I know a lot of fancy dancers,
people who can glide you on a floor,
They move so smooth but have no answers.
When you ask “Why’d you come here for?”
“I don’t know” “Why?”
Cat Stevens, Hard Headed Woman
Critics are like eunuchs in a harem; they know how it’s done, they’ve seen it done every day, but they’re unable to do it themselves.
Brendan Behan
As I listened over the last three days to the delayed audio stream of the US Supreme Court arguments in the Patient Protection and Affordable Care Act cases, I was struck once again by a singular failure inherent in many so-called “intellectuals”: while they seem able to criticize with facility, they seem utterly unable to create.
I am uncertain why this is. It seems to me that this form of intellectualism arises either because tearing things apart eruditely is so much easier and so much more immediately impressive to other self-identified intellectuals suffering from the same malady, or because of a constitutional lack of courage which prevents someone from attempting the creative process due to its inherent and significant risk of failure. Or, perhaps, both are at work and inextricably intertwined.
The practice of law is replete with this kind of failure, partly because lawyers are trained to spot issues and, therefore, to be risk averse. And, since lawyers usually come from that sector of humanity that has anointed itself as “intellectual,” they believe that the parsing of issues, when taken as an activity in and of itself, is a singularly striking demonstration of intellectual acuity for which they should always be roundly applauded. This type of failure most often appears in the practice of law when clients ask us whether some proposed activity is legally permissible. Often, the lawyerly response to this request is a suggestion that the activity under examination is full of identifiable risks and therefore to be avoided, or that the desired activity simply cannot be done at all in the manner in which the client seeks to engage in it. When the latter conclusion is reached and the lawyer comes to a full stop without more, it becomes apparent that the notion of taking the additional step of actually telling the client how they might legitimately engage in the desired activity is one that is beyond the grasp of many lawyers.
This problem first came to my attention several years ago when a former partner suggested to me, late one evening just as I was leaving for my extended commute to the farm, that I took far more chances than any other lawyer he knew. As I drove home I fumed over this remark, concluding that my partner must be accusing me of some form of malpractice. The next morning I eagerly awaited his arrival, and when he finally went into his office I was close behind under a full head of steam as demonstrated by my shutting his door with some considerable emphasis. I began the conversation aggressively by asking him if he was accusing me of malpractice. He was genuinely astonished at this suggestion and responded: “No, that’s not the point. You tell people what to do. Nobody else does that.”
I, in turn, was rendered speechless. It had simply never occurred to me in my angered ruminations over the previous evening’s conversation that this was what he had been trying to say. And, these many years later, I am still astonished when I consider the statement, for it seems to me that the essence of service (and ours is a service profession) is assisting others in the achievement of their goals. Relentless negativity toward specific proposals is of no utility whatsoever to an aspiring client.
The health care arguments reminded me again of this moment of discovery. Appellate court argument is a rarefied world unto itself, especially when engaged in at the highest court in the land over what may well be the most hotly debated subject of concern in the last fifty years. Whatever the layman may think, appellate court argument is not about making a scholarly argument to a politely listening panel of judges who are willing to be persuaded to your point of view. Rather, it is more like a rugby scrum in which the lawyer, as the proponent of some particular proposition or other, more often resembles the ball than an active participant in the game. The most significant difference between appellate argument and rugby is that the judges are far more likely to want to carry their own ideas over the goal line than those expressed by the lawyer.
In such an atmosphere, the appellate lawyer’s best opportunity to be effective comes from the kind of questions that judges love to impale them upon; the times when the appellate lawyer is asked to present a unifying justification for their point of view that will permit the court to reach the conclusion the lawyer is seeking. When offered in the context of an issue as sizzlingly hot as health care, these sorts of questions are disguised opportunities for the lawyer to be highly creative by offering the court a profound, justifying intellectual equation that will subsequently prove to be the quintessence of the court’s final ruling on the matter at hand.
These opportunities, when offered, are no doubt frequently accompanied by a Cheshire Cat-like smile on the face of the propounding judge; a smile steeped in anticipation of the presumed meal of annihilation to come.
As I listened to the audio replays of the health care arguments, I was struck repeatedly by how often the lawyers under interrogation failed to meet these opportunities either by responding that they had no such justifying equation or by being reduced to a form of blitheringly idiotic, almost incomprehensible response that would not have proven persuasive to a 6-year-old, much less a meat-eating Supreme Court Justice. I was equally struck by how often the propounding Justice seemed eagerly poised for his or her impending meal of hapless counsel.
Both of these images appear to me to be from the same coin of ineffectual intellectualism – one heads and one tails. The lawyers knew they were being lightly broiled and basked in the sauce of the Justice’s choosing. The Justices were all too often eagerly poised to demonstrate anew their own unique form of wit and wisdom in the only way they know – by means of the intellectual dismantling of haphazard counsel unable to avoid the offered skewer.
In fairness to the lawyers involved in the health care case, none of them were truly made a meal for they exist at a sufficient level of expertise to avoid being consumed to the last jot and tittle. There were, however, more than a few close moments. When the Supreme Court engages in the described behavior, the Court and the participants can be excused. After all, their job is to parse the arguments and find what is or isn’t permissible in law or under our constitution, and this kind of rending and tearing is how that result is best achieved. One could only wish that the participants didn’t seem to enjoy their own wit so voraciously and contentedly. I strongly suspect that had there been a cocktail hour for all participants, lawyers and Justices alike, behind the scenes after all the arguments had concluded, there would have been many a smug remark about the quality of the show they had collectively put on for the listening public.
But, I digress. From my point of view, the sort of erudite rendering and tearing which is unaccompanied by a proposed alternative solution to the matter under consideration is, all too often, nothing more than a form of elitist, anti-intellectualism. It is easy to poke holes in another’s argument; it is far more difficult to ponder the sources and reasons about why a particular problem might exist and frequently frightening to be the one proposing a solution. The trick to taking any action is to see the “problem” at hand as an “opportunity” to move forward, and those who can do no more than criticize any solution others propose without the offer of an alternative proposal lack the ability to make this transition.
When, instead, you have a team of people focused upon finding a solution to a problem working in an atmosphere which encourages suggestions no matter how wild-eyed they might seem at the time offered, the resulting energy is palpable and mutually infusive. While there may be a leader in these situations whose ideas predominate, it is often true that no single person can claim credit for the germ of the final, successful idea that resolves the problem. This is because this form of intellectual creation elevates everyone, and even the criticisms of a proposed solution that eventually proves to be ineffectual become the source of new ideas that lead to refined solutions that actually work.
This is one of those pieces where I just needed to say what I feel is important. I have no illusions that I can change someone who is inherently not a risk taker into someone who is, although I do know non-risk takers who have moved significantly along the continuum toward risk taking from the point where they began. When such movement occurs, it is usually because someone the non-risk taker respects offers them encouragement and honest evaluations of their thoughts when they display a tendency to back-slide.
When the time comes that I have said all I have to say to clients as their lawyer and am done with the practice of law, I only hope that I will be remembered as someone who encouraged them in their endeavors. My clients have given me a great deal of enjoyment by engaging in their many plans and schemes and offering me the opportunity to help them solve their own particular puzzles, and for that I thank them.
If I have any regrets about the practice of law, it is that my former partner – and his many kindred spirits – will never likely know this kind of pleasure.
