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Ways Of Doing

Reprinted with permission from the American Bar Association, The Journal of the Section of Litigation.

Has this ever happened to you? At your dinner table, you pass the mashed potatoes to a teenager to offer a second helping. “Would you like some more?” you ask generously. Smiling, your young companion responds: “No, I’m good.” How’s that? Is there anything wrong with this answer? It all seems rather standard these days, the typical breeziness and affability of the younger generation on display. But weren’t you taken aback? Did you puzzle over why? After all, it is hard to criticize your youngster for being impolite. Your gentle question has been acknowledged, and it has received an unquestionably pleasant reply. Nothing here would seem to violate the rules of courtesy. But something seems not quite right. There’s the absent “thank you,” of course, but, honestly, is there really anything amiss?

Well, maybe. Consider the difference, adding now a little emphasis, between what you expected and what you got. You were looking for “No, thank you.” What you got was “No, I’m good.” There is a subtle shift here. What was expected was an acknowledgment that you have done something worthy of appreciation by a tablemate, but you got an affirmation that the person to whom you’ve shown such consideration is in fine fettle, not to say eminently worthy. There is a change of focus, from your kind act to your subject’s physical, emotional, or moral state. In that respect, what has happened is characterized by a different attitude, almost imperceptibly changing the interaction from two people sharing some common feeling to a more individualistic concern for self, in this case the self of the youngster, not you.

Twaddle, cry the boobirds. This is just nitpicking, intellectual fussiness, old-fashioned pedantry. Really? Does it really make no difference what outlook on the world is reflected or being advanced, directly or indirectly, in ordinary discourse? Don’t the words tell you something about the underlying mind-set, which might manifest itself in other behaviors as well, and might a change in that mind-set promote different conduct? Words do make a difference, after all. As every lawyer knows, how you put things is often as important as, indeed is sometimes more critical than, what you say.

This is not, or not yet, to criticize one approach versus the other, only to remark on the difference. And, if you think words are too flimsy, consider this: In the 1950s, the most popular TV shows were sitcoms like Ozzie and Harriet and Leave It to Beaver, the content of which was summarized by the title of another such show, Father Knows Best. Today, it’s not just the titles that have changed; so has the underlying message. Try to find a TV show or a movie today in which the adults are anything less than completely clueless, the youth being those in the know. And as in art, so in life. Understanding, superior thinking, is now seldom viewed as the province of the old. To return to words for the moment, the popular trope that “50 is the new 30” reflects more than just a concern about aging. It implies that the earlier age is preferable, not the other way around. Contrast the attitude in Asian countries, where the youth still routinely defer to their elders. Older people are to be respected, even venerated, always allowed to walk through doorways first, much as used to be done for women by Western men. Now no one here defers to either.

It is very challenging to say how this change came about, or what it all means, which cause or trend was chicken and which egg, a vision of the apocalypse or small change. But whether the fashion in TV shows changed, resulting in a different popular view, or the popular mindset changed first, or some third alternative, there is more than a little at issue here. Again, the emphasis is on the difference, not on whether one approach is superior to the other. The great philosopher Thomas Hobbes once commented that certain kinds of manners are “small morals.” His point was that what ordinary habits one has in speech, and in behavior, privately and publicly, could be a small representation of, and also have an effect on, larger social issues. Is the current obsession with the young, with youth, and with youthfulness not such a social issue?

So much of life is not determined by rules, but by customs, ways of doing, which determine or elucidate both your attitude toward others and the character of society itself. The acclaimed author Amor Towles, in his wildly popular novel A Gentleman in Moscow, has explored the relationship of an aristocratic concern for what’s proper in dining, dress, and good taste, among other things, and one’s outlook on the world and life, showing the potentially powerful effect that what was once called good breeding can have on such weighty matters as love and politics. You are not exactly how you say things or what you dress or eat, but the former is much affected by, and has an impact on, the latter, even if you are otherwise within the bounds of acceptable social rules. Habits, manners, customs, ways of doing, not the letter of the law, often make the woman or the man.

Lawyers and Respect

And the lawyer too. We are all familiar with a lawyer who just always seems to command respect. Her good judgment is part of it, to be sure, and a record of success never hurts, but there’s something more than that too. It’s the way she conducts herself, following the rules certainly, but with a certain characteristic approach, style, and attitude. Charisma, we sometimes call it, but it is hardly as opaque as that sometimes garbage term suggests. Her bearing, her approach, her respect for the law and herself, and even a certain humility create a model of behavior that cannot be defined by any code or set of rules. Good legal breeding, as it were, very much a rara avis these days, helps define who she is, making her more effective in all she does, as a lawyer and otherwise.

Habits, ways of doing, often serve a vital function in this way, accounting to a considerable degree for what we call professional, while also revealing the fine points of the underlying society. The well-bred, well-trained lawyer is successful for a reason, after all. But even these paradigms understate the importance of what Aristotle called the hexis and what Hobbes is referring to by his “small morals.” If you have ever taken a foreigner unfamiliar with baseball to a major league game, you’ve doubtless experienced another, larger aspect of this phenomenon. You probably explained in advance to your guest the basic rules of the contest. Three outs to a half inning. Four balls make a walk. Three strikes make an out. A ball hit in the air and caught is an out. One hit on the ground is not, unless your throw beats a runner to a base. And so on and so forth.

Chances are, after an incomprehensible inning or two, your guest’s befuddlement began to give way to a grinding boredom. He quite literally had no idea what was going on. You may have tried to help by adding a few more rules, explaining the force play or the fact that a foul ball after two strikes is not a strike. But undoubtedly you, and he, soon gave up in complete frustration. No matter what you do, the rules cannot make sense of what is happening. Try explaining a sacrifice, for example—that you intentionally make an out. For what purpose? To move a runner into scoring position on second base. Wait!! Why is second base scoring position?

As this example shows, it is, as the old saw says, how you play the game that matters, but, in this case, not as a matter of just whether you conduct yourself honorably, but whether you play well. There’s something about understanding clearly how it all works, what the real workings of the game are, its strategy and tactics both, reflected in both what happens and how it is spoken about. Playing the game “right” contains elements of both form and substance. Both are necessary, neither is successful, each cannot be well-played, without the other.

It is striking how poorly and incompletely the bar associations and the courts have understood how what one does in the interstices of the legal rules really matters, that how you play the game does count. That what understanding one has of the process, and how much, not just a model of behavior, but attitude, matters. Take the current enthusiasm for “civility.” Vague references to this vague principle simply do not cut it. Judges constantly excoriate litigators for not being able to “work it out” or “get along.” But very few of the prevailing authorities have come to realize that it is the approach, attitude, and content of the interactions, not mere congeniality, that is critical. Sharp admonitions to demean oneself properly are of no use, if both the way in which the injunction is implemented and the content of the conduct itself are not clear. The “way of doing” comprises both manners and morals, and if either is amiss, the game itself will be affected, even fundamentally changed.

Ways of doing can and do make a difference in the law in many ways large and small. To provide an outsized example, consider the recent British controversies over Brexit. It is frequently remarked that the British Constitution, unlike its American counterpart, is an unwritten one, making it more fluid and more dependent on good conduct. In fact, both ends of this easy adage are incorrect. The American Constitution, although written, has had to be interpreted, generating a now vast number of constitutional decisions that have determined how the rules in the Constitution should be applied, what proper conduct might consist of. Hence Chief Justice Marshall’s admonition in McCulloch v. Maryland that we should never forget that it is a constitution, not a code of laws, we are expounding. Laws tend to be narrow and relatively precise, covering specific conduct with specific rules. A constitution, on the other hand, permits a large range of conduct within the rules. How one operates within the bounds of the rules, as in the case of a baseball sacrifice, is critical.

The British Constitution, on the other hand, is not completely unwritten. There are in fact many written rules and laws that apply to constitutional behavior. What’s really different is how narrowly these are focused. They cover, like our laws, only specific circumstances and cases. Most of the British Constitution comprises ways of doing. In our case, there are outer limits on conduct set by our written charter of government. In the British case, it’s the conduct, mostly, that sets the outer limit.

In the British case, it appears that it is exactly these outer limits that broke down during Brexit. Hardly a day went by in the Brexit debates when the British press wouldn’t report on something that was unprecedented in Parliament or within government generally. The content of the interactions of the various players was somehow different, changing, seemingly irrevocably. The relevant actors were not necessarily breaking any rules. They were breaking norms, customs, ways of doing, rules of civility that governed the activities of the British government. And with each such breach, it became increasingly possible to breach others. What “wasn’t done” in fact had been. There was no longer any consensus about the proper way to interact. And in such a case, anything goes. And did go.

We Americans can draw little comfort, however, from our converse situation where the Constitution sets the outer limits and the ways of doing fill in the gaps. One need only look at our Supreme Court confirmation process to see this writ large. The Constitution itself provides only the most skeletal description of how this is to be done: nomination by the president and confirmation by the Senate. It no more specifies how the Senate is to confirm the candidate than it suggests whom the president might or should nominate to serve.

Inevitably, politics and partisanship, themselves subject to different ways of doing, have never been far removed from the confirmation process. The refusal of the Senate to take up the nomination of Merrick Garland had its precedent in a similar refusal by the Senate in the 1830s to take up President Jackson’s nomination of Roger Taney to be chief justice, the same Taney who later authored the lead opinion in Dred Scott v. Sanford. It took an intervening election and a new Democratic Senate majority to confirm Taney upon re-nomination thereafter, with its enormous impact on American history subsequently. The violent opposition shown toward Robert Bork and Neil Gorsuch for their political and legal views were echoes of the vitriol expressed toward Louis Brandeis for his “radical” stance on labor and related policy issues.

But careful consideration of the current process undoubtedly suggests a new developing attitude and focus. The no-holds-barred activities of those acting for and against Brett Kavanaugh are not completely unprecedented. But even the most sanguine of commentators who might see parallels to the confirmations of Justice Thomas or Hugo Black, the latter accused (rightly, as it turned out) of having been a Klansman, would seem to have to acknowledge, amidst shabby conduct on all sides, that the old ways of doing have been lost. What that process will become hereafter, how it will reflect our attitude toward the Supreme Court, while also affecting it, is anybody’s guess. All that’s certain is that while the Constitution has not changed, how the game is played, indeed what kind of “game” it is, surely has.

Changes in Public View of Legal Process

Now consider a related, less dramatic, but possibly even more worrisome change, concerning how the public looks at the legal process generally. Not too long ago, during a Ninth Circuit argument on President Trump’s immigration policies, a government lawyer was sharply criticized by one of the panel in her defense of the government’s policies regarding the housing of detained immigrants. You would agree, asked the jurist, that people are entitled to basic necessities, like food and bathroom facilities and bedding, don’t you, counsel? The government lawyer, who had been focused on other issues, was clearly nonplussed and instinctively tried to deflect the question, resorting to banalities about looking at the larger context. The Ninth Circuit judge, possibly with an eye on the camera that films all Ninth Circuit arguments, greeted this with derision, others in the courtroom gasping with concern or disdain, and possibly both.

Not much to remark on there. Many lawyers have found themselves stymied by a rapier-like dissection of the unpleasant guts of an unpopular or poorly considered argument. It was the reaction outside the courtroom that was mostly troubling. Howls of outrage were heard when a video of the matter went viral. One erstwhile presidential candidate immediately called for the lawyer to be fired. Whatever your view of the immigration debate, you would have to concede that this was fundamentally inconsistent with what we know to be the usual character of courtroom proceedings, the way things are and should be done there. The lawyer’s job was, within the bounds of the law, to represent her client vigorously. She had to do the best she could in presenting the point of view of the president, whatever her personal view. Nothing she did was improper in this respect or in any way a reflection on her own morality or right to continued employment. The derision, disdain, and calls for her firing seemed to miss the critical point, which is that she was doing her job as an advocate, better or less well as you can decide, but certainly within what we lawyers understand to be proper.

In a sparkling precedent, John Adams is well remembered as a lawyer who volunteered to represent British soldiers accused of having participated in the Boston Massacre. Lawyers represent clients, often unpopular ones, who are entitled to the vigorous defense the lawyer is obligated to provide, and a lawyer cannot be blamed either for the client’s conduct or even for the fact of representing him. Not far from the scene of Adams’s demonstration of these principles, handling a case he had no need to take on, a Harvard professor and dorm administrator came off less well when he agreed to defend Harvey Weinstein in his rape case. He was criticized so vigorously for being part of the defense team, he was forced to resign his administrative appointment. Not too long ago, the country well understood, even celebrated, the role of Johnny Cochran when he represented O.J. Simpson, accused of slashing the throats of his ex-wife and her friend. But times have changed, what ways of doing are acceptable have changed too, and one wonders whether it is for the better.

Certainly, it will not be for the better if our new expectations, attitude, ways of doing no longer permit an accused, herself entitled to a presumption of innocence, to have access to a vigorous defense. The gravest risk arises from the bare fact that ways of doing once lost or destroyed seldom restore themselves, nor can they be reassembled from the scraps. You cannot teach a new dog old tricks. In this respect, we are in danger of losing what has been called in another context something so precious that, once destroyed, we may lack the means even of understanding what it was. 

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