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Washington Lawyer

Legal Spectator: It Is My Unqualified Opinion . . .

From Washington Lawyer, June 2005

By Jacob A. Stein

Legal Spectator

We are in the prediction business. We gather the facts and apply the law. We predict what a court will do, what our opponent will do, whether we should accept or reject the offer. We state our opinion and then we bring in the reasonably prudent man to provide the qualifications, the reservations, the footnotes, the escape clauses, the very definite maybes.

We must be cautious. We must be cheerfully cautious. We must not be gloomy. Gloom will drive clients away. Balthasar Gracian in his The Art of Worldly Wisdom gives this advice:

Do not be censorious. There are people of gloomy character who regard everything as faulty, not from any evil motive but because it is their nature to. They condemn all—these for what they have done, those for what they will do. This indicates a nature worse than cruel, vile indeed. They accuse with such exaggeration that they make out of motes beams with which to poke out the eyes. They are always taskmasters who could turn a paradise into a prison—if passion intervenes they drive matters to the extreme. A noble nature, on the contrary, always knows how to find an excuse for failings, saying the intention was good, or it was only an error of oversight.

Be understanding of the audit committee. There are worse things than approving a $25 million bonus for the CEO who put the company in bankruptcy.

John McCormack, the Massachusetts congressman, was the Speaker of the House in the 1960s. He had seen politicians convicted of high crimes and misdemeanors regain power. They were quick to retaliate against those who were disloyal during the hard times. McCormack had learned it is best to speak well of others or say nothing. Those who knew him said he only once spoke out against someone under attack: Adolph Hitler. McCormack, in as defiant a tone as he could muster, said, “Adolph Hitler, I want you to know, is someone for whom I absolutely have a minimum of high regard.”

There was a time when people stood up and stated boldly what was what. President Calvin Coolidge knew how to do it. Here is his speech on the state of the Union delivered to Congress in 1928:

No Congress of the United States ever assembled, on surveying the state of the Union, has met with a more pleasing prospect than that which appears at the present time. In the domestic field there is tranquility and contentment, harmonious relations between management and wage earner, freedom from industrial strife, and the highest record of years of prosperity. In the foreign field there is peace, the good-will which comes from mutual understanding, and the knowledge that the problems which a short time ago appeared so ominous are yielding to the touch of manifest friendship. The great wealth created by our enterprise and industry, and saved by our economy, has had the widest distribution among our own people, and has gone out in a steady stream to serve the charity and the business of the world. The requirements of existence have passed beyond the standard of necessity into the region of luxury. Enlarging production is consumed by an increasing demand at home, and an expanding commerce abroad. The country can regard the present with satisfaction and anticipate the future with optimism.

Coolidge happened to be dead wrong. In less than a year there would be a worldwide depression. Piers Brendon, in his study The Dark Valley, says the 1930s Depression was the worst peacetime crisis to afflict humanity since the Black Death. It was the economic equivalent of Armageddon.

Coolidge’s speech appears in a little book first published in 1931 titled Oh Yeah? Each page that follows the Coolidge speech lists the wrong predictions by the captains of wealth and privilege declaring that prosperity is just around the corner. Here are a few examples:

Prophecy is a vain thing and I have no wish to join the ranks of the prophets, but I cannot believe that this country of ours, with its huge consumption and its enormous capacity, can long remain in a state of depression. . . . I believe . . . that we have turned the corner.
—P. E. Crowley, June 1930

With the exception of the difficulties that have arisen as a result of the drastic deflation of commodity prices, the business horizon is
clear. . . . We all know that the present period cannot long endure.
—Richard Whitney, September 10, 1930

In 1928 everyone expected President Coolidge to run for another term. Given the state of the Union, he was the unbeatable candidate. For reasons he never disclosed, he announced, “I do not choose to run for President in 1928.”

Herbert Hoover was pleased to step forward as the prosperity candidate. Hoover was elected president, but he had only a short taste of the Coolidge prosperity. The 1929 crash branded Hoover as the Depression president.

Franklin D. Roosevelt, elected in 1932, gave it as his unqualified opinion that everything Hoover and his friends did was absolutely wrong and he, Roosevelt, was going to save the country by doing everything that was absolutely right.

Jacob A. Stein can be reached by e-mail at [email protected].