Keeping Your Own Counsel

Simple Strategies and Secrets for Success in Law School (A Companion to the Book of the Same Name)

COUNSELING CARSON: A HOST OF PROBLEMS

     [The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]

      In the over-the-top climactic scene of The Devil’s Advocate (1993), law firm leader John Milton (Al Pacino), revealing himself to be the Devil, explains to junior lawyer Kevin Lomax (Keanu Reeves), “[T]he law, my boy, puts us into everything: it’s the ultimate backstage pass!”

     One attorney for whom that became literally true is Henry Bushkin, whose deeply disillusioning memoir, Johnny Carson (2013), recounts his service(s) from 1970 to 1988 to the legendary host (1962-1992) of NBC’s The Tonight Show.  

     Law (and pre-law) students, and lawyers, might well find professional wisdom and warnings amidst the book’s numerous anecdotes of Carson’s charm, charity, chintziness, cheating (at tennis, and in marriage) and churlishness.    

    ● The lawyer as factotum

      In the book’s second paragraph, Bushkin recalls that:

     “I was [Carson’s] attorney, although that term hardly expresses all I did; more properly, I was his lawyer, counselor, partner, employee, business advisor, earpiece, mouthpiece, enforcer, running buddy, tennis pal, drinking and dining companion, and foil.  A good portion of my job entailed cleaning up his messes—business messes, personal messes, family messes.” 

     (His first assignment “clearly bordered on ethical misconduct or possibly criminal behavior. . . . But I wanted to become his lawyer, not his conscience.  And maybe the whole thing wasn’t so illegal.”)

     Later, he characterizes himself as Carson’s “attorney, agent, personal manager, business manager, public relations agent, messenger, enforcer, tennis partner, and drinking and dining companion.  If Johnny needed something done, I was the one who did it.”  (However, he was told, “[T]he one thing I don’t need is any advice on how to run my show.  Stay away from that.”)

     In Bushkin’s job interview, Carson asked him “a question that surprised me completely.  ‘You play tennis, right? . . . If you work for me, I’ll expect you to join me occasionally.”  (“[I]n fact, I frequently threw games” to him.)

   ● Loyalty above all

     Bushkin recalls that “I met Johnny at just about the moment he had begun to suspect that the icons who were representing him hadn’t really done a very good job protecting his welfare.” 

     He came to concur that Carson “was badly underserved,” and promptly extricated his client from a number of compromising commitments. 

     After he explained the disadvantages of one such arrangement, a chagrined Carson instructed him, “This should be a lesson to you, Henry.  Don’t ever let me sign something like that again.”  (Bushkin’s account details the increasingly powerful negotiating posture that Carson developed against NBC.)

     In 1972, when The Tonight Show moved its studio taping from New York to Los Angeles, Carson proposed that Bushkin move to California, and even offered to assist him in getting other clients.  “’I don’t expect to be somebody’s only client,’ he said, ‘but I need to know that I’m number one.’”

     ● Unheeded

     In 1972, against the strong recommendation of his lawyer—and, soon afterwards, also of his accountant—Carson flatly refused to execute a prenuptial agreement with the woman who would become his third wife.  (“’This is no way to start a marriage,’ he said.  ‘Tear the g—–n thing up.’”)

    To protect himself, Bushkin “wrote [Carson] a letter that required his acknowledgment, which stated that against all advice to the contrary, he was going forward with the marriage without the prenuptial.  He countersigned the letter.”

     ● Expertise, a hard nose, and a lesson learned

     A decade later, when Carson’s third marriage broke up, Bushkin (who had handled Carson’s second divorce) believed that “now the stakes were far too high and the situation far too complicated for a man of Johnny’s wealth and stature to hire anyone other than an expert.”

     However, Carson and Bushkin soon replaced their “very gentlemanly” and “low-key” initial choice, who was “simply too nice to be in this fight,” with a lawyer “who could be counted on to be as hard-nosed as he had to be” in dealing with the “bully” representing Carson’s wife.

     Ultimately, Carson, concluding that “I’ve got to clear my head,” settled for “tens of millions more” dollars than he would have paid under a prenuptial agreement—and, when his next serious relationship began, told Bushkin: “Look, I’m not going through this b——t again.  If I ever get married again, put a .38 to my head, and if we don’t have a prenup, pull the damn trigger.”

     ● Professional distance from the client and (maybe) his lifestyle

     In 1978, Bushkin was astonished when Carson identified him as “probably my best friend” in a The New Yorker profile.

     “We were certainly friends, but. . . never did I think of him as my best friend.  I was always working when I was around Johnny, thinking of what he needed.”

     When Carson performed two shows a night in Las Vegas, Bushkin was expected to “stay in the dressing room with Johnny during [the interval between shows] and keep him occupied. . . . I was like all those guys on Entourage, except there was only me.”

     Also in Las Vegas, “Johnny encouraged me to pick a play companion out of the chorus line.  And it was clear he wasn’t going to be happy until I did.  He wanted a partner in sin, and soon enough, I acquiesced.”

     Thus, in a classic example of litotes (and with a disarmingly semi-passive voice), Bushkin states that “Many of the heady, heedless pleasures that come to kings as a matter of course also fell in my lap.  I had enjoyed many adventures in Vegas and on the road that did nothing to reinforce marital bonds.”

     Such diversions only aggravated the strain that his constant attention to, and attendance on, Carson caused in Bushkin’s marriage.  While the attorney-client relationship had “enriched and enlivened my life beyond all imagination, . . . it had also been one of the factors that led to my separation and divorce.”

     In 1980, as he and Carson were preparing to form Carson Productions, Bushkin’s “last hopes for [my] marriage disappeared,” preventing his wife from claiming (under California’s community property law) half of his interest in the new company. (Carson, then advised to similarly assess the status of his (third) marriage, simply responded, “I can’t stand the thought of a divorce.”)

     ● Guilt (or gilt) by association

     In the late 1970s, Carson withdrew from a group bid to acquire Las Vegas’ Aladdin Hotel, after being warned by a law enforcement source that one of the other people involved was connected to organized crime.

    But if Carson (who “was scrupulous to never share a political view with his viewers—‘Why lose fifty percent of my audience?’”) was properly worried about staining his own reputation, others would seek to associate themselves with him. 

     A few years later, The Coca-Cola Company, which had proposed that it acquire Carson Productions, invited Carson to consider joining their board of directors.  He declined, telling Bushkin: “[Y]ou know me better than that. . . . There’s nothing I would hate more.  Make sure they know I’m flattered, but make some excuse.”

     (During his third divorce, as he was asked detailed questions about the finances of his companies, Carson reconsidered: “Maybe you were right.  We should have sold the g—–n thing to Coke when we had the chance.”)

     In Carson’s other business activities, “The possibility of seeing or meeting Carson was often key to enlisting other investors or making the venture work.”

     And, according to Bushkin, “the always candid” comedian Joan Rivers (whom Carson would shut out completely after she surprised him in 1986 by launching a competing talk show on the Fox network) told Carson’s third wife, as that marriage dissolved, “My relationship with Johnny is far too important to risk it on a [continued] friendship with his ex.”

     ● Misplaced confidence(s)

     According to Bushkin, his relationship with Carson ended abruptly (and with an “awkward handshake” agreement on a severance plan, since “Johnny and I never had a written contract”) shortly after Carson discovered that Bushkin and master comedy-writer Ed. Weinberger (featured in the chapter, “Days of Weinberger and Neuroses”) were quietly considering an offer by the Tribune Company to buy Carson Productions and to retain them as participants.

     Noting that he’d been betrayed to Carson by a business associate in whom he’d confided, Bushkin declares, “[I]f twenty years in law practice had taught me anything, it’s that nobody keeps a secret.”

     Which is not necessarily correct: if someone in his professional circle had successfully held some information closely, Bushkin might never have learned of either the secrecy or the secret itself.

     ● Considerations of confidentiality and privilege

     Almost immediately after entering professional orbit around a client both saturnine and mercurial, Bushkin was privy to an inebriated, maudlin Carson’s self- and family criticism, some of which Johnny Carson quotes.

     Several hours later, after a sobered-up client asked him, “What the hell did I say?” and warned, “You must never, ever repeat a word from last night,” Bushkin reassured Carson (who died at age seventy-nine, in 2005) that “everything that is said between us is confidential and covered by attorney-client privilege.  I would lose my license if during your lifetime I repeated it to a soul.”

    Bushkin’s book might have been of even more relevance to lawyers had it expanded and expounded that summary of secrecy’s scope and span.

     Relevant sections of the Model Rules of Professional Conduct (adopted by the American Bar Association in 1983, around thirteen years after the representation here began) include Model Rule 1.6, its Comment 20, and Model Rule 1.9(c)(1) and (c)(2).

    California Supreme Court precedent involving the estate of Bing Crosby has construed the state’s Evidence Code to the effect that “the attorney-client privilege of a natural person transfers to the personal representative [of the estate] after the client’s death, and the privilege thereafter terminates when there is no personal representative to claim it” (that is, once the estate is “finally distributed” and [the] personal representative [is] discharged”). HLC Properties, Ltd. v Superior Court, 35 Cal.4th 54, 65-66, 24 Cal. Rptr. 3d 199, 207, 105 P.3d 560, 567(Cal. 2005).

      It is worth noting, though, that the United States Supreme Court, in holding (in the context of a criminal investigation) that the attorney-client privilege survives the client’s death, recognized that:

     “Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. . . . Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime. . .

     “Many attorneys act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed in order to assure sound legal advice. The same is true of owners of small businesses who may regularly consult their attorneys about a variety of problems arising in the course of the business. These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged.”

     Swidler & Berlin v. U.S., 524 U.S. 399, 407-408, 118 S.Ct. 2081, 2086 (1998).

“THE BOSS” LAYS DOWN THE LORE (AND LAW)

     [The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]

     Even those who aren’t his major fans might appreciate the artistry—and the many lessons on integrity, creativity, dedication, and craftsmanship—in Bruce Springsteen’s soulful, lyrical, and soul lyric-full memoir, Born to Run (2016).

     Springsteen’s maternal grandfather, who emigrated as a child from Italy to San Francisco, ultimately became a lawyer in Manhattan. 

     His recently-deceased mother worked as a legal secretary at Lawyers Title Inc. in Freehold:  “Truthfulness, consistency, professionalism, kindness, compassion, manners, thoughtfulness, pride in yourself, honor, love, faith in and fidelity to your family, commitment, joy in your work and a never-say-die thirst for life.  These are some of the things my mother taught me and that I struggle to live up to.”

     Among the themes of particular interest to law (and pre-law) students, and lawyers, are:

     ● The role of contracts

     In 1972, as Springsteen created the album Greetings from Asbury Park, (which “came from an unself-conscious place.  Your early songs emerge from a moment when you’re writing with no sure prospect of ever being heard”), he signed contracts that he would later characterize as “overreaching and counterproductive on [my producers’] part, leading to a lot of damage in the end. . . .

     “In the end, I would have signed [a producer’s] jockey shorts, if he’d presented them to me, to get my foot in the door. . . . I spent a few nights on my own trying to get through the biz speak, the legalese, of the contracts myself.  It was a joke.  I sat with [a producer’s] lawyer. . . who mildly explained the basic provisions of the contracts, but in the end, I just said “f— it’; I had to get in, and if these meaningless papers were the price, so be it. . . . I didn’t look back until much later, and by then, of course, it was too late.”

     Years afterwards, an independent lawyer “cheerfully informed me that these were the worst contracts he’d seen since Frankie Lymon’s.” 

     Springsteen’s reflections on the resulting litigation—and on the distinctions among his contractual, professional, and personal relationships with his producer—are well worth reading in full.

     Yet around 1988, after a “lawsuit with some trusted employees that had turned into a rather long and nasty divorce case,” Springsteen for the first time “insisted on written contracts with the band.  After all this time, to some, I suppose, it suggested mistrust, but those contracts and their future counterparts protected our future together.  They clarified beyond debate our past and present relationships with one another, and in clarity lie stability, longevity, respect, understanding, and confidence.  Everyone knew where everyone else stood, what was given and what was asked.  Once signed, those contracts left us free to just play.”    

   ● Protecting your independence

     Springsteen came to appreciate, even with regard to well-intended record companies, that “[I]f you don’t negotiate the terms of an agreed-upon partnership, your talents will be harnessed and guided in the direction others feel is best. . . . [I]f you want to fly by your own lights, reach the audience you feel your talents deserve and build a work life on what you’ve learned, value, and can do, be wary.”

     He refused to back down when record company executives insisted that he re-record the music for his second album with musicians of their choosing: “[T]hese guys thought we were just going to go away, return to our day jobs, go back to school, . . .  We had nowhere to go. . . and we loved music!”

     Over executives’ objections that they “wanted more vocal” on it, Springsteen retained the band’s final mix of his next album’s title—and career-making—track, Born to Run (1975):

     “Some [takes] had more voice but they didn’t have. . . the magic.  The singer was supposed to sound like he was fighting to be heard over a world that didn’t give a damn.”

     ● Playing to (and from) your strengths

     In 1970, after an unsuccessful audition in San Francisco, Springsteen realized that “I was good, very good, but maybe not quite as good or as exceptional as I’d gotten used to people telling me, or as I thought.”

     He soon “made the conscious decision to double down on my song-writing skills.  I felt this was the most distinctive thing I had going.” 

     Near the end of the book, he adds, “I figured if I didn’t have a voice, I was going to really need to learn to write, perform and use what voice I had to its fullest ability. . . . I studied everyone I loved who sounded real to me, whose voices excited me and touched my heart. . . . I learned to excel at those elements of my craft in a way I might otherwise never had if I had a more perfect instrument.”

     ● Establishing your role in decision-making 

     On the band’s return to New Jersey from San Francisco, Springsteen made “one of the smartest decisions of my young life,” and one which not all of his contemporary counterparts arrived at as quickly: “I was leading the band, playing, singing and writing everything we did.  If I was going to carry the workload and responsibility, I might as well assume the power. . . . Clarity ruled and allowed us to forge a bond based on the principle that we worked together, but it was my band.” 

     He later concludes, “Democracy in rock bands, with very few exceptions, is often a ticking time bomb.  The examples are many, beginning and ending with the Beatles.”

     On the other hand, Springsteen (who considered James Brown “my father, god and hero as a bandleader”) “didn’t get in your business unless I saw it was damaging what we were trying to accomplish or hurting you.”

     (“The Boss” names as one of his “primary heroes” another New Jersey-born superstar, who–although Springsteen does not note this–was frequently referred to as “Chairman of the Board.”)

     ● Mixing the downbeat with the upbeat

     Born in the U.S.A. (1984), the title track of Springsteen’s seventh album, was “inspired by” his encounters with “Ron Kovic, author of Born on the Fourth of July, [and] Bobby Muller, one of the founders of the Vietnam Veterans of America, both men who fought and sacrificed, returning from the war in wheelchairs, men who became strong activists against the war.”

     It “remains one my greatest and most misunderstood pieces of music.  The combination of its ‘down’ blues verses and its ‘up’ declarative choruses, its demand for the right of a ‘critical’ patriotic voice along with pride of birth, was too seemingly conflicting (or just a bother!) for some of its more carefree, less discerning listeners. . . . Records are often auditory Rorschach tests; we hear what we want to hear. . . .

     “Over the years, I’ve had an opportunity to reinterpret [it], particularly in acoustic versions that could not be misconstrued. . . .”

     Upon learning that president Ronald Reagan, while campaigning in New Jersey for re-election, had praised “the message of hope” in his songs, Springsteen had “two responses: The first was. . . ‘F—r!”  The second was, ‘The president said my name!’  Or maybe it was the other way around.”

     As has been noted, “some have suggested that the title of Springsteen’s propulsive We Take Care of Our Own (2012), which was used by Barack Obama’s reelection campaign (and played at the presidential victory speeches of Obama and of Joe Biden) was, in light of that song’s lyrics, intended as ironic.  [Despite the chorus, “Wherever this flag’s flown/We take care of our own,” no United States flag is visible in the video.] [In addition,] the upbeat rhythm of Glory Days (1984) masks its protagonists’ wistful reflections that their high school years were the high points of their lives.”

     Yet another track from Born in the U.S.A. whose lamenting lyrics belie its rollicking rhythm was Dancing in the Dark, (not this but) “my song about my own alienation, fatigue and desire to get out from inside the studio, my room, my record, my head, and. . . live.  This was the record and song that’d take me my farthest into the pop mainstream.”

    Before its performance in “our first formal music video,” director Brian De Palma introduced to the singer “a pixie-ish, dazzlingly blue-eyed young girl” and instructed, “’At the end of the song, pull her up onstage and dance with her.’”

    Springsteen recalls, “Until Brian told me later he’d chosen her from a casting call in New York City, I thought she was a fan!”

     ● Working from both the heart and the mind

     “I’d seen other great musicians lose their way and watch their music and art become anemic, rootless, displaced when they seemed to lose touch with who they were.  My music would be a music of identity, a search for meaning and the future.”

     (Springsteen writes of Greetings from Asbury Park, “I never wrote completely in that style again.  Once the record was released, I heard all the Dylan comparisons, so I steered away from it.”)

     “Most of my writing is emotionally biographical.  I’ve learned you’ve got to pull up the things that mean something to you in order for them to mean anything to your audience.  That’s where the proof is.  That’s how they know you’re not kidding.”

      Discussing his creation of the post 9/11 album, The Rising (2002), Springsteen writes, “my own desire to use the language I learned as a musician to sort through what was in my own head turned me to writing those songs.  First, you write for yourself. . . always, to make sense of experience and the world around you.  It’s one of the ways I stay sane.”

     For the album, Magic (2007), “I wrote [songs] in my dressing room often before the show or after in my hotel room.  It became a way I meditated before or after a raucous night.”

     ● Honoring both preparation and unselfconsciousness 

     Although he refers to his “overweening need for control” in professional settings (before performing in a London theater in 1975, he tore down, as presumptous, all of the posters and flyers promoting him: “I need a clean environment to work in”), Springsteen observes, “My good friend Peter Wolf, the great front man from the J. Geils band, once said, ‘The strangest thing you can do onstage is think about what you’re doing.’  He was right. . . .”  

     Of his 2009 Super Bowl halftime performance, Springsteen notes, “Onstage your exhilaration is in direct proportion to the void you’re dancing over.”

     ● In “New Age” terms, “creating a space”

     Springsteen recalls that, although he’d been unimpressed by a Grateful Dead concert in the 1970s, he ultimately realized that “[t]hey had a unique ability to build community and sometimes, it ain’t what you’re doing but what happens while you’re doing it that counts. . . .

     “A lot of what the E Street Band does is hand-me-down shtick transformed by will, power, and an intense communication with our audience into something transcendent.  Sometimes that’s all you need.”

     ● Getting personal and professional help when necessary

     Before auditioning in San Francisco, Springsteen performed for spiritual seekers at Big Sur’s Esalen Institute, where a “very straight middle-aged entrepreneur from Texas” told him, “I’ve made a lot of money and I’m not happy.” 

     He writes, “It’d be years before I’d have to wrestle with that one, but there was something about him that touched me.”

     Near his book’s conclusion, Springsteen discusses his battles, in his sixties, with depression: besides seeing therapists, “I’ve been on antidepressants for the last twelve to fifteen years of my life, and. . . they have given me a life I would not have been able to maintain without them.  They work.”  (Another cultural icon of the 1970s and 1980s recently noted, in his own warm and down-to-earth memoir, the benefits he found in therapy.)

     Beyond professional assistance, “The only thing that kept me right side up during this was Patti [Scialfa].  Her love, compassion, and assurance that I’d be all right were, during many dark hours, all I had to go on. . . . The only real bulwark against [depression] was love.”

     From its often-moving meditations (including details of the author’s figurative and literal dreams) to the fluidity of its writing (keyboardist Danny Federici “had the shortest highway between his fingers and his heart I’d ever heard”), from its technical details (such as the early realization that “I’d been soloing like a madman for months on a bass guitar!”) to its contextual explications (“It’s part of what made our band unique: the cross-tensions of the fifties blue-collar world and sixties social experience. . . We are pre-and post-hippie sixties soul survivors”), and to its portrayal of a dedicated artist continually in search of both his own and his country’s identities, Springsteen’s recollections and retrospections remain refreshing, revealing, and rewarding reading.

     Special note to law review editors: 

    In 2025, Born to Run will have its fiftieth anniversary, and (until September 23) Bruce Springsteen will be seventy-five years old.

    It has been nineteen years, eight or nine Springsteen albums, and seven Springsteen tours since the Widener Law Review’s symposium issue on “Bruce Springsteen and the Law.”

     Verbum sap.

THE HAYMAKER AND THE NEIGH-SAYER (28 YEARS LATER)

     [The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]

     For bravura bravado and bombast, it’s still hard to beat A Declaration of the Independence of Cyberspace, the immediately-viral rant written on February 8, 1996 by John Perry Barlow (1947-2018), who co-founded the Electronic Frontier Foundation but who is probably best remembered as a lyricist for the Grateful Dead.

     Disenchanted with the tenor of the proceedings at the World Economic Forum in Davos (Switzerland), Barlow, who (according to his memoir) had years earlier been accepted to Harvard Law School but had instead pursued a variety of other interests, proclaimed:

     “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind.  On behalf of the future, I ask you of the past to leave us alone.  You are not welcome among us.  You have no sovereignty where we gather. . . .

     “We are forming our own Social Contract.  This governance will arise according to the conditions of our world, not yours.  Our world is different. . . .

     “Your legal concepts of property, expression, identity, movement, and context do not apply to us.  They are all based on matter, and there is no matter here. . . .

     “The only law that all our constituent cultures recognize is the Golden Rule. . . .

     “We will create a civilization of the Mind in Cyberspace.  May it be more humane and fair than the world your governments have made before.”

     In 2006, in a lengthy reflection published in California (U.C. Berkeley alumni) magazine, Barlow recalled that at Davos:

     “The self-congratulatory arrogance of my hosts irritated me almost as much as Congress’ and Clinton’s [in creating ‘the ironically named Telecommunications Reform Act, which contained within it the Communications Decency Act’].  Of course, I failed at that time to have a proper appreciation of my own. . . .

     “Still, you’ll have a hard time proving to me that I was naïve in suggesting that the Internet created a kind of human immunity to human coercion that we had not seen before.  That not all of the results have been positive doesn’t alter my essential point in this regard. . . .

     “If I erred, it was in the implication that some miracle of enlightenment might arise as a result of this.  That was naïve.  We are as we are.”

     To sum up: “I’m not sorry I wrote it.  One day, I still believe, it will seem true.”

     In 2016, he insisted to an interviewer for Wired magazine that, “I do have a kind of Marxist sense of the inevitability of this shift taking place, that there will be a global commons that includes all of humanity.  And that it will not be particularly subservient to governments in any way.”

    If the issues invoked by Barlow’s attempted haymaker against legislators (and his effort to “make hay while the sun shines” for cyberlibertarianism) still resonate, so do those addressed by a contemporaneous and also-influential, but considerably more conservative, analysis.

     In Cyberspace and the Law of the Horse, 1996 U. Chi. Legal F. 207 (downloadable here), Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit  criticized the concept of a hypothetical course on “The Law of the Horse” (and by extension, on “The Law of Cyberspace,” the very topic of the conference at which he delivered the paper).

     First, that type of course would encourage “multidisciplinary dilettantism.”  Similarly, “Beliefs lawyers hold about computers, and predictions that they make about new technology, are highly likely to be false.  This should make us hesitate to prescribe legal adaptations for cyberspace.”

     Second, “the best way to learn the law applicable to specialized endeavors is to study general rules.”  A course collecting all legal decisions that happened to involve a horse “is doomed to be shallow and to miss unifying principles.” 

    Easterbrook, whose own decisions have been recommended as examples of clear and elegant writing, thus urged, “Develop a sound law of intellectual property, then apply it to computer networks.”

     He concluded:

     “Error in legislation is common, and never more so than when the technology is galloping forward.  Let us not struggle to match an imperfect legal system to an evolving world that we understand poorly.  Let us instead do what is essential to permit the participants in the evolving world to make their own decisions.  That means three things: make rules clear; create property rights where there are none; and facilitate the formation of bargaining institutions.  Then let the world of cyberspace evolve as it will, and enjoy the benefits.”

     In an ever-evolving era of generative AI, cryptocurrency, and autonomous vehicles, among other advances, law (and pre-law) students should find much of interest in comparing and contrasting Barlow’s and Easterbrook’s brief essays; in considering the ways in which the intervening years have validated, or voided, their assertions; and in assessing their current relevance to law school curricula, to career opportunities, and to efforts to create and enforce rules governing the use of emerging technologies.  (A law review might even start planning a thirtieth-anniversary retrospective on these topics.)

     At least one of the authors recognized (though in a different context) the inherent imprecision and ambiguity of his work.

     Nine years after his Declaration, John Perry Barlow wrote, in an afterword to The Complete Annotated Grateful Dead Lyrics (2005):
     “Every time someone would ask me, over the years, what I meant by this line or that, I would say, ‘What does it mean to you?’ . . .

     “The fact is, one doesn’t really know himself sometimes.”

TWELVE STEPS TOWARDS BOARD-READINESS

     It’s not too early for law students, and even pre-law students, to consider someday becoming a director of a for-profit company, and to begin to maximize their opportunities.

     Those interested might:

     ● First, review the functions of a board, which include: selecting, setting the compensation of, monitoring the performance of, and sometimes firing, senior officers (notably, the Chief Executive Officer, or CEO); consulting with senior officers on corporate goals and strategy (though not about all details of implementation); ensuring compliance with statutes and regulations; and, setting and maintaining the “tone at the top” of the company’s culture.

     Reading resources range from primers, to perspectives from business consultants, to practical legal discussions (including my own). 

     (Boards, and individual directors, are generally featured peripherally rather than prominently in best-selling business books, which more frequently focus on founders and/or CEOs.)

     ●  Second, law students might take courses in Business Associations, Corporate Governance, Business Planning, and Corporate Compliance.

    Also very useful: Corporate Bankruptcy, whose intricacies will be relevant not only to the fortunes of one’s own company, but to protecting its interests before and during any insolvencies of its suppliers and customers.

      ● Third, examine the core governance documents posted on the websites of major corporations (usually behind a link to “Investor Relations” or “About Us”). 

     You can find a company’s articles of incorporation, its bylaws, its stated (but non-binding) governance guidelines/principles, and the charters of the standard committees of its board (audit, nominating/governance, compensation; the sometimes-mysterious executive committee; and, possibly, a corporate social responsibility or ESG committee).

      ● Fourth, note the personal characteristics that these documents (particularly the governance guidelines/priniciples, and the charter of the nomination/governance committee) identify as desirable in board candidates.  

     In my summary, many such lists include:

     -intelligence, judgment, and decisionmaking skills;

     -reputation and recognition in one’s business or profession;

     -civic and community relationships;

     -professionalism, collegiality, interpersonal skills, and management skills;

     -good character, high ethics, and personal integrity; [and]

    –conforming to the values of the corporation. . . .

      ● Fifth, consider what experience, expertise, and perspectives you could to add to a board—including your sensitivity to cultural issues that might otherwise (as, notably, in 2017) embarrassingly elude a company’s management. 

     In her essay collection, Be Board Ready: The Secrets to Landing a Board Seat and Being a Great Director (2019), Betsy Atkins, an entrepreneur who has served on more than twenty boards of publicly-traded companies, advises candidates for directorships to “be crisp in distilling your career into three major digestible, thoughtful points. . . . For example: What is your industry background?  What is your functional expertise?  What stage of a company are you a best fit for?”

      The authors of Startup Boards: A Field Guide to Building and Leading an Effective Board of Directors (2d ed. 2022, by Brad Feld, Matt Blumberg, and Mahendra Ramsinghani) echo, “To be considered for a board seat, even for an early-stage startup, you need to bring something to the board that isn’t already there.  You should have enough operational experience and be senior enough in your company to have functional or industry expertise that’s additive to the board.”

     (Not all of that experience is necessarily posititve.  In their chart of relevant characteristics of board members, those authors warn boards to “Beware” of a candidate who “Has never been sued.”)

     Under pressure from legislators, shareholder activists, institutional investors such as pension funds, and (for corporations whose shares are listed on it) the Nasdaq stock exchange, companies are increasingly attentive to (and usually define very broadly) board diversity.

     The country’s largest public pension fund, the California Public Employees’ Retirement System (CalPERS), in its Governance and Sustainability Principles (2019), advises corporations (in which it does, or might, invest its millions of members’ pension funds) that:

     “Board diversity should be thought of in terms of skill sets, gender, age, nationality, race, sexual orientation, gender identity, disability, and historically under-represented groups.  Consideration should go beyond the traditional notion of diversity to include a more broad range of experience, thoughts, perspectives, and competencies. . . .”

     According to CalPERS:

     “Collectively, director attributes should include expertise in at least the following areas: accounting or finance, international markets, business, human capital management, industry knowledge, governance, customer-base experience or perspective, crisis response, leadership, strategic, planning, and competence managing multifaceted risk—including expertise and experience in climate change and other environmental risk management strategies, where material to business model or operations.”

     Similarly, the Corporate Governance Principles (2021) of the California State Teachers’ Retirement System (CalSTRS) indicates that the “skills and experience needed [by a board] include, but are not limited to, financial and/or accounting, industry expertise, business management, governance, customer service, leadership, risk management, including climate risk management and cyber-risk management, and strategic planning.”

     ● Sixth, consider what industries or market sector(s) you might be interested in counseling, and serving as a director, in; and, as the CalPERS and CalSTRS statements suggest, try to identify—and especially, to predict—risks that they are likely to confront.    

     In 2023, the SEC required boards of publicly-traded companies to disclose annually “management’s role and expertise in assessing and managing material risks from cybersecurity threats.” 

     A rule proposed by the SEC in 2022, but not yet adopted, would require disclosure of “[w]hether any member of the board of directors has expertise in climate-related risks, . . . in such detail as necessary to fully describe the nature of the expertise.”

     Ram Charan’s Owning Up: The 14 Questions Every Board Member Needs to Ask (2009) observes, “The most important lens for tracking risk is financial. . . . But [boards should] look, too, at strategy and operations, politics and geopolitics, reputation, and corporate culture. . . Some boards may want to add other categories or risk [such as those related to] information technology and intellectual property.”

      Use books, mainstream media, blogs, law firms’ “client alerts,” the press releases of companies and trade associations, and other sources to help you identify emerging (technological, cultural, demographic, political, and/or legal) risks, threats, and opportunities (including “disruptive technologies”) that might create what one legendary high-tech entrepreneur called “inflection points.”

      ● Seventh, Olga V. Mack’s Get on Board: Earning Your Ticket to a Corporate Board Seat (2019) recommends that anyone interested in a directorship “[b]ecome known as a thought leader by writing and speaking on a few key topics that are important to the success of a company.”

     Similarly, Be Board Ready suggests “regularly posting blogs or articles that illustrate your knowledge and areas of expertise.  Start by identifying topics that are discussed in boardrooms today.” 

     Even better: Write on topics, such as those referred to above, that you believe boards should be addressing but are not yet aware of, or concerned enough about.

      ● Eighth, read accounts of group decision-making, particularly in crisis (but not necessarily in financial) situations; and, familiarize yourself with the seemingly standard (even if, for the boardroom, somewhat limited) guide to this process.

     ● Ninth, review discussions, in caselaw, commentary or otherwise, of boards’ responses to (and possible partial responsibility for) corporate crises. 

     As I have noted, easily available online are a number of revealing internal investigation reports prepared by or for boards themselves, including: Independent Directors of the Board of Wells Fargo & Company, Sales Practices Investigations Report (2017); and Report to the Board of Directors of General Motors Company Regarding Ignition Switch Recalls (2014) (also known as “the Valukas Report”). 

     Also of interest might be Covington Recommendations for Uber (2017) (also known as “the Holder Report”).

      ● Tenth, despite continuing questions about the formality and extent of a requirement in this regard, acquaint yourself (through taking a Law and Accounting course or through independent reading) with at least the basics of how to interpret balance sheets, income statements, and cash-flow statements.

     You might even review some of the quarterly (10-Q) and annual (10-K) reports posted on the websites of major corporations.

      ● Eleventh, several of these authors recommend that aspiring directors serve on a company’s advisory board; in a more informal advisory capacity; on nonprofit boards; and/or in community organizations. 

     (For a fascinating account of a shadowy but extremely high-powered and influential advisory group, see Ann Finkbeiner’s The Jasons: The Secret History of Science’s Postwar Elite (2006).)

     According to Betsy Berkhemer-Credaire’s The Board Game: How Smart Women Become Corporate Directors (2013), which includes profiles of the paths of more than fifty women to the boardroom, “Most women directors were recommended for their first corporate boards by directors who saw them in action on nonprofit boards.”

     ● Twelfth, as I have proposed, you might form an official student group—or even a more informal “reading group”—to discuss these issues, perhaps over Zoom and/or with the aid of guest speakers (such as, alumni who are and/or who counsel directors and boards; and, representatives of organizations dedicated to helping candidates increase diversity on boards).

     That exercise itself would fulfill two of the universal pieces of advice for potential board candidates: Gain Leadership Experience, and, Network.

PRECEDENTIAL SUCCESS(ions): EIGHT VIRTUES OF THE VIRTUAL SHEPARD(‘s)

     Reviewing, in his 2023 Year-End Report on the Federal Judiciary, the progress of lawyers and courts in adopting digital technology, Chief Justice John Roberts (twice omitting the apostrophe in a trademarked term) recalled that, as recently as three decades ago, “Legal writing instructors taught their students to check the continuing validity of precedents by sifting through bound volumes of a publication called Shepards.  (Lawyers facing a deadline might skip this stage, proclaiming that ‘the Lord is my Shepards.’)”*

     Today’s law students and lawyers can easily consult the Shepard’s Citations Service through the Lexis database—or use a counterpart offered by Westlaw—to prevent the nightmare of discovering that crucial caselaw has been overruled or superseded (or, even worse, that it had been “hallucinated” by an artificial intelligence application).

     Although the figurative connotation of a sheep is “a timid docile person,” particularly “one easily influenced or led,” much can be learned from reviewing the decisions of courts that “declined to follow” a precedent.

     To identify such opinions in Westlaw, click on the “Negative Treatment” link near the top left of the page displaying a decision of interest.

     In Lexis, click on “Citing Decisions” near the top left of the page that displays the decision, and then click on “Warning,” “Questioned,” and “Caution,” below the resulting graph.

     (Both services provide adjacent links to the appellate “History” of a decision, which is also very helpful to check.)

     For at least eight reasons, law students might be well repaid by even a cursory pre-reading of a few decisions disagreeing with those assigned for the day’s class. 

     ● First, casebook authors don’t necessarily include only decisions that were still (or that were originally) considered “good law.”  Nor will all teachers agree with casebook authors on the merits of particular majority opinions.

     A few weeks into law school, I felt completely and virtuously attuned to the material for Torts one morning, only to hear the professor begin that session by declaring that (in his opinion, at least) the major case for our discussion had been decided completely incorrectly.

    ● Second, casebooks and the authors’ post-decision notes might not reflect the latest developments in caselaw and statutes.

    ● Third, a court’s summary of, and quotations from, precedent that it disagrees with provide a fast review of that decision’s most important facts and analysis.

    ● Fourth, the disagreement may identify (and might even focus on) an opinion’s subsidiary conclusions, which might not be fully addressed in class.  (But, as Rabelais might have said, revenons a nos moutons.)

    ● Fifth, a very rough guide to the acceptance of a decision can easily be found on Westlaw by comparing its number of “Negative Treatment” citations to its total number of caselaw citations (displayed next to “Cases,” the first item in the drop-down menu under “Citing References”).

    ● Sixth, relatively recent reactions by courts, particularly state supreme courts and federal Circuit Courts of Appeal, might well summarize, contrast, and/or quote key passages from a variety of judicial analyses of an issue, enabling you to efficiently track its general evolution.

    ● Seventh, for a geographical sense of courts’ reaction to a decision, the Lexis result for “Citing Decisions” includes a color-coded chart contrasting its treatment in different federal and state jurisdictions.

    ● Eighth, decisions “distinguishing” an assigned one might provide previews of the classroom’s Socratic discussions (and, possibly, exam questions), by identifying circumstances to which even a court persuaded by the original decision would not extend that analysis.

     So to avoid seeming muttonheaded or woolly-thinking, or sounding sheepish (more formally, ovine), ewe shearly should consider wether to run several such searches pasture eyes before class.

    *For a brief, practical, line-by-line explication of Psalm 23, which is often (but not exclusively) associated with mourners and funerals, see Harold Kushner’s The Lord is My Shepherd: Healing Wisdom of the Twenty-Third Psalm (2003). 

     Among Rabbi Kushner’s other books are a best-selling exploration of theodicy, When Bad Things Happen to Good People (1989); and, When All You’ve Ever Wanted Isn’t Enough: The Search for a Life That Matters (1986), which bears similarities to Viktor Frankl’s masterwork, Man’s Search for Meaning (1946; English translation, 1959) (previously discussed here).

THREE (WATCH)WORDS FOR THE NEW YEAR (AND SEMESTER)

     In the most famous scene of 1967’s The Graduate (whose trailer encapsulates virtually the entire plot), Dustin Hoffman’s promising but drifting Benjamin Braddock, newly graduated from a prestigious but never named East Coast university, is steered aside at his California homecoming party for a private poolside conversation by Mr. McGuire, a self-assured, fiftyish, family friend.

     McGuire portentously imparts to him “Just one word: . . . Plastics. . . . There’s a great future in plastics.”

     As symbolic of a synthetic, soulless, and sterile society (and suburbia) as that advice might have been, Mr. McGuire was not wrong, even from the sixties’ scientific and financial (if not necessarily environmental) perspective.  (See, for instance, the most recent volume in MIT’s Essential Knowledge series, whose selection of scores of topics is itself thought-provoking.)

    At the beginning of 2024 and of the spring semester, three words are increasingly, if unsettlingly, relevant to law and pre-law students.

     ● Evacuation.  In a book published last spring, I recommended, during a discussion of often overlooked or underemphasized elements of law school orientation, that students “check the emergency evacuation routes from your classrooms, and whether (and how) their doors can be locked from the inside.  You might also note where the fire extinguishers, AEDs (automated external defibrillators), and any emergency telephones are located, and save for quick reference the emergency and non-emergency phone numbers of the local and campus police.”

     On December 7, 2023, one day after a multiple-fatality shooting on his university’s campus, another law professor wrote, “Next semester, I will teach two classes.  We’ll start with a review for how to escape the building.  It’s how all my classes will start from now on.”

     ● Disruption.  In my list of summer reading suggestions for entering students, I advised, “check your law school’s Web site for the rules of conduct governing law students (some of which may apply to all students, and/or all members, of the university’s community).  Particularly note. . . any policies concerning or regulating speech and conduct (inside and outside the classroom, and online).”

     In light of global and local events, on December 12 the governing body of the (arguably) oldest university in the United States felt it necessary to emphasize,  “At Harvard, we champion open discourse and academic freedom, and we are united in our strong belief that calls for violence against our students and disruptions of the classroom experience will not be tolerated.” 

     Harvard is far from the only institution of higher education to issue such a recent reminder and reaffirmation.

     ● Plagiarism.  The other topic that I suggested students “[p]articularly note” in their schools’ rules is “the provisions of the honor code, especially any definitions of plagiarism (which is an academic, not necessarily an intellectual property law, offense).”

     The identification of plagiarism, another topic of current concern and controversy at Harvard, is now being revisited by schools nationwide, because of the growing use of generative artificial intelligence programs such as ChatGPT.

     In his 2023 Year-End Report on the Federal Judiciary, released on December 31, Chief Justice John Roberts observed that, “Law professors report with both awe and angst that AI apparently can earn Bs on law school assignments and even pass the bar exam,” and speculated that, “Legal research may soon be unimaginable without it.”

   ● A bonus—and a timeless—word: Kindness

     Although the statement has been attributed to various philosophers of ancient Greece, it was apparently the Rev. John E. Watson of late nineteenth-century England who authored (the original, and somewhat different, version of), “Be kind, for everyone you meet is fighting a hard battle.”

     The theologian and rabbi Abraham Joshua Heschel (1907-1972) supposedly wrote or said (in some form), “When I was young, I used to admire intelligent people; as I grow older, I admire kind people.”

     And in 1798, William Wordsworth referred to “that best portion of a good man’s life, / His little, nameless, unremembered, acts / Of kindness and of love.”

     As The Graduate’s Mr. McGuire concluded, “Think about it.  Will you think about it? . . . Enough said.  That’s a deal.”      

1,008 pages (1.5 pounds) of particulars and perspectives

     [The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]

     As old-school, unplugged, and offline as it might be, The World Almanac and Book of Facts 2024 (published in late November) offers numerous rewards to trend-spotters, statistics mavens, trivia fans, and random browsers.

     Begun in 1868, and published every year since 1886, this intellectual multitool and informational utility belt conveniently compiles practical advice, long-term and short-term perspectives, and thousands of facts and factoids, as well as a variety of lists that should be particularly pertinent to law and pre-law students, and to lawyers.

     ● First, the introductory “Top 10 News Topics of 2023” and abbreviated monthly “Chronology of Events” are good models for one type of “client alert” made available by law firms (who might well add commentary and projections).

     Similarly, law students and lawyers might, during the new year, maintain their own summaries of, and jot down their contemporaneous reflections on, notable developments in specific legal areas of interest.

     This exercise would not only enhance the focus and succinctness of one’s writing and presentations, but also aid interviewees (and interviewers) addressing, “What do you think the most important recent events have been in [particular area of law], and why?”

      Also, regularly reviewing such a list could help one distinguish the truly significant (even if generally overlooked) from the merely buzzworthy; and improve one’s capacity to identify, connect, and even predict patterns, perils, and pitfalls.

     ● Second, those seeking career contacts, and/or sources for their research projects, could consult the almanac’s rosters of: the highest revenue-generating businesses, domestic and international (from Fortune magazine); major financial institutions and defense contractors; and, a wide variety of associations and organizations (including labor unions and professional sports organizations).

     ● Third, the profiles of (and statistics for) “The 100 Most Populous U.S. Cities,” “States and Other Areas of the U.S.” and “Nations of the World” could be of use to those considering locations, or geographic regions, of potential employers and/or clients.

    ●  Fourth, the almanac contains copies of the Declaration of Independence and of the Constitution, and a list of “Selected Landmark Decisions of the U.S. Supreme Court.”

     ● Fifth, the editors provide helpful overviews of various health-related topics, including: “Screening Guidelines for Early Detection of Cancer”; depression; eating disorders; warning signs of heart attack and stroke; and, a one-page summary of “Basic First Aid.”  The almanac also lists dozens of health organizations and their contact information.

     ● Sixth, the book’s “Perpetual Calendar”—a catalog of calendars whose configurations collectively cover every possible year—supplies (and solves) an interesting example (especially for analogies) of a question (e.g., “What day of the week is March 10 of [a specific year]?”) that in general can have only a finite number of possible answers, and that in particular will have a definitive and (now) easily-determined answer.  (Before reviewing this feature, readers might consider, as a brain-teaser, how to calculate the number of different calendars necessary to constitute it.)

     ● Seventh, for those who like to nurdle out linguistically, the almanac indicates some of the words that Merriam-Webster added in 2023 to its online dictionary—including cheffy, chonky, kayfabe, and slacktivism.  It also lists various “Non-English Words and Phrases Commonly Used by English Speakers” (at least some of which should be very familiar to lawyers). 

     ● Eighth, the almanac’s mountain of material provides a vantage (if not vintage) point from which to view and review the past.

     The book contains not only chronologies of United States history (twenty-two pages) and of world history (twenty-nine pages), but also lists of political, cultural, and technological milestones of 1924, 1974, and 1999.

     In addition, for a figurative “Time Capsule,” the editors select as “representative of the year 2023” such items as a “legacy blue checkmark and abandoned bird logo from Twitter,” and “the final red Netflix DVD envelope.”

     I have suggested that law students “buy a printed newspaper on the first day of your orientation, and/or your first day of classes.  Save at least the front page.  It might not seem like a big thing at the time, but when you graduate (another good day to buy a newspaper), this low-cost time capsule will provide some historical and cultural perspective on your journey.”

     As another form of time capsule, a student might want to preserve the almanac dated the year of (or, for data from that specific year, of the year immediately following) her graduation. 

     For a reflective perspective both introspective and retrospective, one might even track down the edition corresponding to the year of one’s birth.

     Best wishes for a safe, productive, meaningful, and joyful—but certainly not a list(-)less—2024!

HOLIDAY PRESENCE: EIGHT SHORTER READINGS FOR LONGER EVENINGS

     [The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]

     In his 1921 poem, The Snow Man, Wallace Stevens reflects:

          One must have a mind of winter. . . .

          . . . not to think

          Of any misery in the sound of the wind. . . .

          For the listener, who listens in the snow,

          And, nothing himself, beholds

          Nothing that is not there and the nothing that is.

     A commentator who rated this “the best short poem in the English language” characterized it as “a recipe for seeing things as they really are. . . . [Y]ou must constantly challenge your own assumptions.”

     With wind already with us and winter well on the way, the perspectives and practices provided by the brief (except for the first) books below might be of interest to law and pre-law students, lawyers, and others.

     ● Daniel Kahneman, Thinking, Fast and Slow (2011).

     The Nobel Prize-winning economist who (with Amos Tversky) pioneered the field of “behavioral economics” creates a compelling catalog of cautions for even the most careful decisionmakers. 

     In a nutshell, “[your] intuitive [thought process] is more influential than your experience tells you, and it is the secret author of many of the choices and judgments you make.”

     Although intuitive thinking is “the origin of most of what we do right,” we may be tempted to rely on it too much.  “The way to block [intuitive] errors. . .  is simple in principle: recognize the signs that you are in a cognitive minefield, slow down, and ask for reinforcement from [your more deliberative processes of thought].”

     I am among those who have categorized dozens of the pitfalls identified by this book and by subsequent shelvesful of similar studies (including a work that notably presented and analyzed, as opposed to Stevens’s snowscape, a situation in which one might well not see something that actually is present).

     Although more recent researchers have found less experimental evidence to support some of their predecessors’ conclusions, the persistence and predictability of certain types of errors (for instance, seriously underestimating the time necessary to complete a project) should remain of concern to all counsel and clients.

     ● Dale Carnegie, How To Stop Worrying and Start Living (1948).

     This clear-eyed compendium of techniques, by the author of the much better known How to Win Friends & Influence People (1936), combines Carnegie’s historical, philosophical, and religious gleanings with numerous accounts from, about, and by celebrities and non-celebrities of his era. 

     Although its tone and references are somewhat dated, the book’s subject, and many of its common-sense strategies, are timeless.

     Carnegie stresses (so to speak) focusing on the facts of one’s situation (including assessing the probabilities of possible problems); immersing oneself in constructing and implementing plans, rather than ruminating; taking one day at a time (Chapter 1’s title: “Live in ‘Day-tight Compartments’”); and determining how much mental and emotional energy a particular issue is actually worth.

     ● Shunryu Suzuki, Zen Mind, Beginner’s Mind (1970).

     The most frequently quoted of these passages, from talks by the Japanese monk who six decades ago founded the influential San Francisco Zen Center, is the prologue’s, “In the beginner’s mind there are many possibilities; in the expert’s mind there are few.”

     Although a later best-seller would notoriously recommend that for aspiring grandmasters in chess and other fields, “Ten thousand hours [of hard practice] is the magic number of greatness,” Suzuki advises, counterintuitively, “[T]he most difficult thing is always to keep your beginner’s mind.  There is no need to have a deep understanding of Zen. . . . This is also the real secret of the arts: always be a beginner.”

     Beyond addressing such basic elements of zazen (sitting meditation) as posture and breathing, the short chapters emphasize consistency of practice, both on and off the cushion, amidst life’s changes. 

     Yet Suzuki discourages what might be called spiritual striving or ambition:

     “If enlightenment comes, it just comes.  We should not attach to the attainment.  The true quality of zazen is always there, even if you are not aware of it, so forget all about what you think you may have gained from it.  Just do it. The quality of zazen will express itself, then you will have it.”

     ● Herbert Benson, The Relaxation Response (1975). 

     A Harvard Medical School cardiologist’s best-selling guide to his simplified, secular, and stress-busting version of Transcendental Meditation, a technique then relatively new to, and increasingly popular in, the United States.

    Benson’s approach, the actual details of which occupy only a few pages, involves “a very short set of instructions which incorporate four essential elements: (1) a quiet environment; (2) a mental device such as a word or phrase which should be repeated in a specific fashion over and over again; (3) the adoption of a passive attitude, which is perhaps the most important of the elements; and (4) a comfortable position.  Your appropriate practice of these four elements for ten to twenty minutes once or twice daily should markedly enhance your well-being.”

     Benson was among the many experts interviewed by the pseudonymous “Adam Smith” (George Goodman) for the perceptive and charmingly irreverent Powers of Mind (1975), which surveyed a panoply of “New Age” practitioners and programs, in some of which Goodman participated.

     ● Jon Kabat-Zinn, Wherever You Go, There You Are (1994)

     Subtitled “Mindfulness Meditation in Everyday Life,” this book “is offered particularly for those who resist structured programs and for people who don’t like to be told what to do but are curious enough about mindfulness and its relevance to try to piece things together for themselves with a few hints and suggestions here and there.”

    Kabat-Zinn punctuates practical instructions in meditation with such refreshing advice as:

    “It helps to come to the [meditation] cushion or to the chair with a definite sense of taking your seat. . . . There is energy in the statement the sitting makes as you take your seat, both in the choice of spot, and in mindfulness filling your body. . . There is a strong sense of honoring place and placement of body and mind and moment.”

     And:

     “Every time you get a strong impulse to talk about meditation and how wonderful it is, or how hard it is, or what it’s doing for you these days, or what it’s not, or you want to convince someone else how wonderful it would be for them, just look it as more thinking and go meditate some more.  The impulse will pass and everybody will be better off—especially you.”

     ● Kerry Egan, On Living (2016). 

     Although recounting numerous conversations that she had with patients, Egan emphasizes that she and other hospice chaplains “are sort of the opposite of storytellers.  We’re story holders. 

     “We listen to the stories that people believe have shaped their lives.  We listen to the stories people choose to tell, and the meaning they make of those stories. . . .

     “We do not get to cut off someone’s suffering at the pass by telling them it has some greater purpose.  Only they get to decide if that’s true.  All we can do is sit and listen to them tell their stories, if they want to tell them.  And if they don’t, we can sit with them in silence.”

     Egan observes that, “When I first started working in hospice, someone told me this: In most of life, you can be weak inside and get through by putting on a tough outer shell.  But if you work in hospice, you have to stay soft on the outside.  So in order to stand up straight, you have to have a spine of steel.”

     In one of the book’s last chapters, Egan encourages readers, “Become who you want to be while you can enjoy it.  Don’t put off doing the work of becoming who you want to be.  Waiting will not make it easier, and time is short.”

     Or, as Mary Oliver memorably asked in The Summer Day (1990), one of the many eye-, mind-, heart-, and soul-opening poems collected in her Devotions (2017):

     “[W]hat is it you plan to do

     “with your one wild and precious life?”

     ● Heather Plett, The Art of Holding Space (2020). 

     Plett identifies and discusses more general aspects and applications of the technique employed by Egan’s “story holders.”

     “Holding space is what we do when we walk alongside a person or group on a journey through liminal space [that is, a period of personal transition].  We do this without making them feel inadequate, without trying to fix them, and without trying to impact the outcome.  We open our hearts, offer unconditional support, and let go of judgment and control. . . .

    “Holding. . . space is one of the most sacred acts we can perform for each other.  When we do it, we stand on holy ground.  And we can’t do it well unless we are well-grounded and well-supported ourselves.”

    Among the qualities that a practitioner offers: witness, containment, compassion, selective non-judgment, selective guidance, space for complexity, autonomy, flexibility, connection, and allyship.

     Among the qualities that guide her: intuition, discernment, humility, courage, and curiosity.

     ● Viktor E. Frankl, Man’s Search for Meaning (1946; English translation, 1959). 

     In the hundred pages of the book’s “Part One,” the psychiatrist concludes from his harrowing experiences in concentration camps including Auschwitz that, “Man can preserve a vestige of spiritual freedom, of independence of mind, even in such terrible conditions of psychic and physical stress. . . .  Fundamentally, any man can, even under such circumstances, decide what shall become of him, mentally and spiritually.  He may retain his human dignity even in a concentration camp.”

     Frankl notes, of himself and his fellow prisoners, that “it did not really matter what we expected from life, but rather what life expected from us. We needed to stop asking about the meaning of life, and instead to think of ourselves as those who were being questioned by life—daily and hourly.   Our answer must consist, not in talk and meditation, but in right action and in right conduct.  Life ultimately means taking the responsibility to find the right answers to its problems and to fulfill the [unique] tasks which it constantly sets for each individual.”

     In an introduction written in 1983, Frankl advises, “Don’t aim at success—the more you aim at it and make it a target, the more you are going to miss it.  For success, like happiness, cannot be pursued; it must ensue, and it only does so as the unintended side-effect of one’s personal dedication to a cause greater than oneself or as the by-product of one’s surrender to a person other than oneself.  Happiness must happen, and the same holds for success: you have to let it happen by not caring about it.”

     According to his autobiography, Recollections (2000), while still a medical student in Vienna in 1929, “I had developed the concept of three groups of values, or three possible ways to find meaning in life—even up to the last moment, the last breath.  The three possibilities are: 1) a deed we do, a work we create; 2) an experience, a human encounter, a love; and 3) when confronted with an unchangeable fate (such as an incurable disease), a change of attitude toward that fate.  In such cases we can still wrest meaning from life by giving testimony to the most human of all human capacities: the ability to turn suffering into a human triumph.”

     Frankl’s original manuscript on “the essentials of [his meaning-centered psychology of] logotherapy,” hidden in the lining of his overcoat, was abandoned “when I had to throw everything on the ground” on arrival at Auschwitz.  Years later, he would write, “I am convinced that I owe my survival, among other things, to my resolve to reconstruct that lost manuscript.”

     His tools: “For my 40th birthday an[other] inmate had given me a pencil stub, and almost miraculously he had pilfered a few small SS forms.  On the backs of these forms I scribbled notes. .  . .”

     Near the end of Recollections, Frankl reports that during his post-publication practice:

     “I received [a phone call] around three o’clock in the morning.  This woman had decided to end her life, and she was curious about what I had to say.  I offered all the arguments against such a step and we discussed the pros and cons.  We finally reached the point where she promised to postpone her plans and to come see me at nine that same morning.

     “She appeared on time and began: ‘You would be mistaken, doctor, if you thought that any of your arguments last night had the least impact on me.  If anything helped me, it was this.  Here I disturb a man’s sleep in the middle of the night, and instead of getting angry, he listens patiently to me for half an hour and encourages me.  I thought to myself: If this can happen, then it may be worthwhile to give my life another chance.’” 

     He notes, “In this case it was more the human response that helped, not any technique as such.”

     Finally, from a solstice sunnier than that of Stevens’s century-old Snow Man:

     ● Ray Bradbury, Dandelion Wine (1957).    

     A warm and wonderful wealth of wisdom, about the rituals, reversals, and revelations of a twelve-year-old boy and his family, friends, and neighbors in the quietude of Green Town, Illinois (a fictional version of Bradbury’s hometown, Waukegan) during the summer of 1928.

     Memory, maturity, mortality, and multiple metaphors (such as the title liquid itself: “Every time you bottle it, you got a whole chunk of 1928 put away, safe.”)

     Magically evocative prose that often reads like poetry.

     A celebration and a savoring of simple, seasonal, and sometimes-spontaneous satisfactions.

     Life-affirming lessons for the town’s jeweler and tinkerer, after he

 takes far too seriously the boy’s suggestion to “Invent us a happiness machine!”  

     And, at a crucial moment, just a breath of winter.

     But there snow spoilers here.    

TIMELY (AND TIMELESS) COUNSEL, FOR COUNSELORS AND FOR CLIENTS

     [The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]

     At the beginning of the Tom Cruise movie, Jerry Maguire (1996), late-night inspiration strikes an up-and-coming sports agent, who feverishly composes “a mission statement, not a memo. . . a suggestion for the future of our [sports management] company.”

     Maguire refers to “how I ended up here after law school,” and recalls the words of his mentor: “The key to this business is personal relationships.” (The leader of Mad Men’s advertising agency of the 1960s similarly insisted that, “Half the time, this business comes down to, ‘I don’t like that guy!’”)

     Maguire’s supercharged statement soon scuttled his prospects at Sports Management International (SMI).

     But he might have been in better company, so to speak, with Mark H. McCormack (1930-2003), the real-life founder and chairman of sports talent agency International Management Group (now IMG, with a wider range of representations).

     McCormack, who had a Yale Law School degree but who did not attend business school, wrote more than a dozen books, the best-known and best-selling of which is What They Don’t Teach You at Harvard Business School: Notes from a Street-Smart Executive (1984).

     He addresses that work to “’street smarts’: the ability to make active positive use of your instincts, insights, and perceptions”—and in particular, “how to read people, how to influence their reading of you, and how to apply or customize both to any likely business situation.”

     To illustrate his principle of “making it easy on yourself by making it easy on others,” McCormack recounts how “the head of our legal department” resolved an IMG executive’s frustrations about the department’s turnaround time for reviewing contracts. 

     The lawyer advised the executive, “The next time a contract comes in, review it yourself, and then, before sending it off [to us], attach a covering memo that lists any problems you see and how you might recommend fixing them.”

     However, in his The Terrible Truth About Lawyers (1987- subsequently published in paperback as What They Didn’t Teach Me at Yale Law School), McCormack warns potential clients that business lawyers can be–and cautions counsel not to be–interfering, overbilling, underinformed, litigation-inclined, and deal-delaying contract-killers. 

     Like its more successful sibling, this book “is essentially devoted to. . . the intuitive skills of reading people and devising solutions in order to enhance business and personal opportunities.”

     McCormack recommends that attorneys be consulted judiciously, and not necessarily deployed judicially: “If it takes considerable restraint not to call in the lawyers immediately when you are attacked legally, it sometimes takes even greater forbearance not to sue when you know you have been abused.” 

     Despite his statement that “probably the best way to deal with lawyers is not to deal with them,” and fond recollection of deals “made. . . with no contract or written agreement attached to them—no legalese, no what-ifs, no fine print” (including a career-making “handshake deal that I made with [legendary golfer] Arnold Palmer back in early 1960”), McCormack acknowledges that even informal agreements “eventually take on the baggage of signed documents and memos back and forth.” 

     That is, “A deal is a living thing, a contract is static.  And the purpose of a contract is to support the living, evolving deal, not supplant it.”

     His “Axiom of Good Contracts” thus holds that “If a lawyer is serving his client faithfully and well, and if a client is using his lawyer effectively and appropriately, then a legal cont[r]act should allow for the same flexibility and ongoing goodwill as a handshake deal.”

     (His fictional counterpart painfully discovered the perils of relying entirely on an unwritten agreement, even—or perhaps especially—with someone who had asserted that, “You know I don’t do contracts, but what you do have is my word, and it’s stronger than oak.”)

     Many of McCormack’s reflections, observations, and examples, though now almost four decades old, remain relevant to pre-law and law students, practitioners, and potential or current clients, especially those who seek enduring professional relationships rather than one-shot representations.

     Among them:

     ● On essentials: “[I]t’s not the technical details that are most germane to the practice of law; it’s the human side—the shrewd yet sympathetic understanding of human conflicts and human motivations, the honing of the powers of persuasion, the mastery of the nuances of logic and argument—that is the meat of what a lawyer needs to know. . . . It is the human skills that get practical results.”

     ● On settling, even when a client is in the right: “[O]ften the choice comes down to paying the plaintiff or paying [your] lawyers. . . .  By settling, [his firm] put a cap on our losses.  By not settling, we would have remained vulnerable both to the running up of huge legal fees and to the possibility of an off-the-wall judgment.”

     ● On the Socratic method: “Law school has taught [lawyers] to hide uncertainty at any cost.”

     ● On delays attributed to “scheduling conflicts”: “[A] client should always insist on knowing the reasons. . . [D]emand to know what those conflicts are.” 

     In particular, McCormack suggests that the “professional courtesies” that lawyers extend to each other (or alternatively, the personal grudges that they hold against each other) can undermine their professional obligations to effectively represent clients.

     (A case could be made that a lawyer who consistently refuses to accommodate requests from any opposing counsel might thereby alienate her entire legal (sub)community, and thus undermine her future ability to represent any client).

    ● On furnishings: “No client should overlook the role played by [a law firm’s] operating expenses in determining what his legal costs will be.  No client should kid himself about who pays for the signed prints on the wall, the teak desks, the creamy stationery,” or consider those accoutrements necessary indicators of a firm’s legal expertise.

    ● On billing: “A client should always demand a complete and detailed bill from his attorney, and should review the document carefully.”

    ● On choosing individual lawyers: The right attorney might not be someone “you want to be best friends with”; but she should be someone whom you wouldn’t be embarrassed to have others believe is your friend.

     ● On staffing: “Clients should not feel shy about asking to meet and interview [all personnel] who will play a part in their case,” and in requesting, and expecting, to be informed if the original staffing arrangements change.

    ● On flexibility: “[I]n many if not most contracts, there are certain things which, by their very nature, have to be left and should be left to trust, goodwill and common sense.”

    Especially in the second half of the book, McCormack’s attacks on law schools, the legal profession, and the legal system can seem excessive, although presented as the brutal truth.

   Yet the author’s numerous examples involving International Management Group as a client, and his stories about his own days of legal practice (at Cleveland’s oldest (but now-defunct) law firm, Arter & Hadden), immunize him from lawyers’ potential arguments that—as Jerry Maguire declared to his sole client (emphasizing every single word)—“I am out here for you.  You don’t know what it’s like to be me, out here for you.  It is an up-at-dawn, pride-swallowing siege that I will never fully tell you about, ok?”

    The concluding chapter’s practical pointers on “interviewing” (clients and adversaries), counseling, negotiating, and drafting could by themselves well be worth the cost of the book.

     Its final words resonate even more strongly today than in 1987:  

     “[W]hat allows skilled lawyers—and can allow all of us—to function well under great duress is the ability to strike a balance between commitment and detachment.

     “The effective professional—lawyer, executive, salesman—should be wholly concentrated on and committed to the fulfilment of his professional role.

     “All the while, however, he should be aware that he has a self beyond that role. . . .

     “The balance between commitment and detachment is what allows for the quality we call poise. . . .

     “A lawyer who has achieved true poise will never want for clients.

     “And business people who attain true poise will deal effectively with lawyers when they need to; better still, they will be able to minimize those occasions when they have to. . . .

     “Dignity is what poise grows into when it becomes second nature.  And dignity—an effective dignity that lets us get things done not just with flair but with peace of mind—is really the ultimate object of the exercise.”

NO ACCOUNTING (BACKGROUND) FOR LAWYERS?

     [The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]

     It’s not just “business lawyers”—or business-oriented law students—who should be familiar with the construction and interpretation of a company’s basic financial documents: balance sheets, income statements, cash-flow statements, and (for publicly-traded companies) its annual (Form 10-K) and quarterly (Form 10-Q) reports.

     For instance, family lawyers might well have clients who are starting, selling, investing in, or sharing ownership of an enterprise. 

     Health care attorneys could need to assess the financial stability and prospects of a health care provider, or of a manufacturer or distributor of pharmaceuticals. 

     Any counselor active in ESG (Environmental, Social, and Governance) issues, whether on behalf of management, of shareholders, or of non-shareholder “stakeholders” (such as employees, customers, and residents of areas near a company’s facilities), should be able to evaluate, and possibly challenge, a company’s portrait of its financial status.

     These skills would also help lawyers and law students to position themselves to join the boards of for-profit and/or non-profit organizations (although caselaw, regulations, and corporate policies remain surprisingly murky on the “financial literacy” expected of corporate directors).

     The first of the ABA’s Model Rules of Professional Conduct, MRPC 1.1, requires lawyers to provide their clients with “competent representation,” which demands “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

     One might argue that, in this formulation, “legal” modifies not just “knowledge” but also “skill, thoroughness and preparation,” and thus does not include a lawyer’s ability to evaluate financial documents.

     In fact, Comment 4 to MRPC 2.1, which concerns the lawyer’s role as “advisor,” clarifies that “Matters that go beyond strictly legal questions may. . . be in the domain of another profession. . . . [B]usiness matters can involve problems within the competence of the accounting profession or of financial specalists.”

     Yet the explicit acknowledgment of those situations, and the use of the word, “may,” suggest that less specialized skills, such as the ability to analyze a generic company’s financial statements, can be critical components of a counselor’s competence. 

     Comment 5 to Rule 1.1 supports this interpretation by adding that, “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of [appropriate] methods and procedures. . . .” (emphasis added).

     To prepare for, accompany, review, or possibly substitute for, a formal course in Accounting and the Law, interested law students and lawyers might find one or more of the following books particularly rewarding:

     The Gentlest Introduction

     ● Karen Berman and Joe Knight’s Financial Intelligence: A Manager’s Guide to Knowing What the Numbers Really Mean (revised edition 2013; 260 pages, plus appendix) is written “not for would-be accountants but for people in organizations—leaders, managers, employees—who need to understand what is happening in their company from a financial perspective and who can use that information to work and manage more effectively. . . . The numbers will no longer scare you.  It won’t take long, it’s relatively painless, and it will mean a lot to your career.”

     The Most Comprehensive

     ● Stacey L. Bowers’s Accounting and Corporate Finance for Lawyers (2018; 318 pages, plus appendices) aims to make law students “conversant and able to hold a well-informed conversation with their clients, other lawyers, or accountants regarding the concepts covered.” 

     Those concepts include: financial statements; the auditing process; issues in accounting; financial terms and covenants in contracts; business valuation; and methods of corporate finance.

     The Best Balance of Detail and Accessibility

     ● Lita Epstein’s Reading Financial Reports for Dummies (4th ed. 2022; 332 pages) addresses the same topics, in a somewhat less formal manner, that Bowers does, and particularly from the perspective of potential investors.  Epstein includes helpful chapters on “Recognizing Business Types and Their Tax Rules,” “Scouring the Notes to the Financial Statements,” “Keeping Score When Companies Play Games with Numbers,” and “Ten Signs That a Company’s in Trouble.”

     (For a much more extensive discussion, aimed at business-owners, of accounting issues, see Michael Taillard’s 706-page Accounting All-in-One for Dummies (3rd ed. 2022).)

     (A valuable guide to identifying and evaluating red flags in 10-K and 10-Q reports is Michelle Leder’s Financial Fine Print: Uncovering a Company’s True Value (2003; 164 pages, plus appendices, one of which provides the summary, “A Cheat Sheet for Reading Key SEC Filings”).)

     The Shortest

     ● John A. Tracy & Tage C. Tracy’s How to Read a Financial Report (9th ed. 2020; 178 pages) emphasizes “the connectivity of the different pieces of information reported in financial statements.”

     ● W.R. Purcell. Jr.’s Understanding a Company’s Finances: A Graphic Approach (1981; 143 pages, plus appendices [now out of print, but used copies are still available]) illustrates (literally) the author’s opening promise that “All the parts of a company’s financial reports fit together like the parts of a map.  Once you see how they fit together, you can turn the reports into a map of the company’s finances.”  The book covers balance sheets, income statements, and financial ratios (such as “return on equity”).

     The Most Colorful

     ● More advanced and finance-focused than the previously-mentioned works, Mihir A. Desai’s How Finance Works (2019; 258 pages) provides a wide variety of graphics, and of examples from major domestic and foreign companies, to enhance its discussions of financial statements and ratios. 

     Chapter 2 (of six) concludes: “All value comes from future cash flows, and making positive net present value decisions is the hallmark of a good steward of capital and manager.  Everything else in the remainder of this book will build on those core ideas.”