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Washington Lawyer

Legal Spectator: I Believe It

From Washington Lawyer, October 2008

By Jacob A. Stein

spectatorYes, I believe everything; you cannot tell me anything that I cannot believe. That the forbidden fruit of Paradise was an apple presents no difficulties to me; nor that mermaids sing when combing their hair and swans when dying, that ostriches eat keys and a whale ate Jonah, that a remora can stay a ship, and the cockatrice, who is hatched by a road out of the egg of a cock, slay a man by a glance.

—Rebecca West

Of course renowned journalist and author Rebecca West did not believe a word of it. She said it with a wink of an eye. Her comment is ironic. Samuel Johnson defined irony as “a mode of speech of which the meaning is contrary to the words.”

H. L. Mencken, the Baltimore sage, had the gift of irony. He did not like judges (and, on occasion, judges did not like him), and he had his fun with them. In his reminiscence titled Heathen Days, he recalls prohibition in New York City:

That was in the primitive days when New York still bristled with peepholes [speakeasies] and it was impossible to get into a strange place without a letter from a judge. . . .

Come to think of it, the practice of law is ironic. As lawyers we are prepared to believe everything, just like Rebecca West. We are in the believing line of business. Where nothing is certain (the Supreme Court’s 5–4 opinions and 3 concurring), we have a way of making anything plausible.

A prospective client tells us an unbelievable story. We run it through the conflicts check. If there is no conflict and the client is what is known as well-fixed, we are inclined to believe it.

We believe someone who says he is entitled to a $100 million separation bonus for running a public company into bankruptcy.

We believe someone with no assets and no job can make monthly mortgage payments of $5,000.

We believe someone with no assets and no job should be given a credit card.

We believe people who seek political power solely are interested in doing so for the good of the less fortunate.

We believe the Wall Street brokerage house that claims in its splashy television ads it will wisely invest your money, while at the same time The Wall Street Journal reports its loss of $3.2 billion in subprime loans held for its own account.

We believe the three-man compensation committee always deals fairly in distributing the year-end bonuses.

We believe the evidentiary rules, which declare that a dying declaration or an excited utterance is the truth, the whole truth, and nothing but the truth.

We believe a person who passes the bar exam is qualified to give advice on tax law, limited liability partnership agreements, international mediation, and atomic energy regulations.

We believe someone who is to be electrocuted and is suffering from a mental illness must be treated and rehabilitated so he can qualify to be legally executed.

We believe juries are always right when we win and wrong when we lose.

I knew a lawyer who believed nothing. His days were filled with suspicion. He earned his law degree by going to night school and working as an investigator for a life insurance company during the day. He had the persistence and the tenacity of Barton Keyes, the character Edward G. Robinson played in the 1944 version of Double Indemnity.

This lawyer felt inferior to those with better credentials. He should not have. In the trial practice, a good investigator is worth three lawyers. As far as I knew, his conduct was ethical, perhaps more so than those who condescended to him. A gesture, a pause, or a delay of some sort could occupy hours, days, and weeks of his time.

He was not cunning by nature, but he felt the cunning of others required him to resort to being cunning as a defense. He was not comfortable in that role.

I also knew a lawyer who believed just about everything. I once asked him if his trust in others had been betrayed. He said he could recall only a few occasions.

Piero Calamandrei, one of Italy’s leading authorities on civil procedure, wrote this interesting musing in Eulogy of Judges:

If a lawyer enters the courtroom armed with subterfuge and clever dialectics, if he relies upon the partiality of the judges or their corruptibility instead of relying upon honest argument, he should not be surprised to find himself not in an austere temple of justice but rather in a hall of mirrors like those one finds at fairs, where from every wall his intrigues return to him multiplied and distorted. To find purity in the courtroom, one must enter with a pure heart. Even here what Father Christopher said applies: ‘Omnia munda mundis.’ [‘All things are pure to the pure in heart.’]

Looking back over the years, I recall two times I deliberately was lied to. In one of those occasions, the lawyer in question and I were cocounsel in a personal injury case, representing the plaintiffs. We agreed to work together and not negotiate separately with the defendant’s insurance counsel.

One day cocounsel came to me and said he had settled his case without telling me—a clear breach of our agreement. However, he said, the counsel for the insurance company would not pay the agreed upon settlement. He wanted to warn me that I should never accept the word of those bad insurance people.

Reach Jacob A. Stein at [email protected]