation for war in Vietnam.
In sum, both Vietnam and Iraq stand out as bleak moments in American history. Both drove America into social turmoil because they did not result in "quick wins." But because America resorted to dishonesty to garner support for war in Iraq, I conclude that our experience in Iraq is a more embarrassing national humiliation than Vietnam. Unlike our naive--and foolishly misguided--motivations for war in Vietnam, our motivations for war in Iraq were simply crass, greedy and dishonorable. And we even had to lie and cheat to gain popular approval for action.
That is just unethical and shocking.
Tuesday, August 18, 2009
LEGAL "VICTORIES" : PURE EXAGGERATION, AND A BAD WORD CHOICE
AN ESSAY
Law firm websites amuse me. I get priceless satirical material from them. Generally, they take themselves extremely seriously and want to show that they are “winners.” They toss around words like “success,” “results,” “every time,” “reliable,” “professional,” “result-oriented,” “highly successful,” “preeminent,” “unique,” “client-focused,” “team spirit,” “effective” and “experienced.” This all makes me laugh because I know what law firms are like. There is nothing rarefied or glorious about them. They are profit mills in which lawyers pool their efforts to twist the law in their favor. Their “experience,” “results” and “success” flow from their dogged ability to wear down their opponents, then either make money or save money for their clients. For all concerns and purposes, American law practice is an elaborate game. One side wins. The other loses. It is adversarial. And it is seethingly bitter, as all competitive games are.
Big law firms like to report their “recent victories.” After all, “victories” show that the law firm has “won many games,” and potential clients want to win “their game,” too. When betting on a sports team, you want to choose the team most likely to win. You can tell whether a team is more likely to win if you know how often they have won in the past. A law firm’s “past victories” create the impression that it can defeat the opposition again, make money and deliver “success” to a new client. The “victory” metaphor is sport-like, even warlike.
But is law practice supposed to be sport-like? Are legal problems really nothing more than games to be manipulated and won? Or are they miniature wars in which the “enemy” must be hunted down and destroyed? Is this really appropriate rhetoric? After all, law is supposed to provide a rational framework in which to resolve civil disputes. It is supposed to provide reasonable, neutral rules by which to adjudicate problems that might otherwise spur violence. Civilizations invented law to neutralize private violence among citizens intended to redress perceived grievances. In that sense, there is nagging irony in the assertion that lawyers should pursue “victory” for their clients. If law is just and neutral, results should flow as a matter of principle, not as a matter of martial triumph. Law, in other words, is supposed to replace armed conflict as a means to solve problems. Yet the rhetoric of “winning” and “victory” suggests that law is no different from uncivilized, violent struggle. Armies win “victories” by killing those who oppose them in battle. Is this what we expect from lawyers in their “legal battles?”
Let us examine the word “victory.” The word has a decidedly martial connotation. There is nothing detached or nonviolent about it; it involves prevailing over another person or group after a fierce competition or struggle. According to Webster, “victory” means: “1. final and complete supremacy or superiority in battle or war; 2. a specific military engagement ending in triumph; or 3. success in any contest or struggle involving the defeat of an opponent or the overcoming of obstacles.” Webster’s New World College Dictionary (4th Ed.). Two of the three meanings deal specifically with war. The third mentions “success” after “struggling with” and “defeating” an “opponent” in a “contest” with “obstacles.” Victory is a hypercharged, even romantic word. It implies the euphoria that flows from armed triumph over an enemy. It feels good to defeat “opponents” and “overcome obstacles.” It feels good to display “complete supremacy or superiority” over an “enemy in battle or war.” There is nothing more primal than proving domination over an opponent through force. It is crude, animalistic and base. Strong lions overpower weaker ones. They win “victory” over their competitors after a “struggle for supremacy.”
But should lawyers be no different than lions in the wild? Or conquering generals bent on defeating their opponents in battle? I thought law was supposed to elevate us from such violent impulses. I thought law was supposed to replace war with rational principle and reasonable discussion. By using the word “victory” to describe legal “success,” however, lawyers debase themselves. They misunderstand the law. They use it as an arena or a battlefield, not as a rational platform for resolving differences. They approach legal questions like battles, not as opportunities to show their civilized ability to transcend warlike thinking. “Victory” is alluring because everyone likes to “dominate,” “defeat” and “succeed” over a recalcitrant foe. But the question remains: Is law really the right forum to pursue that quest?
Perhaps it is. In the English legal tradition, after all, law functions in an “adversary capacity.” Two sides “face off” against each other. Each side has diametrically opposed interests. One wants land; the other one refuses to give it up. One wants compensation for an injury; the other one refuses to pay. One claims he had a contract; the other says there was never a deal. No matter the facts, “adversary justice” places each side in a “competitive” position. The law assumes that people will make the best arguments—and, ironically, “tell the truth”—in order to satisfy their threatened self-interest. Lawyers step in to vindicate each side’s self-interest. They have only one goal: To defeat the opponent’s arguments and convince the court to grant whatever the client wants.
In this sense, we see that “adversary justice” is profoundly “game-like.” Just as two competitors yearn for “supremacy over the other” in a game, two sides in a legal dispute square off to achieve the same thing. Just as sportsmen must adapt their play to acknowledged rules in their quest for victory, lawyers, too, must contend with “court procedures,” “discovery protocols” and various other “steps” on the road to ultimate success. Each side tries to manipulate the rules to obtain an edge over the other. After all, when “victory” is at stake, you do everything you can to increase your chances to win. In the “adversary system,” competition is fierce. After all, only one side can win; and someone has to lose, too. When money is on the line, the gloves come off. Victory becomes an obsession. Just as two generals struggle violently to obtain an edge over each other in battle, so too do two lawyers savagely grapple with one another for the court’s favor. In all these cases—games, war and “adversary justice”—the breathless quest for victory engenders ruthless competition and narrow-minded commitment to one’s cause, even if it is unjust.
This is all very ugly. We all know who people who insatiably pursue victory in all life’s pursuits. We recoil from those who seek in all things to defeat us. True, sometimes we all enjoy competing for accolades and laurels, whether in games or in life. But there is a limit beyond which we refuse to compete for decency’s sake. Those who compete in everything come off as barbaric and swinish, even if they ultimately win. There is something disgustingly selfish about an endless thirst for victory. After all, victory implies a violent struggle for domination. That is a primal, overweening, animalistic impulse. If we live in a civilized community, we seek to avoid coarse brutishness. Yet the insatiable thirst for victory requires exactly that. Those who publicly broadcast and flaunt their “victories”—like so many law firms—appear wretchedly selfish, even gluttonous and shameless. After all, they are advertising their ability to struggle, fight, brutalize and ultimately dominate their opponents in savage conflicts. That is something Genghis Khan might do, not someone who claims to live in a civilized community.
I think lawyers should excise “victory rhetoric” from their vocabulary. “Victory rhetoric” stems from war. In my view, law should replace armed conflict, not imitate it. But this might be asking too much. After all, even “civilized” human beings retain a lurking instinct to dominate their fellow men. They like the euphoria that springs from “victory,” whether in war, sport or commerce. This is why so many things in our lives—including the law—are “gamelike.” Victory in games provides a primal, emotional charge that humans crave. If they can’t get an emotional charge from battle and physical supremacy over other men, they turn to substitute sources, like games, careers and other competitive fields. All these things provide an opportunity to dominate others, even if without violence.
Yet there is nothing noble about “pursuing victory” and the basely euphoric emotions associated with it. Saint Augustine wrote extensively about games and competition in his Confessions. He confessed before God that he routinely pursued the bestial emotions that flowed from “victory in games” as a child: “In competitive games, I loved the pride of winning…even in [these children’s games] I was overcome by a vain desire to win and was often guilty of cheating. Any breach of the rules I would not tolerate and, if I detected it, would fiercely denounce it, though it was exactly what I was doing to others.” Confessions, at pp. 12, 22 (Oxford University Press 1992). Tellingly, Augustine observed that children are not the only ones who seek “victory in games.” He writes: “Behavior does not change when one leaves behind domestic guardians and schoolmasters, nuts and balls and sparrows.” Id. at p. 22. Rather, adults play games, too, and they seek the same base emotions as children. Just like children at play, they cheat, manipulate rules and engage in hypocrisy. He writes: “[The] amusement of adults is called business.” Id. at 12.
Against that background, should lawyers really crow about their “victories?” Are they no better than children? In sum, we should be very wary about transforming life’s pursuits into competitive games. When we do, we lower ourselves into something resembling animal squalor. I find it both sad and ironic that lawyers—through their ugly “victory rhetoric”—bring the law down to the level of children’s games.
I thought we had come further than this as a civilization. I thought law was supposed to elevate us from violent competitions. Apparently not, at least in the American “legal market.” It’s all just a “win-loss column.” Reason and principle have nothing to do with it, especially if you get an “L” for following them. When you thirst for victory, you do anything for a “W.” Principle is an impediment on that path, not an advantage.
Law firm websites amuse me. I get priceless satirical material from them. Generally, they take themselves extremely seriously and want to show that they are “winners.” They toss around words like “success,” “results,” “every time,” “reliable,” “professional,” “result-oriented,” “highly successful,” “preeminent,” “unique,” “client-focused,” “team spirit,” “effective” and “experienced.” This all makes me laugh because I know what law firms are like. There is nothing rarefied or glorious about them. They are profit mills in which lawyers pool their efforts to twist the law in their favor. Their “experience,” “results” and “success” flow from their dogged ability to wear down their opponents, then either make money or save money for their clients. For all concerns and purposes, American law practice is an elaborate game. One side wins. The other loses. It is adversarial. And it is seethingly bitter, as all competitive games are.
Big law firms like to report their “recent victories.” After all, “victories” show that the law firm has “won many games,” and potential clients want to win “their game,” too. When betting on a sports team, you want to choose the team most likely to win. You can tell whether a team is more likely to win if you know how often they have won in the past. A law firm’s “past victories” create the impression that it can defeat the opposition again, make money and deliver “success” to a new client. The “victory” metaphor is sport-like, even warlike.
But is law practice supposed to be sport-like? Are legal problems really nothing more than games to be manipulated and won? Or are they miniature wars in which the “enemy” must be hunted down and destroyed? Is this really appropriate rhetoric? After all, law is supposed to provide a rational framework in which to resolve civil disputes. It is supposed to provide reasonable, neutral rules by which to adjudicate problems that might otherwise spur violence. Civilizations invented law to neutralize private violence among citizens intended to redress perceived grievances. In that sense, there is nagging irony in the assertion that lawyers should pursue “victory” for their clients. If law is just and neutral, results should flow as a matter of principle, not as a matter of martial triumph. Law, in other words, is supposed to replace armed conflict as a means to solve problems. Yet the rhetoric of “winning” and “victory” suggests that law is no different from uncivilized, violent struggle. Armies win “victories” by killing those who oppose them in battle. Is this what we expect from lawyers in their “legal battles?”
Let us examine the word “victory.” The word has a decidedly martial connotation. There is nothing detached or nonviolent about it; it involves prevailing over another person or group after a fierce competition or struggle. According to Webster, “victory” means: “1. final and complete supremacy or superiority in battle or war; 2. a specific military engagement ending in triumph; or 3. success in any contest or struggle involving the defeat of an opponent or the overcoming of obstacles.” Webster’s New World College Dictionary (4th Ed.). Two of the three meanings deal specifically with war. The third mentions “success” after “struggling with” and “defeating” an “opponent” in a “contest” with “obstacles.” Victory is a hypercharged, even romantic word. It implies the euphoria that flows from armed triumph over an enemy. It feels good to defeat “opponents” and “overcome obstacles.” It feels good to display “complete supremacy or superiority” over an “enemy in battle or war.” There is nothing more primal than proving domination over an opponent through force. It is crude, animalistic and base. Strong lions overpower weaker ones. They win “victory” over their competitors after a “struggle for supremacy.”
But should lawyers be no different than lions in the wild? Or conquering generals bent on defeating their opponents in battle? I thought law was supposed to elevate us from such violent impulses. I thought law was supposed to replace war with rational principle and reasonable discussion. By using the word “victory” to describe legal “success,” however, lawyers debase themselves. They misunderstand the law. They use it as an arena or a battlefield, not as a rational platform for resolving differences. They approach legal questions like battles, not as opportunities to show their civilized ability to transcend warlike thinking. “Victory” is alluring because everyone likes to “dominate,” “defeat” and “succeed” over a recalcitrant foe. But the question remains: Is law really the right forum to pursue that quest?
Perhaps it is. In the English legal tradition, after all, law functions in an “adversary capacity.” Two sides “face off” against each other. Each side has diametrically opposed interests. One wants land; the other one refuses to give it up. One wants compensation for an injury; the other one refuses to pay. One claims he had a contract; the other says there was never a deal. No matter the facts, “adversary justice” places each side in a “competitive” position. The law assumes that people will make the best arguments—and, ironically, “tell the truth”—in order to satisfy their threatened self-interest. Lawyers step in to vindicate each side’s self-interest. They have only one goal: To defeat the opponent’s arguments and convince the court to grant whatever the client wants.
In this sense, we see that “adversary justice” is profoundly “game-like.” Just as two competitors yearn for “supremacy over the other” in a game, two sides in a legal dispute square off to achieve the same thing. Just as sportsmen must adapt their play to acknowledged rules in their quest for victory, lawyers, too, must contend with “court procedures,” “discovery protocols” and various other “steps” on the road to ultimate success. Each side tries to manipulate the rules to obtain an edge over the other. After all, when “victory” is at stake, you do everything you can to increase your chances to win. In the “adversary system,” competition is fierce. After all, only one side can win; and someone has to lose, too. When money is on the line, the gloves come off. Victory becomes an obsession. Just as two generals struggle violently to obtain an edge over each other in battle, so too do two lawyers savagely grapple with one another for the court’s favor. In all these cases—games, war and “adversary justice”—the breathless quest for victory engenders ruthless competition and narrow-minded commitment to one’s cause, even if it is unjust.
This is all very ugly. We all know who people who insatiably pursue victory in all life’s pursuits. We recoil from those who seek in all things to defeat us. True, sometimes we all enjoy competing for accolades and laurels, whether in games or in life. But there is a limit beyond which we refuse to compete for decency’s sake. Those who compete in everything come off as barbaric and swinish, even if they ultimately win. There is something disgustingly selfish about an endless thirst for victory. After all, victory implies a violent struggle for domination. That is a primal, overweening, animalistic impulse. If we live in a civilized community, we seek to avoid coarse brutishness. Yet the insatiable thirst for victory requires exactly that. Those who publicly broadcast and flaunt their “victories”—like so many law firms—appear wretchedly selfish, even gluttonous and shameless. After all, they are advertising their ability to struggle, fight, brutalize and ultimately dominate their opponents in savage conflicts. That is something Genghis Khan might do, not someone who claims to live in a civilized community.
I think lawyers should excise “victory rhetoric” from their vocabulary. “Victory rhetoric” stems from war. In my view, law should replace armed conflict, not imitate it. But this might be asking too much. After all, even “civilized” human beings retain a lurking instinct to dominate their fellow men. They like the euphoria that springs from “victory,” whether in war, sport or commerce. This is why so many things in our lives—including the law—are “gamelike.” Victory in games provides a primal, emotional charge that humans crave. If they can’t get an emotional charge from battle and physical supremacy over other men, they turn to substitute sources, like games, careers and other competitive fields. All these things provide an opportunity to dominate others, even if without violence.
Yet there is nothing noble about “pursuing victory” and the basely euphoric emotions associated with it. Saint Augustine wrote extensively about games and competition in his Confessions. He confessed before God that he routinely pursued the bestial emotions that flowed from “victory in games” as a child: “In competitive games, I loved the pride of winning…even in [these children’s games] I was overcome by a vain desire to win and was often guilty of cheating. Any breach of the rules I would not tolerate and, if I detected it, would fiercely denounce it, though it was exactly what I was doing to others.” Confessions, at pp. 12, 22 (Oxford University Press 1992). Tellingly, Augustine observed that children are not the only ones who seek “victory in games.” He writes: “Behavior does not change when one leaves behind domestic guardians and schoolmasters, nuts and balls and sparrows.” Id. at p. 22. Rather, adults play games, too, and they seek the same base emotions as children. Just like children at play, they cheat, manipulate rules and engage in hypocrisy. He writes: “[The] amusement of adults is called business.” Id. at 12.
Against that background, should lawyers really crow about their “victories?” Are they no better than children? In sum, we should be very wary about transforming life’s pursuits into competitive games. When we do, we lower ourselves into something resembling animal squalor. I find it both sad and ironic that lawyers—through their ugly “victory rhetoric”—bring the law down to the level of children’s games.
I thought we had come further than this as a civilization. I thought law was supposed to elevate us from violent competitions. Apparently not, at least in the American “legal market.” It’s all just a “win-loss column.” Reason and principle have nothing to do with it, especially if you get an “L” for following them. When you thirst for victory, you do anything for a “W.” Principle is an impediment on that path, not an advantage.
Friday, August 7, 2009
THE DISAGREEABLE ASSHOLES' LEAGUE FOR TOTAL STRESS, PROFESSIONAL SUCCESS AND, BY THE WAY, FUCK YOU, TOO
By : Ms. D. Samantha Crabtree-Farkingbeech, Esq., Partner, Cunting, Snidewell, Screech & Dourpott, LLP, a Fortune 250 Law Firm Specializing in Client Service to the Software Industry; J.D., Harvard Law School summa cum laude (1990); Author, “Work is the First Word in Work-Life Balance,” (an American Bar Association Publication)(2008); Voted Best Litigator, Atlanta, Georgia Bar Association; Married; Mother of two.
God fucking damn it. What the hell do you want? Can’t you see I’m in a hurry? I’ve got a meeting in five minutes. Do you think I have time to sit down and talk to you about this? Maybe you didn’t notice, but it is a weekday; I’ve got deadlines. If I don’t call Dick Henry back in five minutes we could lose four fucking million in fees. And I’ll be damned if I let that happen. Not on my watch. Shit, now my phone is ringing again. Who the fuck is it?
I didn’t make partner in this law firm being nice. If you want to succeed here, “being nice” is not an option. I didn’t bill 4100 hours last year and set a revenue record kissing ass or being polite to people. Sure, maybe a smile here and there for a judge or a client is OK. But once you start working cases, you’d better hang up your nice hat and start acting like a winner. Winners don’t ask; they tell. When opposing counsel asks for a delay because their witness is running late, you tell them: “Fuck no. We had an agreement. You signed it.” Then you make phone calls and yell at people for costing you time. Basically, you’ve got to put some gravel in your voice, break out your BlackBerry® and start telling some junior associate that they have their head up their ass because time is ticking.
Yeah, I’m stressed. Yeah, I take Tums. It’s stressful trying to win cases for software companies, especially when they have all kinds of dirty laundry to hide. Do you know how difficult it is to sift through 40 million pages looking for some damning admission some low-level programmer made in 1993? Do you know how difficult it is explaining to a judge how you’re going to catalogue 700,000 boxes of documents on some custom-made computer program? You spend more time defending your dumb-ass IT staff than talking about the case. At least you don’t have to talk about the law. The law doesn’t win cases. Management does. And management is stressful. Do you know what it’s like to take 230 phone calls every 16 hours? Do you know what it’s like trying to keep everyone’s name straight? Have you ever been so busy that you can’t even squeeze in time to take a shit? Welcome to my life.
But I don’t regret anything. I came a long way to get where I am now. I’m proud of myself. Not everyone can be a partner at this law firm. You need to take hits for the team in order to make it here. You need to handle stress every day. You need to juggle 14 different tasks at once, yet somehow still bring in new clients, win existing cases and cover up negative information about old clients. That takes serious talent. It’s not easy to remember every single fax and email you sent in May 2007. They all sort of blend together after a while. But that’s what separates the women from the girls: Women remember every piece of paper that ever crossed their desks; girls forget phone conversations two minutes after they end. You can’t pull anything over my eyes. If I see something once, I remember it. If I hear you say something, don’t try to lie to me later, because I remember everything. I can even remember if you used the word “of” in 2004. That’s what makes me a killer lawyer: I remember what people say. Yeah, it’s stressful. But it sure pays off.
I started the Disagreeable Assholes’ League for Total Stress, Professional Success and, By the Way, Fuck You Too in 2005. I started the party because successful people like me need a real political voice. We don’t have time to sit around and debate political topics. We have copies to make, depositions to take and phone calls to return. We don’t even have time to screw our husbands on Sunday afternoons, let alone talk about health care, environmental protection or voting rights. Yet we deserve to be heard because we are successful Americans. Just because we spend every day working our asses off at high-end law firms doesn’t mean we don’t exist.
We exist, all right. And we’re damn important, too. We believe it’s time for people to know just how important Disagreeable Assholes are in this country. We believe all Americans should know what it takes to achieve professional success. We believe all Americans should understand what it means to be a winning professional. We are determined to dispel the myth of slacker success. No one gets anywhere in this country being nice. No one sets billing records or revenue standards with smiles and apologies. In this law firm—and in every other respectable business enterprise—only winners survive. Winners are not just assholes—they are disagreeable assholes. Anyone can be an asshole. But not everyone can be sufficiently disagreeable to achieve professional success. Assholes complain, whine and make things difficult on everyone around them. Disagreeable assholes do all that plus cite legal rules, refuse to show mercy, reject appeals and never experience joy. Most importantly, disagreeable assholes enjoy arguing, fighting, resisting and contesting anyone who stands in their way.
For us, being “disagreeable” is a way of life. We do not feel good about anything. We fight everybody and everything, all the time. We don’t stop until we’ve been paid. We are always anxious, stressed, angry, pissy, vengeful, uncompromising, unforgiving, devious, nefarious and mean. We do not agree on anything; that’s what makes us disagreeable. We disagree on where to go to lunch, what to do on Thanksgiving and how best to copy 40,000 documents. We disagree on how much to leave as a tip, how best to get to the airport and how to greet colleagues. And we especially disagree with any suggestions made by our opponents. If our opponents suggest holding a meeting in the Sheraton because it is close to our offices, we will disagree and insist that we hold the meeting somewhere further away. If our opponents suggest that we split phone costs on a case, we will disagree and threaten to obtain a court order imposing full liability on them. We disagree for disagreement’s sake. In this business, being an asshole is not enough; one must also be disagreeable.
People say that “disagreeable” is a negative word. They even say that “assholes” are not pleasant. We disagree with both assessments. In our view, our critics fail to understand that professional success depends on assholes; more particularly, it depends on disagreeable assholes. No one achieves fantastic financial success in the United States without bitterly fighting over everything. Professional success means merciless combat every day until either financial victory or heart failure. In professional life, competition abounds. Everyone is out to take your money. Everyone plots ways to steal your business. Everyone is conspiring, eavesdropping and conniving—even supposed friends. Cowards and nice folks don’t stand a chance. Cowards and nice folks let opponents walk all over them. But disagreeable assholes sniff out treachery at every turn. They suspect everybody and everything. They scream, yell and threaten until the problem subsides. We are problem solvers.
We say to our critics: How is that negative? Wouldn’t you protect your business with all your strength? Our critics can complain all they want that we are “hard to get along with” because we are “disagreeable assholes.” But frankly we don’t give a shit. We’re the top revenue producers. We’re the partners. We won. They didn’t. They can go ahead and be nice. Who’s living in the villa, and who’s renting the crappy studio in Queens? Let our critics complain. In our book, being labeled a disagreeable asshole is a compliment, not a pejorative.
Our critics also say that stress is bad. They say that professional success is important, but not when it imposes excessive stress. We disagree. Disagreeable assholes like us know that stress is a badge of honor. We work for a living. We don’t screw around or wait for 5 o’clock. No, we stay in the office all night and beyond. We sacrifice everything to win, even our health. We don’t worry about the husband and kids. They can take care of themselves. When it comes to professional success, winning is more important than family and health. True, winning is difficult. Competing for victory raises emotions and causes anxiety. But so what? To be a winner you need to compete like a winner. That means relishing stress, not complaining about it. We have high blood pressure. We get ulcers. We sigh all the time. We shout. We snap at people. We throw things. We castigate and insult. We stamp our feet and tremble. We break out in sweats and guzzle coffee at midnight. We lose our hair at 30. We get hemorrhoids. We eat fast food. We worry constantly whether we’ll make deadlines. And we are fabulously successful.
This is just how we roll. It pays off, too. Winners don’t relax; they stress out. Stressing out wins cases and makes money. What is so bad about that? When all is said and done, people remember the disagreeable asshole who screamed and threw binders around at 4 AM before the big filing, not the chilled-out copy boy who went home at 4:45 PM the day before. Put simply, relaxation and tranquility do not yield professional success. In that light, we are proud to be stressed. I might have ulcers and hemorrhoids. You don’t; but who’s the partner with the $1,400,000 annual salary? I’d rather be a disagreeable, stressed-out asshole with a seven-figure salary than some relaxed nice guy who struggles to pay cell phone bills and travels by bus.
We are the Disagreeable Assholes’ League for Total Stress and Professional Success—and by the way, fuck you, too. We include that final phrase because we really don’t care what anyone says about us. We are in charge. We are more successful and richer than our critics. Our critics do not want to adopt our lifestyle, so they just resent us. We have a word for them: If you cared about your career, you would act like us. We didn’t tell you to be polite and friendly. You made a choice to be agreeable. We made a choice to be disagreeable. Our choice brought us stress and success. Your choice brought you relaxation and poverty. We employ you; you work for us. So you can criticize our lifestyle all you want. It won’t change who’s in charge. Disagreeable assholes rule this world. Nice guys like you just follow along and try not to get run over.
But you don’t have to stay polite and poor. If you really want to make a difference in this world, you can stop being nice and start acting like a disagreeable asshole. You can be a winner, too. Stop insisting on “work-life balance.” Start competing. Start mistrusting and exploiting. Start swearing and sighing. Get your calendar straight through 2011. Start yelling at people. Stop tolerating incompetence and tardiness. Make people afraid when you walk into a room. Get some stress in your life. You can do it. You need to stop thinking that stress is bad. Stress makes fortunes, and fortunes yield success. The choice is yours.
Thursday, August 6, 2009
THE PRO BONO FARCE : ANOTHER SHAM IN LAW PRACTICE
AN ESSAY
I do not reserve many kind words for the legal profession. In essay after essay, I have criticized “modern lawyering” for its relentless fixation on commercial gain over principle. At the same time, I have written ruthless satires involving “modern lawyering” because “successful lawyers” lend themselves to hypocrisy on many levels. Satire works best when it targets powerful people who claim to advance principle, yet betray it whenever it is profitable. Law practice provides endless opportunities to do exactly that. While the law may enshrine good principles, those who practice it have many incentives to betray those principles. Perhaps this is the necessary result of a legal system that makes both sides “adversaries.” Or perhaps it is just because law is just another business; and all businesses are the same. No matter what the reason, my cynical powers come into sharp focus when analyzing “lawyers’ follies.”
Sometimes I think I will exhaust the rhetorical well when it comes to law practice. But just when I think the well is dry, I stumble upon some new aspect that revives the flow. In short, lawyers are a satirist’s dream. They just keep on giving. True, there are some lawyers out there who truly want to make a difference in society. I do not want to pillory them. Of course, they earn my respect because they actually want to vindicate larger principles, not merely enrich a private law firm. Their motivation differs from the average private attorney. These “public interest” lawyers do not work to get rich; they work to do justice. Private lawyers, by contrast, work to get rich; and they seek justice only to the extent that it appeases their clients’ financial appetites. Yet this is the great tension between law and justice. Justice transcends. It exists without regard to private interest or “advocacy.” It cannot be warped, tailored or obscured to reward one party over another. Private lawyers, however, warp, tailor and obscure for a living. Their chief duty runs to their client, not to justice. They do not want abstract justice; they want to win for their clients, whether or not the result is abstractly “just.”
Still, if you walk into a law firm’s office, you might actually think that lawyers care about justice. Law firms care about winning and making a profit. But they know that doesn’t sound very noble. To attract new business, they can’t honestly tell prospective clients: “Well, we’re in this to win for you and bill the shit out of you in the process.” No, that is too blunt. In America, you can’t just volunteer your motivations like that, even if people really know what they are. Rather, you need to construct a public “veneer,” then let others whisper about “what you’re really after.” In discourse, lawyers want to project a lofty, cerebral image, not a cash-grubbing one. Even if everyone knows that lawyers are cash-grubbers, lawyers never publicly admit to it. Instead, lawyers take refuge in a fog of “elevated professional detachment.” They want outside observers to say: “These are intelligent, well-groomed, well-educated, skilled, successful men and women who understand the law and will work hard to secure justice for me.” That is the impression lawyers want to make when you step into a law firm.
Last week, I stepped into a well-respected law firm. “Well-respected” means that it ranks within the top 250 revenue producers in the United States as reported by a professional magazine called “The American Lawyer.” “Well-respected” is not some muddy, subjective appraisal related to integrity, honor or dedication to principle. No, according to the “American Lawyer” you only make the “well-respected” list if your firm brings in a certain dollar amount every year. You might deliver all the justice in the world, but if you can’t make the dollar cut, you don’t make the “well-respected list.” It was a beautiful lobby: Nice new furniture, immaculate marble floors, a brand new telephone system, glass doors, ice water pitchers everywhere, expensive-looking art on the beige stone walls, gorgeous flower arrangements in sleek purple vases. To the uninitiated visitor, it would seem that these lawyers did very well by advancing justice. After all, lawyers represent the law, and the law is good, right?
What would make an uninitiated visitor think that? This “well-respected” law firm did more than merely tastefully decorate its lobby. It also selectively placed two magazines in the waiting area. One magazine discussed the “Law Firm Charitable Giving Foundation.” The other discussed the firm’s “Commitment to Pro Bono Representation.” Each magazine opened with a statement from the firm’s partners, claiming that the firm does not give money to charity or volunteer its services to indigents for “public relations” purposes. Rather, according to these statements, the firm gives money to charity and renders free legal services to the poor because it “wants to give back to the community” and “advance justice.”
Yet “giving back to the community” and “advancing justice for the poor” would not have decorated the lobby. Nor would it have paid the rent in the massive Manhattan office tower.
Did these lawyers expect me to believe that they care about “the community” and “justice?” What unabashed hypocrisy. Pro bono legal work is a wonderful thing. But major law firms don’t do it because they “care” about justice. They do it for precisely the reason they say they don’t: Public relations. Viewed logically, why would they plaster magazines trumpeting their pro bono work all over the visitors’ area? Judged objectively, it appears the firm wants people to know about its pro bono “commitment.” In turn, it likely expects them to say: “What a compassionate firm,” then send them paying business. In short, major law firms undertake pro bono cases for public relations and advertising reasons. Pro bono is not really “free legal work.” It is an investment calculated to seduce paying clients later. It conveys a false impression that lawyers deeply care about “abstract justice,” when in fact they merely want more paying clients to come their way. In brief, lawyers use pro bono as a marketing ploy, not to “placate their conscience,” “serve the community” or “do justice.”
At this point, someone will object: “You are too cynical. Maybe some private lawyers really want to help others.” I counter this objection with personal experience. I interviewed with several large law firms in Chicago several years ago. During those interviews, I repeatedly asked about the firms’ commitment to pro bono work because I actually did care about justice. I wanted to handle cases involving substantial social issues, not just royalties, supply contracts, fees and lost business. My questions made my interviewers uncomfortable. They mentioned that their firms had a “pro bono benchmark” every year, but quickly changed the subject. They did not seem very enthused by my desire to “waste firm time” on cases that did not yield a profit. I did not get jobs at these firms. In hindsight, I’m grateful I didn’t.
Pro bono work reflects lawyers’ calculated efforts to project an “image” at odds with their commercial nature. Despite all explanations to the contrary, private lawyers do not practice law to secure justice or to “make society a better place.” Rather, private lawyers have one goal in mind: To make more money this year than last year. In law practice, lawyers make money by winning legal disputes, or at least perpetuating them for as long as possible. While legal disputes involve supposedly neutral legal rules and doctrines, the business-minded lawyer sets about manipulating those rules in order to “secure favorable results” for his client. Those “results” generally involve two things: Either (1) Winning a monetary sum; or (2) Saving a monetary sum. “Doing justice” may serve those goals. But often it doesn’t. If it comes between “securing favorable results” and “doing justice,” virtually every lawyer in America will opt for the former—provided, of course, he does not risk his own liberty or professional standing as measured by technical rules.
Against this background, pro bono work offers no direct pathway to commercial success. At best, it provides an indirect one: Business-minded lawyers can trumpet their “pro bono commitment” to draw in paying clients with self-serving tales of “their battles for justice.” Yet no matter how they spin it, their motivation is the same: Commercial success. If projecting an image that the lawyer is “committed to justice” leads to greater commercial success, then the lawyer will take a few pro bono cases for “public relations” purposes. And they have the gall to say they do not do pro bono for that reason.
Any other explanation for lawyers’ pro bono work is facetious. If lawyers started taking cases for “justice only,” legal practices nationwide would collapse. For better or worse, lawyers must adapt their behavior—and their motivations—to commercial reality. Commercial reality in a free market system means “staying afloat.” Staying afloat means making enough money to pay all expenses, then making a decent profit. Pro bono brings in no money. You can’t pay expenses or make a profit without money. In this sense, lawyers have a compelling disincentive to handle pro bono work. Every minute representing an indigent beggar is a minute lost billing an aggrieved pharmaceutical company at $500 an hour. And every $500 lost is $500 that cannot be used to pay expenses or contribute to the partners’ fund. While representing the beggar may result in justice, it is not commercially prudent. Representing the pharmaceutical company, by contrast, is not just prudent; it is the economically reasonable thing to do. In that light, commercial reality dissuades lawyers from pro bono work. Justice is all well and good. But paying rent and salaries is better. Money gets you on the “American Lawyer” Top 500 list, not justice.
Yet what is law all about? Society creates law for some beneficial purpose, not merely to secure money for private interests. But lawyers use law to do exactly that. What happens to the beneficial purposes? I understand that lawyers want to make money. Commerce forces everyone in society to think about how to cope with unending financial obligations. I think a life dedicated to money is unsavory and unrewarding. But I reserve my harshest criticism for lawyers because they pursue financial success by applying rules that should stand for something beyond private commercial gain. Lawyers want people to believe they use law to “fight for justice,” when in fact they use law to win, no matter where justice really lies.
In this sense, lawyers are no different from any other hawker or hustler on the street. They merely use bigger words and reference inscrutable books to sell their wares. They know that the public associates the law with “good” and “justice.” They actively cultivate an image calculated to convince the public that they, too, care about “good” and “justice.” Yet in our commercial world, “good” and “justice” are not profitable courses. On the other hand, appearances are more important than reality in many situations. If the appearance of “good” and “justice” brings in more business, then lawyers will adopt it. Lawyers’ “commitment to pro bono”—along with their advertising about it—is all part of a calculated effort to generate a convincing “appearance.”
Who needs to “be” just when it is sufficient to simply “seem” just? No one can afford to “be” just, can they?
I do not reserve many kind words for the legal profession. In essay after essay, I have criticized “modern lawyering” for its relentless fixation on commercial gain over principle. At the same time, I have written ruthless satires involving “modern lawyering” because “successful lawyers” lend themselves to hypocrisy on many levels. Satire works best when it targets powerful people who claim to advance principle, yet betray it whenever it is profitable. Law practice provides endless opportunities to do exactly that. While the law may enshrine good principles, those who practice it have many incentives to betray those principles. Perhaps this is the necessary result of a legal system that makes both sides “adversaries.” Or perhaps it is just because law is just another business; and all businesses are the same. No matter what the reason, my cynical powers come into sharp focus when analyzing “lawyers’ follies.”
Sometimes I think I will exhaust the rhetorical well when it comes to law practice. But just when I think the well is dry, I stumble upon some new aspect that revives the flow. In short, lawyers are a satirist’s dream. They just keep on giving. True, there are some lawyers out there who truly want to make a difference in society. I do not want to pillory them. Of course, they earn my respect because they actually want to vindicate larger principles, not merely enrich a private law firm. Their motivation differs from the average private attorney. These “public interest” lawyers do not work to get rich; they work to do justice. Private lawyers, by contrast, work to get rich; and they seek justice only to the extent that it appeases their clients’ financial appetites. Yet this is the great tension between law and justice. Justice transcends. It exists without regard to private interest or “advocacy.” It cannot be warped, tailored or obscured to reward one party over another. Private lawyers, however, warp, tailor and obscure for a living. Their chief duty runs to their client, not to justice. They do not want abstract justice; they want to win for their clients, whether or not the result is abstractly “just.”
Still, if you walk into a law firm’s office, you might actually think that lawyers care about justice. Law firms care about winning and making a profit. But they know that doesn’t sound very noble. To attract new business, they can’t honestly tell prospective clients: “Well, we’re in this to win for you and bill the shit out of you in the process.” No, that is too blunt. In America, you can’t just volunteer your motivations like that, even if people really know what they are. Rather, you need to construct a public “veneer,” then let others whisper about “what you’re really after.” In discourse, lawyers want to project a lofty, cerebral image, not a cash-grubbing one. Even if everyone knows that lawyers are cash-grubbers, lawyers never publicly admit to it. Instead, lawyers take refuge in a fog of “elevated professional detachment.” They want outside observers to say: “These are intelligent, well-groomed, well-educated, skilled, successful men and women who understand the law and will work hard to secure justice for me.” That is the impression lawyers want to make when you step into a law firm.
Last week, I stepped into a well-respected law firm. “Well-respected” means that it ranks within the top 250 revenue producers in the United States as reported by a professional magazine called “The American Lawyer.” “Well-respected” is not some muddy, subjective appraisal related to integrity, honor or dedication to principle. No, according to the “American Lawyer” you only make the “well-respected” list if your firm brings in a certain dollar amount every year. You might deliver all the justice in the world, but if you can’t make the dollar cut, you don’t make the “well-respected list.” It was a beautiful lobby: Nice new furniture, immaculate marble floors, a brand new telephone system, glass doors, ice water pitchers everywhere, expensive-looking art on the beige stone walls, gorgeous flower arrangements in sleek purple vases. To the uninitiated visitor, it would seem that these lawyers did very well by advancing justice. After all, lawyers represent the law, and the law is good, right?
What would make an uninitiated visitor think that? This “well-respected” law firm did more than merely tastefully decorate its lobby. It also selectively placed two magazines in the waiting area. One magazine discussed the “Law Firm Charitable Giving Foundation.” The other discussed the firm’s “Commitment to Pro Bono Representation.” Each magazine opened with a statement from the firm’s partners, claiming that the firm does not give money to charity or volunteer its services to indigents for “public relations” purposes. Rather, according to these statements, the firm gives money to charity and renders free legal services to the poor because it “wants to give back to the community” and “advance justice.”
Yet “giving back to the community” and “advancing justice for the poor” would not have decorated the lobby. Nor would it have paid the rent in the massive Manhattan office tower.
Did these lawyers expect me to believe that they care about “the community” and “justice?” What unabashed hypocrisy. Pro bono legal work is a wonderful thing. But major law firms don’t do it because they “care” about justice. They do it for precisely the reason they say they don’t: Public relations. Viewed logically, why would they plaster magazines trumpeting their pro bono work all over the visitors’ area? Judged objectively, it appears the firm wants people to know about its pro bono “commitment.” In turn, it likely expects them to say: “What a compassionate firm,” then send them paying business. In short, major law firms undertake pro bono cases for public relations and advertising reasons. Pro bono is not really “free legal work.” It is an investment calculated to seduce paying clients later. It conveys a false impression that lawyers deeply care about “abstract justice,” when in fact they merely want more paying clients to come their way. In brief, lawyers use pro bono as a marketing ploy, not to “placate their conscience,” “serve the community” or “do justice.”
At this point, someone will object: “You are too cynical. Maybe some private lawyers really want to help others.” I counter this objection with personal experience. I interviewed with several large law firms in Chicago several years ago. During those interviews, I repeatedly asked about the firms’ commitment to pro bono work because I actually did care about justice. I wanted to handle cases involving substantial social issues, not just royalties, supply contracts, fees and lost business. My questions made my interviewers uncomfortable. They mentioned that their firms had a “pro bono benchmark” every year, but quickly changed the subject. They did not seem very enthused by my desire to “waste firm time” on cases that did not yield a profit. I did not get jobs at these firms. In hindsight, I’m grateful I didn’t.
Pro bono work reflects lawyers’ calculated efforts to project an “image” at odds with their commercial nature. Despite all explanations to the contrary, private lawyers do not practice law to secure justice or to “make society a better place.” Rather, private lawyers have one goal in mind: To make more money this year than last year. In law practice, lawyers make money by winning legal disputes, or at least perpetuating them for as long as possible. While legal disputes involve supposedly neutral legal rules and doctrines, the business-minded lawyer sets about manipulating those rules in order to “secure favorable results” for his client. Those “results” generally involve two things: Either (1) Winning a monetary sum; or (2) Saving a monetary sum. “Doing justice” may serve those goals. But often it doesn’t. If it comes between “securing favorable results” and “doing justice,” virtually every lawyer in America will opt for the former—provided, of course, he does not risk his own liberty or professional standing as measured by technical rules.
Against this background, pro bono work offers no direct pathway to commercial success. At best, it provides an indirect one: Business-minded lawyers can trumpet their “pro bono commitment” to draw in paying clients with self-serving tales of “their battles for justice.” Yet no matter how they spin it, their motivation is the same: Commercial success. If projecting an image that the lawyer is “committed to justice” leads to greater commercial success, then the lawyer will take a few pro bono cases for “public relations” purposes. And they have the gall to say they do not do pro bono for that reason.
Any other explanation for lawyers’ pro bono work is facetious. If lawyers started taking cases for “justice only,” legal practices nationwide would collapse. For better or worse, lawyers must adapt their behavior—and their motivations—to commercial reality. Commercial reality in a free market system means “staying afloat.” Staying afloat means making enough money to pay all expenses, then making a decent profit. Pro bono brings in no money. You can’t pay expenses or make a profit without money. In this sense, lawyers have a compelling disincentive to handle pro bono work. Every minute representing an indigent beggar is a minute lost billing an aggrieved pharmaceutical company at $500 an hour. And every $500 lost is $500 that cannot be used to pay expenses or contribute to the partners’ fund. While representing the beggar may result in justice, it is not commercially prudent. Representing the pharmaceutical company, by contrast, is not just prudent; it is the economically reasonable thing to do. In that light, commercial reality dissuades lawyers from pro bono work. Justice is all well and good. But paying rent and salaries is better. Money gets you on the “American Lawyer” Top 500 list, not justice.
Yet what is law all about? Society creates law for some beneficial purpose, not merely to secure money for private interests. But lawyers use law to do exactly that. What happens to the beneficial purposes? I understand that lawyers want to make money. Commerce forces everyone in society to think about how to cope with unending financial obligations. I think a life dedicated to money is unsavory and unrewarding. But I reserve my harshest criticism for lawyers because they pursue financial success by applying rules that should stand for something beyond private commercial gain. Lawyers want people to believe they use law to “fight for justice,” when in fact they use law to win, no matter where justice really lies.
In this sense, lawyers are no different from any other hawker or hustler on the street. They merely use bigger words and reference inscrutable books to sell their wares. They know that the public associates the law with “good” and “justice.” They actively cultivate an image calculated to convince the public that they, too, care about “good” and “justice.” Yet in our commercial world, “good” and “justice” are not profitable courses. On the other hand, appearances are more important than reality in many situations. If the appearance of “good” and “justice” brings in more business, then lawyers will adopt it. Lawyers’ “commitment to pro bono”—along with their advertising about it—is all part of a calculated effort to generate a convincing “appearance.”
Who needs to “be” just when it is sufficient to simply “seem” just? No one can afford to “be” just, can they?
Friday, June 19, 2009
GET AN EDUCATION THAT WORKS : GET A DEGREE IN WINNING
AN EDUCATIONAL MESSAGE
By : Professor Victor A. Siegreich, Ph.D. in Victory Management, Winnings University of New Jersey; Senior Lecturer in Winning; Author, “I Just Want to Win : Getting Ahead in Life Fast,” Doubleday Publishers (New York 2004); Former Managing Member, Baldwin, Gorman & Slippings, LLC a statistical consulting firm serving Federal Reserve Banks.
Isn’t it about time you ended your losing streak in life? Haven’t you had enough setbacks, letdowns and heartbreaks? Aren’t you sick of being rejected from jobs and romantic partners? Basically, aren’t you just sick of losing? You’re probably asking yourself why you can’t muster a win in life. After all, you always followed the rules and lived to be fair. You respected other people and never cut the line. You thought that being nice and studying hard would lead you to success. You thought that decency and politeness would ultimately pay off in your life.
You were wrong. Your quest for simple decency let the other guy get the job. Your commitment to kindness and intellectual enrichment confused you while the other guy got the girl and made the money. But you aren’t beaten yet. You can come from behind to win at life. Winnings University can help you do it.
Here at Winnings, we offer education that works, not education that enriches. First and foremost, we teach that life is a game that can be won. It has rules and customs. It offers rewards. Just like any game, a person who knows the rules—and who knows how to exploit them easily—will always come out ahead. More importantly, life is a game with competitors. Everyone is racing for the same goal; and there can only be one winner at a time. At Winnings, we remind our students that life is a game that must be won. And we teach our students that results matter, because winning is the ultimate result.
Traditional education fails to appreciate results. In liberal arts colleges, for example, professors teach that knowledge is valuable in itself because it “enriches the mind” and “gives its own psychic rewards.” This is nonsense. In fact, traditional education dooms untold students to failure in life because they do not learn that life is a game. Rather, they learn that life is a “unique experience” that “everyone experiences differently.” They learn that “everyone is valuable, no matter his abilities” and actually do not feel bad when they lose at something. In short, traditional education does not teach students how to win.
This is fatally flawed thinking for many reasons. First, life is a competition. Even the animal kingdom reveals to us that organisms must compete for limited resources on this planet. We are not different from hyenas or birds. Bold birds get the catch; lazy ones do not. Second, life is about results, not process. Results mean winning. In the animal kingdom, winning means getting food and dominating other animals. So too among humans: For us, winning means getting money and employing other men to work to make us even more money. Third, life is not a “unique experience” where the “individual matters.” Quite the contrary, life is an easily understandable game with easily understandable rules. Everyone wants to win, and everyone can learn how to win. Everyone wants the same results. Process is irrelevant; results are everything. We know who wins and we know who loses. Traditional education tries to conceal these brutal truths by offering an elixir for failure in life. But at Winnings, we simply acknowledge the truth about life and teach our students accordingly.
At Winnings, we have a simple motto: “Winning matters, no matter how you play the game.” Contrary to Vince Lombardi’s apocryphal excuse for losing, winning is everything; how you play the game doesn’t really matter. After all, winners get things done. They take charge. They beat the losers and take what they win. Nobody hears from the losers. After they lose, they don’t matter. So when a winner wins, no one remembers how he did it. He gets to tell the story. In life, the winner literally takes all, including the right to tell others how he won. And once he wins, he can sit back and savor his victory. That is why it is absolutely essential to win in the first place. Without winning, you become a loser. And nobody listens to—or even remembers—a loser.
Sadly, most people are losers. But it is not their fault. Our educational system justifies and even laurelizes losing mentalities. By focusing on process rather than results, losers whine about fairness when they should be looking for creative ways to win the game. Additionally, losers become indignant when people they consider “stupid” somehow manage to outwit them at life’s game. Rather than asking themselves why they lost, they cross their arms and whine that they are entitled to success because they are smart. This is a losing mentality. And our educational system perpetuates it by fooling students into thinking that abstract knowledge is valuable.
Knowledge is not valuable unless it translates into winning. Theory is worthless unless it translates into winning practice. Thinking never won anything; doing did. At Winnings, we make our students understand this. We do not care for erudition, theory or overintellectualism. Rather, we stress that practical success and know-how are much more valuable than critical thinking. After all, thinking leads only to paralyzed rumination. Thinkers vacillate. Doers just get up and get things accomplished. In a competition between a thinker and a doer, it is obvious who will win. The doer will get up earlier, put in more hours and doggedly pursue his goal until it is done. He will not think about the purpose of the activity or his existential disgust with his lot. A thinker, by contrast, will half-heartedly attend to his work. He will spend his time moping and questioning things rather than ruthlessly suppressing the competition for the ultimate win. A doer will run circles around a thinker. Intelligence does not matter. In life, the more zealous competitor wins. At Winnings, we understand that.
We do not believe in enrichment. At Winnings, we teach our students the skills they need to defeat each other in life’s competitions. We do not delude them into thinking that merely “knowing more” and “thinking more deeply” will bring them success in life. In our educational philosophy, results are everything. If an “enriched mind” does not bring results, it is not “rich” at all. We would much rather cultivate an “unenriched mind” that gets the job done than an “enriched mind” that wastes time considering theoretical nonsense. To that extent, we do not teach art history, African-American studies, Native American Oral History, Color Use in Late Romantic Painting, literature, music studies, philosophy, Japanese Theater, American Cultural Development or Non-Profit Institutional Management courses. Instead, we teach “Shortcut Analysis,” “Believable Deception Management,” “Intimidation : Theory and Practice,” “Ethics are for Losers,” “The Loss Avoidance Practicum” and “Money as Goal : A Result-Oriented Approach.” Our courses teach valuable, practical skills that immediately translate into winning. We do not waste our time with knowledge that does not pay.
In America today, education is a serious investment. Many students assume crushing debt for the opportunity to study at college. We believe that students have a right to expect a return on their investment. That is why courses at Winnings arm students with the knowledge, skill and values they need to win at life. We teach them that morals and ethics do not apply when they must win. In fact, we teach that morals and ethics are serious handicaps in life’s competition. We teach them that it is perfectly normal to exploit others for financial gain. And we teach them that it is better to make a profit than to do the right thing.
By the same token, we also teach our students that many people do not like winners. To address this issue, we offer courses dealing with envious people. In life, losers become embittered and resentful. No one likes to lose, and losers get angry after a lifetime of losing. They channel their anger toward winners and even attempt to derail their successes in the future. To deal with these issues, we offer courses such as “Intermediate Grudge Dodging” and “Don’t Hate; Appreciate.” Our faculty knows how to foil angry losers. We are pleased to offer students a way to foresee losers’ antics. In sum, winners do not let losers divert their attention from winning.
Winnings University can give you the education you really want. No matter whether you are a struggling young professional or a youthful high school student who wants to be successful in life, Winnings offers programs tailored to meet your needs. We are here to teach you winning ways. We are here to help you stop thinking and start doing. We know that this is difficult. After all, we recognize that you have made your way through an educational system that taught you it is “OK to lose once in a while.” At Winnings, we will eradicate that mentality. We have no tolerance for losers; and you should have no tolerance for losing. At Winnings, we will teach you how to stop making excuses and how to get the most from people. We will teach you never to quit. We will teach you real determination. We will teach to be annoying and downright unbearable when you need to be. We will teach you to suspend your “friendliness,” “politeness” and “compassion” in order to ruthlessly crush and surpass your competition.
You would not be looking into Winnings if you did not like the way your life is going. We can understand that you might hesitate before deciding whether to study with us. After all, you probably think that friendliness, knowledge and fairness are good things. Perhaps you do not want to be a ruthless, result-oriented winner who only thinks about outdoing the competition in life. Well, if you want to be a loser, that’s your decision. Winners do not worry about these things. At Winnings, we teach our students to ignore their conscience and just win. Your conscience and your ethics are slowing you down. They stop you from doing what is necessary to win. Yet you wonder why you fail. Isn’t it obvious? You have a conscience, that’s why. You have ethics. You want to be fair. You want to treat others as you would have them treat you. But tell me the last time ethics helped you get a job. When did your conscience secure a merger deal? I’ll tell you when: It didn’t. When you were fair, did people treat you fairly in return? No, they didn’t. And they never will. Who do you think you are? Jesus Christ? He didn’t win at life, either. He was poor and ended up nailed to a cross. In a word, people want to win in this life. If that means treating you unfairly, well that’s what they will do. Conscience and ethics are for losers and saints. Losers and saints don’t win in this life.
At Winnings, we offer a way to end your losing streak. Stop complaining about the winners; be one. Stop tying your hands with ethics. Just shut up and start cutting corners like the winners do. Fight with both hands. Stop learning worthless facts about 17th Century Dutch painting and religion. Stop reading Shakespeare; he won’t pay your bills or make you wealthy. Learn something meaningful. Learn how to win. It’s about time you actually got something out of your education. At Winnings, you can. With us, you will learn that winning is better than knowledge. With a degree from Winnings, you are guaranteed to win in life. That’s what it’s all about. Our education will transform you. With time, study and effort, you will abandon unproductive behaviors such as ethics, conscience and fairness. With time, study and effort, you will learn to make every move count. You will learn to manipulate every rule and exploit every relationship. Your education will actually do something for you, not just make you “smart.” Again we say: What good is “smart” if you wind up a loser?
Take your life in a new direction. Get a degree in Winning, Victory, Conquest or Domination. You can do it if you try. Transform your life. Come from behind. Knock it out of the park. Dunk it. Sack it. Put it through the uprights. Sink the putt. It’s fourth and goal. It’s the bottom of the ninth and you’ve got a runner in scoring position. It’s time to step up and win. Swish, baby, swish…3-pointer.
Winning matters. It feels good. It pays. It’s valuable. Learn how to do it at Winnings University.
We offer financial aid to all those who qualify.
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