Tag Archives: litigation

Philosophy of History for Lawyers & All via Collingwood

Below is a review of the Principles of History that I wrote for my personal blog. So why include it here? Because Collingwood’s work in the philosophy of history (and historiography) offers insights and reflections on how we make decisions about the past–that is, about almost everything! For instance, a trial is an inquiry into past events. Following is a brief dicussion about what I think Collingwood writes that applies  to persuasion, argument, and judgment.

For Collingwood, historians don’t just blithely accept the testimony (most often written) of witnesses, but they must inquire of it. They must test it. Sound familiar, lawyers? Indeed, Collingwood provides an extended analogy of a detective mystery that might have served as a plot for his contemporary, Agatha Christie. Various witnesses make various statements that they claim are true, but some (or all, to some extent) are lying, mistaken, hiding something, and so on. One must build a case whether one is a historian (going to the time before memory can serve directly to provide information), a lawyer, or a detective. Collingwood argues that the historian should use a question-and-answer template for accessing the evidence. Of course, you don’t have live witnesses (at least not in front of you under oath), but the historian or lawyer does have multiple sources of evidence  to compare and contrast.

Collingwood also emphasizes the role of imagination in formulating a historical narrative. We can’t retrieve all of the facts, sometimes because we simply don’t have the evidence, or sometimes the evidence may prove too voluminous. But we can fill in details–for instance, we can be confident that the underside of a table exists although we cannot see it. (Okay, we could get off our cans and look, but you get the point). So with narratives in litigation: we must fill in blanks, and we test the proposed narratives through the adversarial structure of a trial. A judge or a jury determines, in effect, who has the best story according the criteria of which side provides the most compelling account of what happened in the past as considered in the context of the existing law (including, quite importantly, the standard of proof.

The sampler above gives you some taste of how I believe the Collingwood’s perspectives apply to litigation and persuasion. It’s more than a matter of my long-standing infatuation with history. Collingwood’s well-written and very accessible arguments provide us reasons to think about how we prove (or disprove) a perspective on the past, which is the stuff of litigation and a lot of ordinary life.

My review:

Taking Readings: SNG Thoughts

A reader’s journal sharing the insights of various authors and my take on a variety of topics, most often philosophy, religion & spirituality, politics, history, economics, and works of literature. Come to think of it, diet and health, too!

Monday, February 2, 2015

The Principles of History & Other Writings in the Philosophy of History by R.G. Collingwood

Principles of History cover

Sometimes awe and modesty compel us to brevity where otherwise we’d feel need to blather on at length. This will be a short post, not because the subject doesn’t merit a lengthier treatment. To the contrary, it merits so much more. So I hope that this post is just in the way of a trailer or preview of what I hope in time to consider at more length.

R.G. Collingwood is a late arrival on my radar. In fact, he was probably a part of my undergraduate syllabus in my Philosophy of History course, but he didn’t stick. Now, I’m learning about him, as he keeps popping up, as it were. Last year in India, I bought a copy of The Idea of History, his masterwork, which The Times Literary Supplement selected as one of the most influential books published since the Second World War. But I haven’t read that book yet. So why this book, less famous and published much later?

First, it’s on Kindle, which means that it is accessible to me know (unlike my copies–yes, copies–of The Idea of History now in storage). But perhaps an even better reason—or excuse—for reading this first book comes from the history of the writings themselves.

R.G. Collingwood image

By the late 1930s, Collingwood, then in his early forties, knew that his health was failing. He went on a writing and publication flurry. He’d lectured at Oxford on various occasions in the 1930s about his philosophy of history and historiography. In 1939, during a long cruise intended to bolster his health, he began writing The Principles of History, a companion of sorts to his book The Principles of Art. However, because of his failing health, the advent of WWII, and two other writing projects he wanted to complete, he set the project aside. Death took him in early 1943, with his work about history unpublished in book form. After his death, literary executor, T.M. Knox, brought together several of Collingwood’s writings, including lecture notes, and published them through Oxford University Press as The Idea of History. And as I mentioned, it proved quite a success (at least according the standards of its peer group.) Knox left out some papers, but the source was considered exhausted. Except it wasn’t.

In 1995, archivists at Oxford University Press discovered the (uncompleted) manuscript of The Principles of History that Collingwood has written during his 1939 cruise to Indonesia. They also discovered some papers on other topics as well. The new materials didn’t reveal any startling new positions or arguments made by Collingwood, but they helped to complete his positions and to reveal his overall plan. He’d intended to publish two volumes on the subject of history. The Idea of History covered much of this area, but not all of it, nor in the manner that Collingwood had intended. The Principles of History helps to fill the gaps. Given the depth and significance of Collingwood’s thought, this book provides us with even deeper insights into his unique and compelling ways of thinking about history.

I hope to explore the topic of history and knowledge in depth in a project that I’ve dubbed “history as a way of knowing” (or perhaps history as the way of knowing), which will trace the ideas of Collingwood, Owen Barfield, and John Lukacs and show how their thoughts can inform our thinking. In the meantime, if you’ve any interest in how we think about history and how we judge its fruits, you must read this book

 

 

Negotiating with Strength by Using BATNA

I intend the caption to have a double meaning: negotiating with another who has greater strength and negotiating strongly with that more powerful adversary. This happens in almost any case involving an insurance carrier or corporation: they will inevitably have more money and personnel to deal with the issues than a plaintiff’s attorney and the client. How to get around this–or at least minimize the differences–is a key challenge. I recommend this article because I’ve been in this situation so many times before. I like the recommendation of systematically reviewing considering the options, the BATNAs.

Riffing off of Fisher & Ury’s Getting to Yes, the fine blog At Counsel Table gives some examples of how to pull this off in the context of litigation and mediation.

 

How to Lose an Appeal from Judge Kozinski

Below is a link to a law review article. Normally, I’m not out to punish readers, so you may ask why I have included a law review article. Fair enough. I have done so because it’s a tongue-in-cheek article written by 9th Circuit Judge Alex Kozinski. Its topic is straight forward: how to lose an appeal. Kozinski focuses on the two tools available in an appeal: the brief and (if you get it) oral argument. Kozinski even points out that the ability to lose an appeal allowed LBJ to win an election and for Abe Fortas, the author of the losing brief, to gain a seat on the U.S. Supreme Court. Any guesses about who appointed Fortas? Anyway, the article is a bit dated (1992), but only because it’s from before the era of word count limitations made possible by word processing software. Otherwise, I think that the advice is timeless. Enjoy.

Kozinski The Wrong Stuff

 

The Importance of Empathy (Lawyers Ed.)

While Oscar Wilde makes us think of the importance of being earnest in his comedy of manners, Brene Brown goes beyond earnest to the much greater challenge of being empathic. It’s not easy.

What relevance has this for lawyers? We lawyers have to work with people. If the truth be told, for all our vaunted ability to reason and write, it’s our people skills, our ability to convince by persuasion, which sets outstanding lawyers apart. And the deepest connections come through empathy. But there’s a catch: in order to act empathetically, we have to remain vulnerable, exposed. Ay, there’s the rub. For what self-respecting lawyer, especially one engaged in the slings and arrows of litigation, wants to reveal vulnerability and all that it entails?

What we often opt for instead is sympathy, which is quite different from empathy. Sympathy, according to Brown, disconnects us from the Other, while empathy draws us together with a person. Empathy is fellow feeling; sympathy is “That’s too bad. Now please take it away.” Empathy requires commitment and revelation; sympathy does not.

I can immediately think of two areas where we lawyers should practice empathy. First, with our clients. Think of the husband or wife who has to come in about a divorce, the parent of a child hauled into juvenile court, or the family that’s lost a loved one because of an act of negligence. How to we respond to them? It’s tough. Most clients want someone to serve as their champion, not a shoulder to cry upon. Yet, at least after a while, I think that they like to know that a human being and not a litigating cyborg represents them. (Corporations, however, may prefer litigating cyborgs.) For instance, if a client becomes involved in some form of litigation, the bad news won’t end soon. (Just the thought of a lawsuit is bad enough). Questions and doubts, hard decisions, fears and anxieties, all are likely to surface and require attention. The lawyer must balance empathy while not losing the professional judgment and demeanor that will merit a reasonable (but not absolute) degree of client confidence. It’s a fine line to walk.

The other arena in which lawyers can apply empathy is with our fellow practitioners. Let me ask this: Is there a more shitty feeling than having lost a jury trial that you know you should have and could have won? I have a hard time thinking of worse times, and I’ve suffered through more of these than I care to remember. (Adverse written decisions aren’t much better, but they seem just a bit less of a punch in the gut.) I’ve greatly appreciated calls from colleagues after a loss, those who’ve suffered similar fates at times in their careers. It doesn’t make it all better, but you do have a sense of a bit less loneliness in your misery, which certainly helps. Victory has a thousand fathers; defeat none. But at least you can have some who can mourn with you over your failure.

Without further ado, here’s the website for the Brene Brown piece. She’s a very engaging speaker, and I must also recommend this site to you. Brain Pickings blog, from which this post is taken (recommended reading)  provides high quality and consistent content on a number of topics that lawyers and others will find interesting.

 

David & Goliath by Malcolm Gladwell: Strategy for Underdogs

This review that I wrote earlier qualifies here for at least two reasons:

  • It deals with conflict, and like it or not, we all engage in conflicts daily. For lawyers, any lawsuit, from a breach of contract to a dissolution of marriage to a personal injury claim, involves conflict. We all have to consider our relative powers,  abilities, and weaknesses. How can the underdog change the game, take advantage of a weakness, or alter the playing field? Gladwell addresses these issues.
  • Gladwell features a chapter on David Boies, one of the premier litigators in the U.S. Boies “secret” is simple yet profound.

Let me ask you a series of questions:

Can a team with only mediocre offensive skills and limited physical gifts regularly beat teams that are more talented?

Are larger classes sometimes better for learning than smaller ones?

Might an accomplished young woman interested in science find career success by attending a state university instead of the Ivy League school that admitted her?

Might a guy with dyslexia (a serious disorder that affects reading ability) do well in a legal career?

Can a physician with a very troubled youth develop a breakthrough protocol for treating a fatal childhood disease by ignoring colleagues and forcing patients (and parents) to push through the pain?

Can an oppressed minority gain rights and dignity through tricking the oppressor into dumb moves?

Can the campaign of a heart-broken father to limit crime after the murder of his daughter backfire into promoting more crime?

Can forgiveness provide a stable and fulfilling way of responding to horrific loss?

Can a small group of dissenters thumb their noses at Vichy and Nazi officials and openly harbor Jews, saving them from internment and death?

Can David beat Goliath?

If you’ve ever read any Malcolm Gladwell, you will know that the counter-intuitive answers to some of these questions are Gladwell’s answers. Gladwell opens his latest book, David and Goliath: Underdogs, Misfits and the Art of Battling Giants by explaining how David’s victory over Goliath was not so great an upset as we’ve come to believe. David, as an expert with the sling (not an unusual talent in that time), held a real advantage over the armor-clad, pituitary case (Goliath) that he faced. Like the game of rock-scissors-paper, each strategy entails an effective counter-strategy. So a girls basketball team, coached by an Indian immigrant father with no basketball experience, used the unorthodox strategy of an aggressive full-court press to win games and go the national tournament. (Gladwell journeys into basketball lore to describe the education of Rick Pitino about the value of the press. I must add that the press is under-utilized still. I loved it.) If you don’t have rocks, use paper

As Gladwell often does in his writing, he weaves insights from social science into real life tales, and in doing so, he challenges the easy assumptions we tend to make. In two segments involving education, he challenges a couple of common assumptions, assumptions that cost a lot of money and that have very serious repercussions. First, he explores the assumption that smaller class size always improves student achievement. Gladwell finds that class size, like many things in life, has a sweet spot—a Goldilocks point—that is neither too large nor too small. In smaller classes, there may not be enough variety to facilitate a desired give-and-take for discussion and projects. Thus, the class never reaches its full learning potential. Gladwell concludes (and I intuitively agree) that outstanding teachers are the key to educational success, not simply more teachers. Rather than paying outstanding, experienced teachers to retire early to hire some additional new, untested teachers, we should work to keep outstanding teachers working as long as possible. (Yes, I’m thinking of C, for an example, although she’s still working.)

Another very interesting point involving education addresses the issue of college choice. Gladwell uses the instance of a young high-school student interested in science who goes to Brown (an Ivy) rather that her home-state University of Maryland. Because of the intense competition and high-skills range, Gladwell’s young woman abandons science as her major. She tried to make it as a big fish in a big pond, but as statistics show, this is tough. Those who succeed tend to be those who succeed in comparison to their peers in a particular environment, whether at State U or an Ivy League college. For young people making excruciating decisions about where to go to study or where to go to continue playing a sport, this is vital information. (Of course, the Ivy League works well for some, as I know a couple of Ivy League grads whom I think have done quite well.

Another tale that interested me especially was that of David Boies, one of the premier trial and appellate lawyers in the nation. Boies has dyslexia, which makes reading very difficult. To compensate, he learned to learn by listening—listening very carefully. Boies didn’t go to college until a bit later in life. He ended up graduating from Yale Law. (I guess his Ivy League choice worked out okay, too.) One strategy he used in law school was to read the synopsis of a case rather than a whole opinion (a lesson there, I think). And he listened—very carefully. (I suspect that careful listening is a skill that most of us, including lawyers—or especially lawyers?—too often fail to practice.) Boies chose litigation as a field because it didn’t require as much reading as corporate law would have. (Still, there’s still plenty to read in litigation.) Interestingly, unlike most lawyers, Bois doesn’t read for pleasure, either, reporting that he only reads about a book a year. Boies learned to compensate for his disadvantage and by doing so, cultivated skills that allowed him to rise to the top of his field.

From the list of questions at the beginning of my review, you can discern some of the other topics Gladwell addresses. Gladwell has mastered this genre. Gladwell, along with Michael Lewis, Daniel Pink, and a few others, has learned how to weave nonfiction narrative into social scientific insights in a manner that is both instructive and entertaining. Gladwell’s counter-intuitive insights and arguments challenge us to consider what things may not work the way that we easily assume they do.