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Washington Lawyer

Legal Spectator: What Is He Really Like?

From Washington Lawyer, May 2010

By Jacob A. Stein

spectatorWhen a prominent person is accused of wrongdoing, the papers and TV people paint the poor fellow with accusations, gossip, priors, and bad acts. None of it can be taken at face value as William Thackeray noted:

In common life don’t you often judge and misjudge a man’s whole conduct, setting out from a wrong impression? The tone of a voice, a word said in joke, or a trifle in behavior, the cut of his hair or the tie of his neckcloth, may disfigure him in your eyes, or poison your good opinion; or at the end of years of intimacy it may be your closest friend says something, reveals something which had previously been a secret, which alters all your views about him, and shows that he has been acting on quite a different motive to that which you fancied you knew. And if it is so with those you know, how much more with those you don’t know? . . .

When a lawyer friend of mine is representing the accused in a criminal case, I like to ask my friend just what the accused is really like.

For instance, when the accused is a politician, governor, or senator and is connected with a sexual transgression, my friend usually responds to my question by asking, “What can you say?”

If I go further with the conversation, I bring up the name of Arthur Schopenhauer (1788–1860), a 19th-century philosopher. Traces of his writings are found in the works of Arthur Koestler, Thomas Mann, Marcel Proust, Leo Tolstoy, and Richard Wagner. I tell my friend he should read up on what Mr. Schopenhauer has to say about his client’s problem. Schopenhauer, with a few words of concision and insight, hits the target. He wrote that no matter how sexual love disguises itself,

[it has] an unfavourable influence on the most important affairs, interrupts every hour the most serious occupations, and sometimes perplexes for a while even the greatest minds. It does not hesitate to intrude with its trash, and to interfere with the negotiations of statesmen and the investigations of the learned. It knows how to slip its love notes and ringlets even into ministerial portfolios and philosophical manuscripts. Everyday it brews and hatches the worst and most perplexing quarrels and disputes and destroys the most valuable relationships, and breaks the strongest bonds. It demands the sacrifice sometimes of life or health, sometimes of wealth, position, and happiness. Indeed, it robs of all conscience those who were previously honorable and upright, and makes traitors of those who have hitherto been loyal and faithful. Accordingly, it appears on the whole as a malevolent demon, striving to pervert, to confuse, and to overthrow everything.

I am surprised that Maureen Dowd has not brought Schopenhauer into one her columns about the bad boys.

In one of his essays, Schopenhauer discusses what he calls the “clearness of view,” the distinguishing of the trivial from what is important, the profound against the superficial, the intuitive sense of proportion every good lawyer would like to have. It is to be found in Rule 403 of the Federal Rules of Evidence, a rule that gives a trial judge the discretion to exclude evidence that is just a “waste of time.” Schopenhauer said the clearness of view is gained by what the world teaches us, over time. It is only then that we see things for what they really are.

Schopenhauer was like so many who are fond of giving advice to others but cannot put it to personal use. His life was unhappy. I would not want him as a client.

Let me leave Schopenhauer and report on another case, a white-collar crime case, in which a lawyer friend of mine was representing one of the accused. The media described the client as someone who conspired with others to obtain large sums of money from an insurance company. When I asked my friend what his client was really like, I got the usual response, “He’s not too bad.” But then my friend said a few things more.

He said he thought his client was innocent, but he did not know whether the jury would acquit. This puts the lawyer on trial, along with the client, and it tells the lawyer what he, the lawyer, is really like.

You can see how Gregory Peck dealt with the problem in To Kill A Mockingbird. I am told the movie sent many would-be lawyers to law school. I hope that none were in a case where an innocent man could be convicted.

We see on TV programs actual cases that a state’s attorney should never have brought. A state’s attorney with political ambitions is on the lookout for the headline case. It would be interesting to know how many people in politics were, at one time, prosecutors.

Let me finish off with something not so disturbing. Benjamin “Dizzy” Disraeli (1804–1881) and William E. Gladstone (1809–1898) were the dominant politicians in the House of Commons. Each had been Prime Minister. Each disliked the other. Better yet, they hated each other. When Dizzy was asked what Gladstone was really like, Dizzy came back with this:

A sophistical rhetorician, inebriated with the exuberance of his own verbosity, and gifted with an egotistical imagination that can at all times command an interminable and inconsistent series of arguments to malign an opponent and to glorify himself.

I have not found the quotation (there must be one) of what Gladstone thought Dizzy was really like.

Reach Jacob A. Stein at [email protected].