The good thing about being a lawyer is there’s always someone to tell you you’re wrong.

Jeffrey R. Di Leo, Dean of Arts and Sciences at the University of Houston-Victoria, writes in “In Praise of Tough Criticism” that academics are reluctant to criticize one another and that, as a result, their disagreements are couched either in faint praise or anonymity, both of which neutralize the very disagreement that ought to be the foundation of intellectual life:

[G]iving faint praise is far worse than saying nothing at all. Why? Because silence is not a critical judgment—but faint praise, in contrast to honest and direct criticism, is empty criticism, the most banal form imaginable.

Another way that compassionate, caring critics get around their credo is to shroud their negative comments in anonymity. . . .

Like faint praise, anonymous criticism is empty criticism. Consider a recent example from The Chronicle Review. Carlin Romano’s article “Heil Heidegger!” was savaged in numerous anonymous comments. “Romano writes like an undergrad convinced by the argument of the last book he has read,” wrote one critic. “And, yes, he is a professor of philosophy, and yes, he was a Pulitzer Prize finalist, but his understanding of philosophy is so paltry that it beggars belief.” To that and other similar comments, Romano responded: “Those who savage me and my article from behind anonymous Internet tags emulate the cowardice, dishonesty, and taste for mobbing of the Nazi thinker they revere. It has often been that way with dupes who defend Heidegger—an abysmal thinker and writer, an immoral monster, and a disgrace to the historic enterprise of philosophy.”

Whether or not one agrees with Romano’s views of Heidegger, his take on anonymity is worth thinking about. Anonymity has more in common with cowardice than with courage—and is antithetical to critical dialogue. The common rationale for academic anonymity is quite clear: Honesty and truth require anonymity. To offer critical judgment anonymously, or, as Michel Foucault puts it in The Archaeology of Knowledge (Pantheon Books, 1972), as “a nameless voice,” allows one to stand outside the order of discourse, dialogue, and language. Writes Foucault, “I don’t want to have to enter this risky world of discourse; I want nothing to do with it insofar as it is decisive and final; I would like to feel it all around me, calm and transparent, profound, infinitely open, with others responding to my expectations, and truth emerging, one by one.” In other words, anonymity is more calming and less risky—or even more cowardly—than named criticism.

The inclination to pull one’s punches, to refrain from stating straight out one’s disagreement with one’s colleagues and the reasons for the disagreement, seems to me a particular problem in law schools. I always tell my students that one of the blessings of being a lawyer is that there’s always someone telling you you’re wrong, whether it’s your adversary, a judge, or even your client. That constant challenge to your views forces you to both be as thoughtful and well-spoken as is possible, and it forces you too to trust in your own judgment, not to defer always to authority. Lawyers disagree as a matter of professional duty. If law professors refuse to voice disagreement, they are therefore doing their students a disservice. they are like parents who model irresponsible behavior to their children.

I’m not suggesting one not be civil. Nasty adversaries make wonderful work unpleasant. But professional adversaries are a pleasure. They recognize that disagreement is one’s professional duty, and they don’t take your disagreement with them personally.

Addendum: Law professors don’t like telling their students they’re wrong either.

A lawyer must separate bluster from truth and act accordingly: Halsey Minor’s fall.

Being an effective lawyer requires an enormous amount of confidence in one’s own judgment. As I tell my students, when you’re a lawyer, there is always someone who is telling you you’re wrong. You have to figure out the extent to which the person telling you you’re wrong is right, adjust your position accordingly, and move on. Frequently, the person telling you you’re wrong is wrong himself. It’s not always easy to tell the difference between wrong and right. But the real signs of maturity are (1) being able to adjust your position to what’s right in someone else’s words, and (2) being able to reject disagreement you judge for yourself is without merit.

[One of my pet peeves with contemporary journalists is precisely there lack of nerve -- rather than making judgments and explaining them, most journalists merely "report" the words of people who disagree without judgment.]

An example of being told I was flat-out wrong occurred over a year and a half ago, when I wrote about Sotheby’s $16.8 million lawsuit against the art collector and Internet entrepreneur Halsey Minor for refusing to pay the auction house for three paintings he bought in May” (including The Peaceable Kingdom and the Leopard of Serenity by Edward Hicks). I explained that I didn’t see merit in Minor’s claims that Sotheby’s had been in the wrong in failing to disclose to Minor that it had a security interest in The Peacable Kingdom and that the painting’s owner had agreed Sotheby’s would receive the proceeds of the sale. Minor argued that he had relied on Sotheby’s expertise in connection with the painting, and that if he had known of Sotheby’s security interest in the painting he would not have been willing to pay so much. In short, he claimed, Sotheby’s had been supposed to be working on his behalf in giving him advice regarding the painting but in fact had been acting on its own behalf and to his detriment.

Minor agreed to buy the paintings in May 2008. We all know what happened subsequently — we all experienced financial disaster. As a result, the art market collapsed, and the paintings Minor had bought were worth significantly less than he had agreed to pay. Moreover, one could presume,Minor might have suffered severe financial problems in and after 2008. I suspected strongly that Minor either no longer had the money to buy the paintings or, at least, no longer saw them as worth owning at the price he had agreed to pay.

Minor, though, made plain in a comment to my post (as he had to other people who had written skeptically of his claims) that he thought I was wrong, concluding

Sotheby’s committed Fraud and will pay for it and its disappointing to see you allow them to get away with charging outrageous fees and then blaming lack on knowledge on the victim.

What do you say to someone so vehement when you think he’s full of it? You ignore him, and you let the evidence speak for itself. Which, apparently, is what Sotheby’s did. As Donn Zaretetsky of the Art Law Blog reported over 2 months ago, the federal judge who heard the case ruled on March 30 in favor of Sotheby’s on all counts, entering judgment in Sotheby’s favor for $4.4 million plus interest, late charges, and legal fees. (Decision embedded below.)

And now Zaretsky points out  too that my suspicions regarding Minor’s financial hardships are, apparently, well-founded. According to the New York Post:

Fallen Internet tycoon Halsey Minor is so hard up for cash that he can’t even afford to send Sotheby’s his art collection to make good on his $6.6 million debt to the famed auction house. Court papers filed yesterday say the CNet.com co-founder ‘has represented that he cannot pay shippers to transport his fine and decorative art as directed.

And Elizabeth Lesly Stevens of the Bay Citizen reports that Minor has defaulted on the rent for the offices of his corporate home, offices which he has abandoned:

Minor Ventures, Minor’s investment vehicle and corporate home in recent years, has recently cleared out of its 12th-floor, 17,000-square-foot space at 199 Fremont, in San Francisco’s trendy SoMa neighborhood. Minor left behind artwork, office equipment and cubicles, says Laura Binai, a staffer with the building’s management company.

“All their mail comes here, but no one comes to get it,” she said.

Minor Ventures is technically a subtenant of insurance giant Aon Corp., which is “hunting down Minor for rent,” Binai says. An Aon spokesman declined to comment, and efforts to reach Minor have been unsuccessful.

And a second part of Minor’s design collection is set to be sold on Wednesday by some of Minor’s creditors. And a court has allowed Sotheby’s “to register the $6.6 million judgment in the Western District of Virginia and the District of Delaware, where Minor has significant assets,” including “a $6.52 million mortgage for a farm near Charlottesville, Va., that he recently brought current after it was foreclosed upon.”

So what does it seem happened? Minor suffered severe financial losses in the second half of 2008 and his emphatic assertions of wrongdoing by Sotheby’s were just so much bluster.

Sothebys v. Minor Judgment

The making of a lawyer

Most law schools are odd places.  I suspect most people outside the law believe a law school’s principal mission is to train lawyers.  I am a law professor, and I happen to believe that too.  But I am a very odd duck within law school academia.  Practice for twelve years and partnership in a top nationwide firm is of very little value as a qualifaction to be a law professor.  Rather, the valuable assets among law school faculty are articles published in journals edited by students and rarely read by lawyers.  Most law school classes address theory (or “doctrine”) in a manner remarkably removed from its real world application.  Qualifying for law school rests to a significant degree, perhaps primarily, on an applicant’s score on the LSAT test, which may correlate to success in law school but bears little relationship to one’ effectiveness as a lawyer.  To add to the gap between law school and legal practice, the principal criterion underlying the rankings on which law schools and applicants rely to rate the quality of a law school is the median LSAT score of the school’s students.  Those rankings provide a tremendous incentive for a law school to act in ways intended to accept applicant’s with higher LSAT scores — scores that don’t correlate to effectiveness as a lawyer — at the expense of acting in ways that increase the effectiveness of its graduates as lawyers.

So I am thrilled to read in yesterday’s New York Times that professors at the University of California, Berkeley, have studied what makes lawyers (not law students or law professors) effective and “have come up with a test that they say is better at predicting success in” practicing law than is the LSAT.  The study concluded, as I’ve long been convinced, that “LSAT scores . . . ‘were not particularly useful’ in predicting lawyer effectiveness’. . .”  What does the new test consider factors that contribute to lawyerly effectiveness?

“[T]he ability to write, manage stress, listen, research the law and solve problems.”

I am also not surprised to read that the new test is no better than the LSAT at predicting how well participants would do in law school.  As I wrote above, there is far too great a gap between most law school instruction and the actual practice to consider a test that measures effectiveness in the latter able to test effectiveness in the former.

I wish all my students would read this post.  They’ve been dealing with a considerable degree of stress of late that they blame on me and the problems I’ve given them to try to solve — problems that are down and dirty real life problems lawyers face — and they’ve been complaining a lot.  One student in my Contracts course yesterday complainied that online discussion boards made clear to him that students at other schools were covering a lot more “theory” than I am.  I looked at him a little in surprise.  That’s the whole point of my teaching.  And it’s the whole point of the rather unusual curriculum at the school where I am a visiting professor, the University of Detroit Mercy Law School, where it has been recognized that theory and practice are inextricably intertwined and that each can only be understood in the law in relation to one another.  Thus, the school offers a “revolutionary new curriculum . . . [that] complements traditional theory- and doctrine-based coursework with practical learning, providing a solid transition between law school and a legal career.

But it’s hard to teach students to manage stress, listen, and solve problems.  First, it mean subjecting them to the stress of solving problems they do not know the solutions to in advance because what lawyers do is solve problems they don’t know the solutions to in advance.  No one enjoys stress.  I like to think that the students realize the stress I am subjecting to them is not one intended to or that will break them.  It’s school.  As I’ve always told them, in law school we hurl you into the water to see if you can swim, but the water’s only about 4 feet deep, so when you can’t swim, you just get on your feet, come back, try to figure out what went wrong, and then try again.  It’s when you’re a lawyer trying to solve problems you don’t know the solutions to in advance that the stress can be truly overwhelming, especially if you have not been at all prepared for it.

Oppositional figures?

Art and law are ways of exploring, defining, and even creating the world. They are also often romanticized as methods of expressing opposition — opposition to the ruling order, opposition to the status quo, opposition to conventional wisdom. Princeton will soon be hosting a symposium on The Art of Opposition. The promotional materials state:

Throughout history artists have created works as a form of opposition, whether to a dominant political order or to familiar social mores and conventions. This polemical mode of conceiving and interpreting art continues: artists frequently present their own work as a challenge to the status quo, while scholars and critics of contemporary art reinforce the notion that for art to be relevant it must at some level present a critique of prevailing habits and attitudes. For art historians, the concept of art as a form of protest or a challenge to established convention remains a frequent point of departure for research, particularly in relation to certain artists or in the study of specific historical junctures.

Art too, of course, has a long history of reinforcing the status quo, of glorifying the powers-that-be. Virgil’s Aeneid is at least in significant part pro-Augustan propaganda. And you don’t exactly find the world’s greatest art (or most art) in the more pedestrian places. Patronage has its price.

Law as well has its long history of opposition. Our entire system of litigation is founded an adversarial process. More to the point, however, lawyers have often been at the forefront of progressive social movements. As in the case of artists, however, it is not skill and creativity that frees one from the mass of humanity, or even from the forces that crush the most noble parts of humanity. It is the use to which one puts that skill and creativity.

Judging Puce

Ernie the Attorney states precisely something I’ve tried to get across about a lawyer’s need to decide and act in a world filled with ambiguity:

As a lawyer, I’m perfectly comfortable with conflicting information. The remedy for conflicting information is not to try to eliminate “flawed sources,” but to think critically about all sources of information that you encounter.

And then he illustrates his satisfaction with Wikipedia by discussing its definition of the color “puce,” making clear all the while that he understand there’s some dispute whether the color Wikipedia calls puce really is puce.

If it’s too good to be true, it’s too good to be true.

Yesterday i wrote about recognizing lies.  It is also fundamental to anyone who deals with contracts that they recognize that the higher a price one gets, the higher a risk one is taking.  So, if you buy “junk” bonds, you are getting a high interest rate, but along with the high interest rate comes a high risk you’ll get paid nothing at all.  That’s why they are called “junk” bonds — they’re the bonds of high-risk borrowers.  If you want to lend to those borrowers, you might get a lot back, but you might get nothing.  You can assume, therefore, that if you are told you can’t lose — that you’ll always make money, — that the risk you are taking is infinite.

These are the fundamental points Ben Stein made in this last Sunday’s New York Times when he connected the Bernie Madoff fraud, the sub-prime mortgage crisis, and the 80’s rise and fall of Drexel Burnham Lambert, the investment bank that specialized in the junk bond market:

ABOUT two years ago, a little delegation from a major investment bank arrived at my home in Beverly Hills. These nice young people were from the bank’s “wealth management division.” I told them straight away that I didn’t have anywhere near enough wealth to make their trip worth their time, but they smilingly insisted that we could help each other.

They told me that if I invested a certain sum with them, they would make sure that a large chunk of it was managed by a money manager of stupendous acumen. This genius, so they said, never lost money. He did better in up markets than in down markets, but even in down markets he did well. They said he used a strategy of buying stocks and hedging with options.

I protested that a perfect hedge would not allow making any money, because money made on the one side would be lost on the other. They assured me that this genius had found a way to spot market inefficiencies and, indeed, to make money off a perfect hedge.

I thanked them for their time and promptly looked up Bernard Madoff online. Nothing I saw was even a bit convincing that he had made a breakthrough in financial theory. . . .

My point is not that I was so smart. I am not and I was not. Mistakes are a big part of my life. My point is that, as humans, we seem unable to learn from our mistakes very well.

I have never heard of an entity that could make money in all kinds of markets consistently, year in and year out. Yet we continue to believe that there will be one.. . .

The same goes on a much larger scale for the debacle of subprime mortgages. In essence, it is a much larger version of the Drexel Burnham Lambert junk-bond debacle of the 1980s. Back then, investors were charmed by the idea that the lower-ranked the bond, the more money it would make. It seemed like a great idea: there’s this little corner of the market that the big boys turn up their noses at. But in this little corner, huge money is made. It’s almost like the myth that you get great bargains in poor parts of town.

In fact, the Drexel episode should have taught us to be wary, indeed, of poorly rated debt. But it didn’t. The new version of the myth was so alluring that it drew in not just billions of dollars from lenders and mortgage bond buyers, but much more in derivatives linked to the myth.

Knowing liars

Lawyers should be good at spotting fraud, but they often aren’t.  Same thing with historians. But this time the historians got it right:

About that fabricated (and now canceled) Holocaust memoir, by Herman Rosenblat, which David Mehegan writes about at Off the Shelf … Lesson: sometimes professors know what they are talking about.

Deborah Lipstadt called it a year ago. Here’s Lipstadt, a professor of Modern Jewish and Holocaust Studies at Emory, writing on December 7, 2007: “There is a Holocaust story making the rounds on the Internet which is clearly not true.” At this point, she seems to think it’s just a bit of Internet flotsam: “If you get this email do NOT send it on to other people. Delete it.”

Rhetoric, hot air, and powerful speech

Charlotte Higgins in the Guardian writes about Barak Obama’s power as a speaker and its connections to ancient oratory, Obama’s training as a lawyer, and the connections between writing and speaking:

There have been many controversial aspects to this presidential election, but one thing is uncontroversial: that Obama’s skill as an orator has been one of the most important factors – perhaps the most important factor – in his victory. The sheer numbers of people who have heard him speak live set him apart from his rivals – and, indeed, recall the politics of ancient Athens, where the public speech given to ordinary voters was the motor of politics, and where the art of rhetoric matured alongside democracy.

Obama has bucked the trend of recent presidents – not excluding Bill Clinton – for dumbing down speeches. . . .Though he has speechwriters, he does much of the work himself. (Jon Favreau, the 27-year-old who heads Obama’s speechwriting team, has said that his job is like being “Ted Williams’s batting coach.”) . . .

More than once, the adjective that has been deployed to describe Obama’s oratorical skill is “Ciceronian”. Cicero, the outstanding Roman politician of the late republic, was certainly the greatest orator of his time, and one of the greatest in history. A fierce defender of the republican constitution, his criticism of Mark Antony got him murdered in 43BC.

During the Roman republic (and in ancient Athens) politics was oratory. In Athens, questions such as whether or not to declare war on an enemy state were decided by the entire electorate (or however many bothered to turn up) in open debate. Oratory was the supreme political skill, on whose mastery power depended. Unsurprisingly, then, oratory was highly organised and rigorously analysed. The Greeks and Romans, in short, knew all the rhetorical tricks, and they put a name to most of them.

It turns out that Obama knows them, too. One of the best known of Cicero’s techniques is his use of series of three to emphasise points: the tricolon. (The most enduring example of a Latin tricolon is not Cicero’s, but Caesar’s “Veni, vidi, vici” – I came, I saw, I conquered.) Obama uses tricola freely. Here’s an example: “Tonight, we gather to affirm the greatness of our nation, not because of the height of our skyscrapers, or the power of our military, or the size of our economy …” In this passage, from the 2004 Democratic convention speech, Obama is also using the technique of “praeteritio” – drawing attention to a subject by not discussing it. (He is discounting the height of America’s skyscrapers etc, but in so doing reminds us of their importance.)

One of my favourites among Obama’s tricks was his use of the phrase “a young preacher from Georgia”, when accepting the Democratic nomination this August; he did not name Martin Luther King. The term for the technique is “antonomasia”. One example from Cicero is the way he refers to Phoenix, Achilles’ mentor in the Iliad, as “senior magister” – “the aged teacher”. In both cases, it sets up an intimacy between speaker and audience, the flattering idea that we all know what we are talking about without need for further exposition. It humanises the character – King was just an ordinary young man, once. Referring to Georgia by name localises the reference – Obama likes to use the specifics to American place to ground the winged sweep of his rhetoric – just as in his November 4 speech: “Our campaign … began in the backyards of Des Moines and the living rooms of Concord and the front porches of Charleston”, which, of course, is also another tricolon. . . .

It is not just in the intricacies of speechifying that Obama recalls Cicero. Like Cicero, Obama is a lawyer. Like Cicero, Obama is a writer of enormous accomplishment – Dreams From My Father, Obama’s first book, will surely enter the American literary canon. Like Cicero, Obama is a “novus homo” – the Latin phrase means “new man” in the sense of self-made. Like Cicero, Obama entered politics without family backing (compare Clinton) or a military record (compare John McCain). Roman tradition dictated you had both. The compensatory talent Obama shares with Cicero, says Catherine Steel, professor of classics at the University of Glasgow, is a skill at “setting up a genealogy of forebears – not biological forebears but intellectual forebears. For Cicero it was Licinius Crassus, Scipio Aemilianus and Cato the Elder. For Obama it is Lincoln, Roosevelt and King.”

Steel also points out how Obama’s oratory conforms to the tripartite ideal laid down by Aristotle, who stated that good rhetoric should consist of pathos, logos and ethos – emotion, argument and character. . . .

In English, when we use the word “rhetoric”, it is generally preceded by the word “empty”. Rhetoric has a bad reputation. McCain warned lest an electorate be “deceived by an eloquent but empty call for change”. Waspishly, Clinton noted, “You campaign in poetry, you govern in prose.” The Athenians, too, knew the dangers of a populace’s being swept along by a persuasive but unscrupulous demagogue (and they invented the word). And it was the Roman politician Cato – though it could have been McCain – who said “Rem tene, verba sequentur”. If you hold on to the facts, the words will follow.

Cicero was well aware of the problem. In his book On The Orator, he argues that real eloquence can be acquired only if the speaker has attained the highest state of knowledge – “otherwise what he says is just an empty and ridiculous swirl of verbiage”. The true orator is one whose practice of citizenship embodies a civic ideal – whose rhetoric, far from empty, is the deliberate, rational, careful organiser of ideas and argument that propels the state forward safely and wisely. This is clearly what Obama, too, is aiming to embody: his project is to unite rhetoric, thought and action in a new politics that eschews narrow bipartisanship. Can Obama’s words translate into deeds? The presidency of George Bush provided plenty of evidence that a man who has problems with his prepositions may also struggle to govern well. We can only hope that Obama’s presidency proves that opposite.

One of the most impressive and useful things to me about Obama’s speeches is his ability to unite his rhetorical moves (like the use of anaphora and epiphora noted in the Higgins’ article) to very powerful themes.

The most notable example of this to me was his 2004 Convention speech — the part about there not being a “Red or Blue America,” but, rather, “a United States of America,” etc. That speech, in addition to employing numerous rhetorical flourishes, employed them all to further the idea we who grew up in the U.S. have all grown up with: e pluribus unum; out of many, one. To me, that idea — that we are a united country precisely because we recognize and respect our vast differences — has always been one of the best things of what it means to be a U.S. citizen.

Sometimes I think that when we talk about rhetoric we focus on the devices at the price of the content we mean them to convey. I always think the primary task is to identify a theme or themes the speaker/writer wants to convey — then one can use the devices to further that theme. Without the theme, the devices really are just empty rhetoric.

The most innovative lawyers in the U.K.

From London’s Financial Times comes this year’s list of the ten most innovative U.K. lawyers. “[T]he submissions showed that it is possible to overturn conventional notions of the role of the lawyer. The bold individuals who dreamt up a new scheme, persuaded colleagues of its importance, set it in motion and made a success of it can take ample credit in their achievement.”

Nevertheless, the judges who made the choices “were dismayed to find no women lawyers or members of ethnic minorities. This follows a report last month from The Lawyer magazine that women account for just 14 per cent of partners at the UK’s four leading or ‘magic circle’ firms. One judge commented that law firms claiming the mantle of innovation must surely show a greater commitment to diversity.”

Perhaps that’s why Marc Harding, General Counsel of Barclays, was selected for

leading the charge for the profession to step up to the challenge of diversity, helping the Law Society complete its first draft of a diversity charter. Mr Harding first demanded that his legal suppliers give Barclays diversity statistics in 2006. Not only must the seven key advisers to the bank deliver these statistics, he also demands them from the bank’s 10 specialist legal panels. The legal press have commented that his work in moving diversity up the agenda will have a lasting impact on the client-lawyer relationship.

Another interesting choice was David Gray, Chief Executive of Eversheds:

To demonstrate the importance of openness and accountability, Mr Gray created a mechanism to receive feedback from the firm’s partners. In a courageous move, he kicked off the process at a conference in 2006, where he stood in front of Eversheds partners and invited them to score him on his performance during his live presentation. The partners anonymously scored Mr Gray from 1 to 5 on specific questions via electronic keypads, with the results screened instantly for all to see. Mr Gray says it was “pretty terrifying”, but “I did it because I wanted to bring home to them that accountability had to start at the top”.

Mr Gray invites feedback via an intranet page, asking partners to rate him on communication, strategic decision making, motivational skills and general leadership.

Lawyers who want to be writers.

Eighteen years after Ben Fountain left Akin Gump Strauss Hauer & Feld LLP to begin his life as a fiction writer, he’s a success.  I left Akin Gump twelve years ago.  Does that mean six more years until I make it as a writer?