Monday, December 30, 2013

Like Magic

If this be magic, let it be an art
Lawful as eating.

Winter’s Tale, V.3

There I was, Prospero like, threatening to “break my staff, bury it certain fathoms in the earth, and deeper than did ever plummet sound … drown my book” and thereby abandon blogging.  Then, two kind souls immediately stepped up to give me solace. That same day, quite by accident, I found out that a theater in town was offering a one-time screening of the current Royal Shakespeare Production of Richard II, the very play that was among the subjects of my last, somewhat despondent post. But when I tried to buy tickets to the screening, I found that it was sold out—which I saw as even better news than that of the screening itself!
Here was a flurry of signs indicating that affection for things Shakespearean still abounds.  And that sense of magical synchronicity fueled my spirit.
Seeing “signs” and synchronicities in things is a recalcitrant human instinct, even in the most stalwartly skeptical rationalist. We just can’t help ourselves. Because magic feels good. We flock to see the latest Hobbit movie to revel in the fanciful. We seek out coincidences that inject some enchantment into the humdrum. We impose patterns on random events and, in doing so, make the random seem more vital and, paradoxically, more real.  Like Helena in All’s Well That Ends Well, believing that things are written in the stars somehow instills optimism, an irrational fortress against (more sane) feelings of depression:
And ever shall
With true observance seek to eke out that
Wherein toward me my homely stars have fail'd
To equal my great fortune.

Lawyers, by contrast, abjure magic. They do not believe in trusting much of anything to the hands of fate. Every statement is laden with definitions, qualifiers, and seemingly gratuitous synonyms so that no nuance is left to the imagination.

For instance, Lawyer No. 1 says, “Y, please produce any and all documents in your possession, custody, and/or control related to or regarding x, including but not limited to, all documents than mention a,b,c.”  Then, to be sure that nothing is left to the imagination, Lawyer No. 1 notes that “the word ‘document(s)’ means any matter described in Federal Rule of Civil Procedure 34(a) and is used in its customary broad sense and includes all written, typed, printed, recorded or graphic statements, communications or other matter, however produced or reproduced, and whether or not now in existence, in your possession, custody or control, including without limitation:  all writings; emails; studies; analyses, tabulations; evaluations; reports; reviews; agreements; contracts; communications; including intra-company communications; letters or other correspondence; messages; telegrams; telexes; cables; memoranda; records; notes; reports; summaries; sound recordings or transcripts of personal or telephone conversations; meetings; conferences or interviews; telephone toll records; diaries; desk calendars; appointment books; forecasts; accountants' work papers; drawings; graphs; charts; maps; diagrams; blueprints; tables; indices; pictures; photographs; films; phonograph records; tapes; microfilm; microfiche; charges; ledgers; accounts; cost sheets; financial statements or reports; statistical or analytical records; minutes or records of board of directors, committee or other meetings or conferences; reports or summaries of investigations; opinions or reports or summaries of investigations; opinions or reports of consultants; appraisals; reports or summaries of negotiations; books; brochures; pamphlets; circulars; trade letters; press releases; newspaper and magazine clippings; stenographic, handwritten or any other notes; notebooks; projections; working papers; checks, front and back; check stubs or receipts; invoice vouchers; tape data sheets or data processing cards and discs or any other written, recorded, transcribed, punched, taped, filed or graphic matter, however produced or reproduced; and any other document, writing or other data compilation of whatever description, including but not limited to any information contained in any computer although not yet printed out or the memory units containing such data from which information can be obtained or translated into reasonable usable form, and all drafts and non-identical copies of the foregoing.”
You think I exaggerate? Ha!
Moreover, in response, Lawyer No. 2 responds, “Y objects to this request as overly broad, vague, ambiguous, and unduly burdensome.  Y further objects that, in any event, the request is duplicative of documents that must be produced pursuant to Federal Rule of Civil Procedure 26(a).  Y further objects to the extent that this request seeks any documents protected by any applicable privilege, including, but not necessarily limited to, the attorney-client privilege, attorney work-product privilege, the trade secret privilege--” and so forth.
There is no magic whatsoever in drafting either requests for or responses to formal document requests made by one lawyer to another in a lawsuit.  The whole point is to minimize the ability to engage in free association, to proceed based on trust, to hope for the best.

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