Saturday, June 2, 2012

Not Strain’d?

The other night I attended a fancy function (which shall remain nameless). The place was swarming with lawyers. I am a lawyer. Yet both subtle and obvious features of the evening made it clear to me that I did not fit in. In fact, I felt rather like the time I joined a women’s chorus only to realize at some point towards the end of the first rehearsal that I was the only member who was not a lesbian.

Not that I have anything but vast affection for lesbians. And I am not even suggesting that feeling like a fish out of water (or a fish called Wanda) is a bad thing. Such feelings can be very helpful—even to one’s professional development. Especially if you are a writer. Even more so if you are a legal writer.

How’s that?

Legal writers need to have a refined sense of alienation because this helps hone the ability to empathize. Empathy is especially helpful for legal writers because the substance about which they write is often excruciating. Reading judicial opinions can feel like jogging along the Houston ship channel at midday in July. Statutes and regulations often read like entries from instruction manuals written by non-native speakers aided only by primitive computer translation programs. Legal writing about these primary sources of law—judicial opinions, statutes, regulations—should not cause similar pain. 

Because of the subject matter, expecting legal writing to be reader-friendly is, perhaps, unduly optimistic. But, as I have explained elsewhere, legal writing should at least be “reader-centric,” crafted with a particular reader’s needs foremost in mind. 

A lot of lawyers, however, struggle with this maxim, even after years of experience. You can easily find appellate briefs in high-profile cases submitted by experienced counsel that seem to have been crafted largely to please a client rather than the court to whom the brief is addressed. For instance, these briefs contain aggressive assaults on the integrity or intelligence of the “court below” as if that court were not part of a small professional cadre that includes the very readers of the brief in question who will be deciding the client’s fate. And many lawyers, on a daily basis, draft letters or e-mails to clients that are so full of legalese and insider-speak that the poor client, even if that client is an in-house lawyer for a big company, will have trouble decoding the message.

Reader-centrism is hard because empathy is hard.

Empathy, according to my pal The American Heritage Dictionary, involves “[i]dentification with and understanding of another’s situation, feelings, and motives.” The act of empathizing becomes hard when the vantage point of that other person is quite different from one’s own.  Obvious differences are different childhood experiences, economic backgrounds, religious and political beliefs, gender or sexual orientation, race, national origin. In fact, the variables that can affect two people’s perspective on any given event are essentially infinite. Just ask a police officer how hard it is to get a coherent story about “what really happened” even from disinterested individuals who witnessed the same car accident. And consider how often siblings have radically different memories about a given event from their common childhood. Or think of how you have sat next to someone watching the same film and emerged from the darkened theater afterwards with totally different feelings about the quality of what you just experienced together. Assessing what a particular person’s perspective might be is hard enough; putting yourself in that person’s shoes requires further exertion. But only after recognizing that a different perspective exists can you try to experience the world from that different vantage point.

This is why, when coaching moot court teams, I urge my students to volunteer to judge other competitions. Only after they step into a judge’s shoes do they understand how unpleasant it is when some advocate is yammering away in shorthand about his case and the authorities that supposedly support his argument. Being on the receiving end of that yammering suddenly illuminates why it is important to frontload conclusions, to provide context for the authorities that reputedly support a position, and to employ accessible analogies and examples, thereby allowing a listener to see as well as hear the points you endeavor to make.

You may recall that the suggestion that “empathy” should have anything to do with “the law” set off a bit of a firestorm back when President Obama made the following statement about the type of nominee he would propose to fill retiring Justice Souter’s seat on the United States Supreme Court: “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily realities of people’s lives. . . .” See That kind of judge, President Obama explained, would have empathy:  “I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.” Many pundits scolded the President for this statement, suggesting that privileging empathy in a jurist meant inviting judicial activism. The President’s position was, however, neither radical nor novel. Even Shakespeare’s Portia, while impersonating a lawyer in The Merchant of Venice, expresses similar sentiments about how true justice is tempered by mercy, which requires feeling empathy for those who have done wrong:

The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
’Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself . . . .
 (IV. 1.184–95)

This beloved bit from Portia, I’ll admit, drips with irony when you put it in its original context. She makes this courtroom appeal in an effort to shame the wronged plaintiff, Shylock. She hopes to convince him to forego the “pound of flesh” to which he is legally entitled because her boyfriend, the dead-beat Antonio, has defaulted on a rather hefty loan. She urges Shylock to empathize with Antonio’s plight. Meanwhile, Portia, Antonio, and their cohorts aren’t exactly overflowing with empathy for Shylock, the true outsider in Venice. They ultimately treat the fact that his daughter runs off with all his money and a goy as a source of great hilarity.

But that whole “practice what you preach” thing is really hard.

Come to think of it, lining up the walk with the talk is a logical extension of empathy, which, I have already admitted, is quite hard. Once you’ve taken a walk in someone else’s shoes and felt the pinch (hard), you either want to toss the shoes in the trash and run fast in the other direction (fairly easy) OR you want to try to help craft a pair of shoes that actually fits (really hard).  

Step 1: Note the problem.
Step 2: React to the problem.
Step 3: Do something that may actually help ameliorate the problem.

Some people—especially those who routinely hang out with lots of people who tend to see the world exactly as they do—never even take Step 1.

A lot of us get tripped up by Step 2—either running from the problem (way easy) or just talking about how to eliminate the problem while continuing to do something quite different (still pretty easy).

Step 3. That’s the toughie. Portia doesn’t get that far. A lot of real lawyers don’t either. But the ones who do— Ah. They are the beacons, the ones we long to be even if we never quite get to the point of implementing the high-minded rhetoric about how “mercy seasons justice.” (Merchant, IV. 1.197).

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