Monthly Archives: February 2014

Stephen King On Writing–Lawyers Ed.

So why I’m I posting a blog on Stephen King? (Yes, the Stephen King.) Lazy? I’ve already written it for one of my other blogs? I can’t say that’s not a factor, but I have a better response. My premise:

Any source that improves writing benefits lawyers

That’s my justification. That simple. Of course, if you read my review (included–with my permission–in full below), you’ll learn that I found the book entertaining as well as sage. I enjoy King’s voice as well as his advice. If nothing else, if you apply my two favorite tips from the end of the review, you’ve received value for your effort.

One more thing to remember: King has sold around a gazillion books because he tells intriguing stories. We lawyers can’t fabricate our stories, but we can tell those client stories well or poorly, depending on our writing and presenting skills. Taking advise from a master, not just in the mechanics of writing, or in the area of fiction (assuming you not planning a Grisham), but also in the art of telling a story, will prove worthwhile. Enjoy.

On Writing: A Memoir of the Craft by Stephen King

  • by Stephen N. Greenleaf
  • 2 min read
  • original
I owe Stephen King a big, fat apology. For many years, I thought him a horror hack, someone who only writes creepy stuff for the more gullible among us. Of course, doubts crept in over the years. Several movies based on his work, The Shawshank Redemption, The Green Mile (which I saw only about a year and half ago), and Stand by Me were all movies with compelling stories. Some, like The Green Mile, incorporate a fantastic element, but all tell compelling stories about interesting people even without a fantastic element. I was intrigued when I saw that King had written 11.22.63, and I saw that it received good reviews. As you may have read, I gave it a good review, too. So, Stephen King, I’m sorry for typecasting you, which reflects poorly on me and not at all on you. (If you, reader, retain some prejudice against the fantastic in literature, then you won’t count Homer, Sophocles, Virgil, Dante, Shakespeare, Milton, or say, Italo Calvino or Garcia Marquez, among your favorite authors. Well, so be it if you insist. Just know that don’t need to go the Fantasy/SF section of the bookstore to find the fantastic.)
So how is this nonfiction book of King’s? Excellent. It’s divided into three parts. The first part is a memoir of his youth and his beginnings as a writer. As someone who, like King, grew up in America in the 50’s and 60’s, I share many of his experiences and cultural references. But King had a tougher start than I did. He was raised by a single mother (dad hit to road when Stephen was about age three), and they never had much money. But Stephen and his brother were bright and inventive. Stephen got into comic books and Tom Swift (“Junior” by Victor Appleton II, like me, or the older ones? He doesn’t say). Like many a writer, illness kept him at home one year (requiring him to repeat a grade) so he read to pass the time. Later Stephen got into horror books and movies. I’m certain he would have watched the ones that I liked to watch on late Saturday nights, like Rodan, the giant Pteranodon that comes out of the mountain and blows down miniature Japanese cities. And I’m sure he’d know the one about the giant Gila monster in the American southwest created by atomic testing. The giant lizard creeps up on teenagers parked in the desert making out, when, just as they getting intimate, the monster strikes. (“That’ll teach ’em!”) Yes, I understand much of the background of Stephen’s cultural upbringing. Now I appreciate some of the sources of his inspiration.

The second section of the book deals with “The Toolbox”: vocabulary, grammar, adverbs (he hates ‘em), and so on. The third part deals with the practicalities of writing and publishing fiction. While not quite as personal or entertaining as the first part, King never loses his sense of humor (which I quite like) or his sense of perspective. King has sold about a gazillion books, but it hasn’t seemed to have gone to his head. He did develop a drug and alcohol addiction, but he made it to the other side. He married his college sweetheart, and they raised a family and now have grandkids. King knows of his good fortune and shares his wisdom freely.

 

If you have any inclination to read a book about writing that’s also entertaining and personal—the not Strunk and White or F.L. Lucas type of book—this is a superb choice. Educational and edifying with some great tips that most any writer can use: cut the adverbs and cut 10% of your initial draft are my two favorite take-aways.

Thymos: The Lost Ingredient of the Soul

End of Hx & the Last Man by FukuyamaBelow is my review of Francis Fukuyama’s The End of History and the Last Man. Why am I posting it here? Well, it’s my blog and I’ll post what I want. No, it’s more than mere whim. I think that Fukuyama has written one of the most important works of political theory (philosophy, if you prefer) in this book. I read about 15 years ago for the first time, and as I explain below, a recent event spurred me to re-read it. But what has this (controversial) work of political theory have to do with persuasion, law, or lawyers? A lot.

Among the projects undertaken by Fukuyama in this work is a rehabilitation of the concept of thymos in political thought. If you’ve read Plato’s Republic, you will recall the tripartite division of soul established in the dialogue. Two parts, reason and desire, have endured well over the centuries, and they passed   in to the Anglo-Saxon tradition of liberalism founded by Hobbes and Locke. However, thymos, understood as “spiritedness”, “dignity”, perhaps “pride”, was shunted aside in English-speaking tradition. But not so in the German tradition, especially with the work of Hegel and Nietzsche. Hegel makes thymos, displayed in the dialectic of lordship and bondage (or master and slave), the key dynamic in history.

So how is this ancient and philosophical idea relevant? To persuade anyone, we must know what motivates them. Their desires, of course. To the extent that they are open to reason, the use of reason. But in my 30-plus years of practicing law and dealing with disputes, it’s almost always about more than money (material desire). And reason will not go very far. No matter how well we evaluate the economics of a claim, understand the Prisoner’s Dilemma, or weigh probabilities, something more is usually involved, even with businesses. That missing element was usually some variation of “I’ve been wronged and someone ought to acknowledge that a wrong done to me”. This was true of divorces, employment law cases, and personal injuries–almost all cases involving a litigated dispute.

This is not always easy for us to understand, and it’s difficult of the lawyers to deal with. For instance, we have the stereotype of the person who’s suffered a personal injury greedily seeking to pin blame on someone to get money, something akin to a shakedown racket. This can happen, but in most of my cases, I represented persons (or survivors in a family where someone has died) who believed that that have suffered a real wrong. They felt cheated and abused in addition to the loss of income and companionship they experienced. Doctors and hospitals that apologize for mistakes suffer fewer suits, resolve suits more quickly, and pay less in claims than those who stonewall. They do so by addressing the need for recognition–recognition of loss. Families and individuals came to me because insurance companies wouldn’t pay or bills went beyond insurance coverage and because doctors wouldn’t level with patients and families about what went wrong. Lawsuits become a matter of money as a medium (or currency) for matters well beyond economics.

Employment law involved similar issues. A woman fired after taking time off work to deal with depression is fired, but the employer claims that she resigned. That lie, in addition to the disregard for her well-being, drives the case much more than the economic loss. Attorneys and mediators must translate these issues into dollar and cents terms, but wise attorneys and mediators acknowledge the hurt and insult suffered by a claimant. And divorces? I got out of the divorce business because the issues of emotional harm and insult were so complex and vexing. Trying to deal with these issues, and not just the money, became too demanding. (Only later did I realize that one never escapes these issues in life.)

In persuasion, we have to understand the motivations of those who we seek to persuade. Sometimes money will do the trick with nothing more needed. Sometimes we can reason with a truly neutral decision-maker (but even a neutral judge wants recognition and acclaim for her wise decision). But often the overweening issue remains thymos, the demand for recognition of our fundamental dignity and the need to rectify any insult to its integrity.

Just as we still refer often to Aristotle’s trio of logos, pathos, and ethos as hallmarks of persuasion, we should appreciate Plato’s understanding of humans as motivated by desire, thymos, and reason (logos). (Desire is the dominant motivation, reason the least powerful.) Understanding and using these insights provides us with a better appreciation of those we seek to understand and persuade.

N.B. The post below, formatted by Readability, is mine own from one of my other blogs. I’m most happy if you want to visit there, but you don’t have to receive the full benefit of the comments above without any additional effort.

“Thank you, John Ralston Saul”: The End of History and the Last Man by Francis Fukuyama

  • by Stephen N. Greenleaf
  • 4 min read
  • original

At the Jaipur Literature Festival, I looked forward to hearing a program on “History Strikes Back & the End of Globalism”. It was dialogue between John Ralston Saul & Hubert Vedrine (a former French foreign minister). I hadn’t read either author, although Saul’s Voltaire’s Bastards is packed with my other books back in Iowa City). I wasn’t sure what to expect. The Glamorous Nomad and C joined me. We were in for a surprise.

Saul opened the session by singling out “some guy called Francis Fukuyama” for writing one of the “stupidest books in the last 25 years”. In this book, Saul claimed, Fukuyama declared the end of history. Saul continued that Fukuyama then wrote another “stupid” book (unnamed) and yet Fukuyama still makes money. I was flabbergasted, while C and the Glamorous Nomad (who’s read Fukuyama’s The Origins of Political Order) simply walked out. I was shocked and puzzled. Also angry, but this bit of intellectual character assassination intrigued me enough to stay. I’d read The End of History and the Last Man about 15 years ago or so, and I’d thought it brilliant. Had I missed something?

The good news from this is that it’s led me to re-read The End of History and the Last Man (1992; with a New Afterward, 2006). (I’d purchased a copy here in India last October because I thought it worth a re-read; perhaps a bit of intuition here). To start with the conclusion: the book is brilliant. It’s one of the best books about politics that I’ve read. It is also one of the most discussed and criticized books about politics since its publication. Saul’s low blows aren’t new or novel. Why so? I suspect because few people have read it carefully or have grasped its true significance.

What Fukuyama wrote, shortly after the fall of Communism in 1989, was that History (may have) come to an end. (I know: China, North Korea, Viet Nam, and Cuba—these regimes survived, but Communism as a living ideology was dead, a few zombies notwithstanding.) Fukuyama, building on the work of Hegel and Hegel’s 20th century interpreter, Alexandre Kojeve, argues that liberal democracy may have answered as fully as possible the “struggle for recognition” that has driven History. By the way, there is history and then there is History. “History” with the capital “H” is not a Teutonic affectation on my part, but it’s the term for the Hegelian understanding of the fundamental pattern of change in human history. (With a small “h”, history is the story of the stuff that happens.) Hegel believed that History came to an end in 1805 at the Battle of Jena, when the ideas of the French Revolution, imposed by the military might of Napoleon, defeated the forces of reaction.

Fukuyama’s intellectual project and linage are not familiar to most readers. Few have any direct knowledge of Hegel. Most, like me, only learned about Hegel as the precursor to Marx. I expect only a handful of persons know of Kojeve. (I didn’t.) Thus, History is a new concept to most readers, and many seemed to have confused the End of History with end of stuff happening, which isn’t what Fukuyama argued.

But History isn’t the most important subject of the book for me. The most intriguing part comes from Fukuyama’s project of reinstating thymos into our understanding of human motivation. If you’re read Plato’s Republic (or about it), you know of Plato’s tripartite division of the soul into Reason (logos) on top (for the Philosopher-Kings) and desire (appetite) at the bottom for the masses. In the middle, he places thymos, often translated as “spiritedness” for lack of a better English equivalent. This attribute manifests in the Guardians, the warriors who protect the polis. Fukuyama notes that thymos dominates in aristocratic warrior societies. Thymos receives a new and unique treatment in the Anglo-American liberal tradition starting with Hobbes and Locke. To deal with “vainglory” or “pride” (as manifestations of thymos), these authors and their successors—including Madison and Hamilton—work to subsume thymos under the devices of desire. Bourgeois man becomes interested only in fulfilling desires and living rationally. So Anglo-American tradition argues and hopes. But fortunately for the U.S., Madison, Hamilton, and their peers knew that strong men will still strive, and they put in place many checks on power. In the German tradition, Hegel puts thymos front and center as a part of the “struggle for recognition” that drives the dialectic of master and slave (or lordship and bondage, if you prefer). This struggle for recognition drives History. With the French Revolution, the Christian project of equality before God now translates into equality between individuals in the social and political realm. Work becomes dignified as a replacement for the thymotic urge to prove one’s worth on the field of battle, the warrior-aristocrat ideal.

Fukuyama also discusses whether contemporary liberal societies will see a true End of History by granting recognition to all and by channeling thymotic urges into more productive pursuits than war. Fukuyama points out that among all the factors leading to the outbreak of WWI, we shouldn’t ignore the popular expression of thymos that led millions to greet the coming of the war with glee. Many greeted the war as an outlet for pent up desires. This is an astute observation. Now, perhaps, war has become too terrible for its use as such a popular outlet for thymos. Fukuyama also explores whether the twin ideals of liberty (which fosters outlets for thymos in individuals) and equality (our urge to see each acknowledged as equals) can co-exist over a long period as often antagonistic goals.

Fukuyama levels a sharp critique of realism in international relations, especially in its academic guise typified by Kenneth Waltz and John Mearsheimer. Fukuyama argues that academic realism posits that nothing has changed since Thucydides and that nations are motivated only by the desire for greater power viz. any potential rivals. Changes (history) in the motivations of actors or the system of international relations count for nothing in the purer forms of realist theory. Fukuyama is certainly correct in his critique. Legitimacy has become a major touchstone of action in the international realm as well as in the domestic realm.

I highly recommend this book. Fukuyama isn’t as naïve or brazen as his detractors would like to portray him. Like Thucydides and Machiavelli, Fukuyama examines the world today to gain deeper insight into the most significant issues in political thinking.

Postscript: If you want to see and hear John Ralston Saul’s attack on Fukuyama (and Hubert Vedrine’s more measured comments, go here, starting about 3:40 minutes. My question in defense of Fukuyama and challenging Saul comes at 49:45. I didn’t speak as artfully as I would have liked, but I think that I get my point across. The answer is vague. In fact, I believe I have a good deal of sympathy for Saul’s perspective, but his modis operandi in attacking Fukuyama and Huntington was disgraceful. He should—as should we all—at least accurately and honestly state our adversaries’ positions if we are to attack them in abstentia.

Persuasion, Ethics, and the Ethical

The post “Great Cicero’s Ghost” by Mark Bennett, a Houston criminal defense lawyer, centers on the issue of criminal representation and how far a criminal defense lawyer should go in representing a client in a matter such as rape. Believe me, folks, this is tough territory. I know from experience. But whether you’re a criminal defense lawyer or a parent going before a PTA meeting, ethics is a part of persuasion–an integral part. The post below should all remind us of this: the practical and the ethical are a part of a continuum of considerations in deciding upon a course of action. In law, we break down ethics into the rules of the game set by the bar and enforced as la and whatever personal scruples  that we may add (or, as the post suggests, shouldn’t add in) in addition to the rules.

Bennett’s post could serve as a checklist  in building a case of persuasion. If you think that few consider ethics in building arguments, I’m sure you’re right. But that doesn’t mean that you shouldn’t do so.
P.S. The Cicero quote at the end is on point. I’m not so sure of the author’s final line, but it’s something that every advocate must consider.

N.B. This original post has been altered, as Mr. Bennett took exception to including his attributed blog in full in the body of the post. Instead, I now have the link above. I do recommend reading  his blog via the link. I’ve apologized to Mr. Bennett for the offense he took when I included the body of his blog at this site.

Appellate Oral Argument: Ideas to Improve the Process

This blog post courtesy of Appellate Advocacy Blog & the article that it cites give occasion to think about oral argument. Oral argument before an appellate court is the epitome of lawyering, or should be. I love it. You hone your argument, anticipate questions, and get (appropriately) psyched. This is why you (or I, at least) went to law school. The courtroom is usually big-league (my one trip to the top of the Eagleton Building in St. Louis for an argument to the 8th Circuit was especially impressive). You begin your argument and find the judges lost, indifferent, or hostile.

What happened? The fact is, they may not have been well prepared, or they may have thought along v different lines than what you had expected. Either way, the argument becomes a letdown and perhaps your case goes down the drain.

The  blog (and article) suggest ways that judges might improve the process by providing advocates with tentative decisions upon which to base their arguments. A trial court decision may have already done this, but in my experience, trial courts don’t get much play except to the extent that their findings of facet receive deference.

Even if you jurisdiction doesn’t adapt these suggestions, they provide a useful thought experiment for advocates preparing an argument.

 

 

Above All, Clarity in Writing Briefs (and Almost Everything Else)

This post, the conclusion of a Top Ten countdown from the Lady Legal Writer, culminates with the correct #1: be clear in your briefs. Write clear sentences; write clear paragraphs, write clear headings, and be very clear about what you want. If someone takes just one thought from this blog, I recommend that you concentrate on the fact that judges are human, just like you and me. Judges suffer from too many cases to decide, too many briefs to read, and too little energy to complete their tasks as they would like to. So what should you as an advocate do? Make your judge’s life–or at least your little speck of it–as easy as possible. When arguing to a judge, either orally or in writing, make your argument as clear and succinct as possible. Do the contrary only if you prefer that your judge not understand you argument.

This whole series–Commandments 10  through to 1–are worthwhile. Earthshaking, no; but unless you never need reference to the fundamentals, the series bears reading in full. (Also, in this last post, she provides an example of some really purple prose. I’m favor more vivid legal writing, but this stuff could merit a Bulwer-Lytton prize! )

 

Damn the Citations & Go Write Ahead!

Okay,  with apologies to Admiral Dewey (“Damn the torpedoes and full speed ahead”), I couldn’t resist the caption. The point, set out by my favorite legal writing guru, Bryan Garner, is that citations out to be relocated to the bottom of the page because they make reading the text so much more difficult.

Amen.

With word processing, such a move is easy and without any major downside. If, at time of reading, you want to check the citation, it will be there (and if in an electronic document, with an appropriate hot-link to boot). But when reading for the gist of the argument, the use of footnotes for citations would make the reading and comprehension a great deal easier. Don’t we want to make our lives, including the lives of our judges (seriously), easier? Of course. Garner reports some courts have already adopted this better practice. More of them should do so.

You can read Garner’s ABA Journal article here.

Agile Lawyers Needed: Change Is Here

How we lawyers operate is changing–fast. I found this post from The ABA Journal by Jordan Furlong titled “The Agile Lawyer Will Rise as Permanent, Full-Time Employment Vanishes”  interesting because it reflects my path in some ways. I practiced very traditionally for a long time; first as a law clerk, then as an associate in a firm in Champaign, Illinois (while my wife was in graduate school), and then for 29 years in Iowa City at the same office (moving from associate to partner). Now, over the last 17 months, I’ve done something very different (working with an Indian LPO) and now I’ve embarked on freelance lawyering, which is in its infant stages (i.e,. I’m still looking for work if you need help). This article tells me that I’m not alone and that I may have (inadvertently) caught a wave to ride, for better or worse.

 

The Presumption of Innocence: Tough to Sell for a Hot-Button Issue

When you represent a defendant in a criminal jury trial, you almost always have to depend on the presumption of innocence instruction to give your case a boost. I know that I did. I was usually able to provide an alternative account of what happened, but with the presumption, the defense can prove a tough sell. So as a part of voir dire, I’d ask jurors about the presumption of innocence. Inevitably, jurors would affirm their agreement with the presumpution and agree to follow it. And, for the most part, I think that they did. But not always. Some issues could prove too instinctual.
In one case in particular, a misdemeanor no less, I thought that the State had a lousy case, almost laughable. In short, a student was accused of “harassing” another student, albeit one who as a well-known athlete. To my continuing regret, I became a bit arrogant about the whole thing. The persecutor in closing suggested that my client could have been like the crazed fan who attacked and stabbed Monica Seles during a tennis match. I was shocked. And then the jury found my client guilty and she spent some time in jail for the matter. (The judge’s sentence shocked me, too. There was no end to this.) I fear that the jury was led by a bias in favor of the athlete that overturned any sense of proportion and skepticism. The presumption seemed to have flown out the window. (By the way, my client did harm nor did she threaten harm to the alleged victim.)
I recount all of this because as lawyers we learn and then live the presumption of innocence and burdens of proof. Most people don’t think these thoughts nor live these principles. I find that burdens of proof and the presumption of innocence with their long pedigree in the common law actually work quite well for most situations in life involving uncertain facts and possible outcomes. But then I’m different, indelibly different, since I’m a lawyer, and a trial and appellate lawyer for over 30 years to boot. My mind is warped, even if in a good way (as I believe that it is about this issue.)
Feeling thus mostly alone in the world when it comes to issues like the presumption of innocence and burdens of proof, it’s a real treat to find a non-lawyer (I presume) who gives such an excellent and practical defense of these principles. These principles can and should apply in daily life as well. It’s nice to have such a sound defense at hand. Wes Alwan is a regular on the podcast The Partially Examined Life, a must if you like to hear a worthwhile (and sometimes humorous) discussions of philosophy and philosophers.
I highly recommend Alwan’s post on the allegations against Woody Allen.

Constance Hale on Drafting a Scene

Just a short while ago I posted a piece by Roy Peter Clark on vivid storytelling, and then I came across this post from another writing guru, Constance Hale at sinandsyntax.com. Since I think that their messages reinforce one another, I thought I should reference this post as a complement. Don’t get me wrong, I’m not suggesting the you write briefs that way that you’d write a New Yorker article, nor that your brief should land you an invite to the Jaipur Literature Festival (#ZEEJLF). However, you do want to engage your audience, whether adjusters,  opposing attorneys, judges, or jurors. All want to be engaged (well, I’m not sure about insurance adjusters, but I grudgingly admit that they are human, too). So if an event happens somewhere, describe it as best you can using the principles set forth Hale’s and Clark’s posts.