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Washington Lawyer

Legal Spectator: Authenticity

From Washington Lawyer, July/August 2008

By Jacob A. Stein

spectator Have you noticed, as I have, that performers who have won Oscars for their acting ability have little to say when interviewed on TV? Without the assistance of directors, voice coaches, and dialogue writers to help them play the part, they do not come to life.

Successful playwright W. Somerset Maugham (1874–1965), in his book The Summing Up, said he was acquainted with many actors, but never thought he really knew any of them. “The fact is, I suppose, that their personality is made up of the parts they play and that the basis of it is something amorphous. It is a soft, malleable thing that is capable of taking any shape and being painted in any color.”

Maugham went on to say that:

The writer and the actor represent emotions they do not, at the moment at all events, feel; and standing with one side of themselves outside life portray it for the satisfaction of their creative instincts. Make-believe is their reality, and the public, which is at once their material and their judge, is also their dupe. Because make-believe is their reality they can look upon reality as make-believe.

I have often wondered whether lawyers have, in a limited way, such a connection. A lawyer has played as many roles as he has had clients. Each client is different. Each case is different. One case may require indignation. Another may call for bullying. Yet another, patient understanding. There also is the need to get and keep clients and sympathize with their interests. After all, we owe them loyalty, and we must do what they want us to do if it is ethically permissible. The client speaks through us. The client and the case are our playwright.

I was discussing this with a successful lawyer. I asked him whether his 30 years of practice had deprived him of his own authenticity. He referred me to Article IX of the Federal Rules of Evidence, which deals with authenticity, the authentication requirement, and the need to prove that what appears to be true and authentic is actually so.

He went on to say that when he commenced his practice, he had hoped he would find himself having won and lost so many cases that he would not worry too much about losing one particular case. He said when he reaches that point, he would consider himself a professional. Such confidence would give him the necessary distance between himself and his clients. This professional distance would protect his own authenticity.

I have known lawyers who were quiet and reserved. They kept their professional distance from their clients. One in particular, who had a criminal practice, made it a point never to judge people. He took his clients as he found them. He never asked them why they did the things that got them into trouble. Cars fail, people fail. He chose not to involve himself in his client’s personal life or disclose his own personal life to the client. He approached the practice like an anthropologist studying a culture.

There are other lawyers who make friends with their clients. The lawyer spends days and nights with the client. As a consequence, the client learns much about the lawyer. The client learns that the lawyer has many of the same problems—procrastination, family problems, lack of discipline, addiction to candy bars, and occasional depression.

There is a danger here. If the case takes a wrong turn, the client reevaluates the relationship. The client may decide his so-called friend did not work hard enough. He made mistakes. He charged too much. Even when the lawyer gets a good result, the client may not wish to be around someone who knows so much about him.

I worked closely with one of those lawyers who became friends with his clients. He was never bored as they repeated the facts of the case over and over. If a client had a trade, such as carpentry or electricity, this lawyer would find odd jobs in his house that needed attention. He adopted the client’s point of view on politics, and if possible, religion. After the case was over, these people became part of his entourage.

When we have been practicing for 20 or 30 years or more, we may wish to confront ourselves and ask, “Who am I?”

Let me give you an answer you might consider. I found it while reading a play by the great George M. Cohan (1878–1942), the actor, playwright, and songwriter. He wrote a play called The Tavern. The character Cohan wrote for himself to play was called the Mysterious Stranger. A dramatic moment arrives in the last act when one of the actors confronts this Mysterious Stranger and asks, “Just who are you?” I do not have the play before me, but I will paraphrase the answer Cohan wrote for himself:

You have asked me who I am. I don’t know who I am, and if I did, I would be the most miserable man on the face of the earth. My greatest happiness springs from the fact that I occupy a unique position. I have not been cast for a part in the great world drama of life. I am a spectator. I am out front watching everyone else perform the piece for me. And if I may say so, I am a highly intellectual spectator. I see the spiritual hand of the great playwright who has put together this never-ending, never-beginning tragic farce. One day I hope to meet the playwright and compliment him on his presentation. Do you understand what I mean? I hope you do because that is the end of my speech.

I, too, will end it right there.

Reach Jacob A. Stein at jstein@steinmitchell.com.