Keeping Your Own Counsel

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

Archives (page 2 of 6)

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!


     [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.”


     “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.    


     [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.”


     [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.”


     During a twenty-four hour period that began on the evening of November 9, 1938, Nazi storm troopers and German townspeople burned down “more than a thousand synagogues,” and looted and desecrated many others; vandalized and pillaged “[t]ens of thousands of Jewish shops and homes”; murdered an estimated ninety-one Jewish people; and arrested and sent to concentration camps “more than 30,000 Jewish men between the ages of sixteen and sixty.”

     In his account of this infamous “Night of Broken Glass,” Kristallnacht: Prelude to Destruction (2006), Martin Gilbert observes that its eruption of anti-Semitism, instigated by the highest levels of the Nazi command and encouraged by the deliberate passivity of the police, followed almost “[s]ix years of legalised anti-Jewish discrimination, isolating the Jews from their fellow Germans and depriving them of the rights of full citizenship.” 

     For instance, “During 1933 the German government [had] enacted forty-two laws restricting the right of German Jews to earn a living, to enjoy full citizenship, and to educate themselves,” and barred them from working in the civil service, which “included schools and universities.”

     Alan E. Steinweis’s Kristallnacht 1938 (2009) finds that during these years anti-Semitic violence was “in fact fairly common in Germany,” and characterizes Kristallnacht “more as a culmination of a brutal trajectory [of legislative discrimination] and less as the dramatic rupture it is usually represented as having been. . . . The events of November 1938 marked a crescendo in the violence that had accompanied legal and bureaucratic marginalization of [German] Jews from the very beginning.”

     One aspect of that marginalization is chronicled in Simone Ladwig-Winters’ Lawyers Without Rights: The Fate of Jewish Lawyers in Berlin After 1933 (2018): the September 1938 law, to which the German bar did not raise notable or organized opposition, that prohibited Jewish lawyers (including at least 674 in Berlin) from practicing in Germany.

     “The [book’s] biographical directory. . . extends, to the extent information could be ascertained, beyond information over a person’s legal activities and professional career.  The short and sometimes longer information concerning individuals should give the reader a personal feel for the exclusion and persecution.  In addition to this, the overall statistical analysis should provide an insight into the quantitative dimensions of exclusion.” 

     Ladwig-Winters notes, “In April 1933 and in the following years the most absurd and uncivilized measures were given statutory form.  Non-Jewish colleagues hardly had any doubts about such measures, based on the motto: ‘Law is law.’  It seems like no one took steps to prevent this development. . . . Legal colleagues remained reserved. . . .”

     In fact, “In that they let themselves be used, [lawyers] worked together with this system as it was built.  They were not just assistants, but rather made an active contribution to a legal system based on injustice that led to the exclusion of entire population groups. . . . Human or legal concerns regarding segregation were not made vocal.”

    Lawyers Without Rights discusses Germany’s 1933 statute defining the status of “non-Aryan,” which “included all people who were adherents of the Jewish religion or, regardless of their religious beliefs, had parents or grandparents who at some time had been the member of a Jewish congregation.”

    Richard Weisberg’s Vichy Law and the Holocaust in France (1996) depicts in damning detail the coldly technical and detached approach of French lawyers to that regime’s 1941 statute defining “Jew.” 

     He reflects, “The written laws against Jews. . . were the medium always available to clever Vichy lawyers to negate or at least to minimize Jewish suffering.  Instead, lawyers, judges, government officials and academicians argued for the protection of only small sub-groupings.”  Weisberg emphasizes “the immense suffering caused by the legal community’s very willingness to nitpick, hence indicating their basic acceptance of the new laws.”

    In Poethics and Other Strategies of Law and Literature (1992), Weisberg examines a French appellate lawyer’s 1943 publication, “What Means of Proof Can the Jew of Mixed Blood Offer to Establish His Nonaffiliation with the Jewish Race?”, as an example of the “ingrained proclivity [of such a “professional”] to throw himself into whatever framework outsiders had built around him, without thought to the rotten nature of the structure itself.” 

     In her own book, Simone Ladwig-Winters invokes “a central point of Jewish tradition: ‘Zachor!—Remember!’”

     As it is written in the Haggadah, and as the warning is repeated aloud each Passover around the seder table, “[N]ot only one has risen up against us, but in every generation some have arisen against us to annihilate us. . . .”


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

     The first Monday in October has marked, since 1916, the beginning of the United States Supreme Court’s annual term, and, since 1975, the first oral arguments before the nine Justices.

     Though it became a bestseller forty-four years ago, Bob Woodward’s and Scott Armstrong’s The Brethren: Inside the Supreme Court (1979) reflects critical concerns still current, including: the confidentiality of the Justices’ deliberations; the polarization (and, to some commentators, politicization) of their written opinions; their professional collegiality; and their failure to adopt a code of ethics for the Court. 

     It also explains the evolution of a wide variety of the Court’s opinions, including some concerning school desegregation, the death penalty, pornography and obscenity, legislative reapportionment, presidential “executive privilege,” freedom of the press, sex discrimination, the “right to treatment” of civilly committed mental patients, and abortion rights.

     The last of these, according to the book, was originally framed in a Justice’s draft opinion as a matter of “the rights of the doctor and the rights of the state.  The most important party, the woman, had been largely neglected.”

     Woodward, who with colleague Carl Bernstein had led the The Washington Post’s prizewinning coverage of the Watergate scandal (1972-1974), and Armstrong, who had also reported for the paper, chronicle in unprecedented and eye-opening detail the Court’s operations during the early terms (from 1969 through 1975) of Chief Justice Warren E. Burger’s (1969-1986) tenure, which succeeded that of the progressive Earl Warren (1953-1969),

     The Associate Justices in 1969 were, in decreasing order of seniority: Hugo Black (succeeded in 1971 by Lewis F. Powell Jr.), William O. Douglas (succeeded in 1975 by John Paul Stevens), John Marshall Harlan II (succeeded in 1972 by William Rehnquist), William Brennan, Potter Stewart, Byron White, and Thurgood Marshall.

      The authors cite and quote from internal memoranda, opinion drafts (including, “in several instances, drafts that were never circulated even to the other Justices”), and other communications among the Justices’ chambers.  (They report that shortly before his death, Black arranged for “his most private papers, memos and conference notes [to be] burned.  Publication would inhibit the free exchange of ideas in the future.”)

     The book’s accounts of many private conversations could only have come from the Justices’ clerks and/or from Justices themselves.  As the Introduction indicates, “For each of the seven terms we describe, we had at least one, usually two, and often three or four reliable sources in each Justice’s chamber, in no case fewer than 20 sources per term.  Where documents are quoted, we have had direct access to the originals or to copies.”

    According to the biography, Justice Brennan: Liberal Champion (2010), by Seth Stern and my faculty colleague Stephen Wermiel, Brennan became “furious” at suggestions that he had spoken to The Brethren’s authors; and, in fact, “Woodward later revealed that his key source on the Court had actually been Potter Stewart, but not until after the justice had retired and died.”

     Among the book’s most notable elements:

     ● Beyond an introductory recitation of the Court’s “seven decision-making steps”—from deciding to hear a case to announcing its opinion(s)—Woodward and Armstrong address the interpretation, adaptation, and application of its unwritten traditions. 

     For example, “a single Justice, even a dissenter, could insist that an opinion not come down until he had finished his own opinion.  This was the conference’s equivalent of senatorial courtesy.”

     Also by tradition, when discussing cases “at conference,” the Justices would proceed in decreasing order of their seniority (starting with the Chief Justice), and then cast preliminary votes by increasing order of seniority (starting with the most junior Justice).  “But over a period of time, the formal vote had been dispensed with, since, in expressing his views, each Justice let it be known where he stood.  If his position was firm, it amounted to a vote.”

     Another procedural question involved the ability of newly-appointed Justices (Powell and Rehnquist) to vote on whether cases heard before they joined the Court, but on which opinions had not yet been issued, should be reargued (a proposal that Burger advanced, but ultimately abandoned).

      The Justices also considered whether a disabled colleague (Douglas, towards the end of the book) could be involved in deliberations, and how his absence would affect the voting on current cases. 

      They ultimately adopted a “strategy [that] had the practical effect of nullifying Douglas’s vote.  It would be counted only when it did not matter.  Douglas would not be allowed to affect the outcome of a single case.  But uneasy as they were over taking this step, the Justices felt that it was necssary to protect the long-range interests of the Court.”

     (The book’s detailed account of Douglas’s physical decline, and of his increasingly unrealistic and unavailing attempts to remain involved with the Court’s work, can be moving, despite some of his previous and problematic (his “abuses of his clerks were legend”) personal conduct.)

     ● Although none of the book’s photo illustrations is particularly kind to its subject(s), the text presents a deeply unflattering portrayal of Chief Justice Burger (who had been appointed by President Nixon and confirmed by the Senate in eighteen days, by a 74-3 vote).

     A recurring element is Burger’s apparent practice of strategically withholding his vote during (or even changing it after) the Justices’ case conferences, so that he could be the senior Justice in the majority, and thus, under the Court’s tradition, assign the majority opinion to himself or to one of the other Justices in the majority. 

     In fact, the book reports that in several particularly groundbreaking cases, Burger “was a member of the minority, [but] had not only assigned the [majority opinion], but assigned it to another member of the minority.”

     Burger is depicted as constantly concerned not just with the public image of the Court but with his own legacy.  Early on, he persuaded Justice Harlan to reverse Harlan’s vote for the Court to hear a case: “[I]n his first year as Chief, Burger said, a decision that would be viewed as another Court effort to tie the hands of the police would look awful.  The press could make such a decision embarrassing both to him as Chief and to the Nixon administration.” 

     Burger would subsequently breach Court protocol by himself publicly announcing the (6-3) decision to allow newspapers to publish material from the Pentagon Papers, even though he had been one of the dissenters to the majority’s opinion.

     Burger also appared overly devoted to the ceremonial duties of the Chief Justice, at the expense of “the monastic, scholarly side of the Court’s life.”  The authors report that he was “often unprepared” for oral arguments or case conferences; and that, in criminal law cases, he “would go out of his way—bend the law, overlook earlier Court decisions—to hold a majority to keep someone in jail.”

     According to the book, Powell concluded that Burger “provided no intellectual leadership.  In fact, when it came to legal analysis, he was grossly inadequate.”  After reading Burger’s draft opinion in a school desegregation case, he told a clerk that, “If an associate in my law firm had done this, . . . I’d fire him.”

     Burger’s work came under suspicion in other chambers as well.  “At the beginning of the [1975] term, Brennan told his clerks to scrutinize, word by word, all drafts circulated by either Rehnquist or Burger.  Anything from Burger had to be gone over carefully both because there was no telling what to expect and because the quality of the work was usually substandard.”

     ● Stewart supposedly told his clerks, “On ocean liners, . . . they used to have two captains.  One for show, to take the women to dinner.  The other to pilot the ship safely.  The Chief is the show captain.  All we need now is a real captain.”

     To Woodward and Armstrong, the Burger Court’s “real captain” was the “center coalition.” That is, “The leadership belonged to the Justices in the center, the swing votes, those who were neither doctrinaire liberals not conservatives.  It belonged to Stewart and White and Lewis Powell if he chose.”

    During the 1972 term, according to the book, Brennan realized that “Stewart and White had taken over the direction of the Court along with the Nixon appointees [Burger, Blackmun, Powell, and Rehnquist]. . . . Brennan was the outsider, and he was pained at the direction the Court was taking.”

     The Brethren ends by concluding that the five decisions issued on the last day of the 1975 term illustrated that the Burger Court’s “turning away from the Warren Court was orchestrated and controlled not by Warren Burger, but by Stewart and White, who had served on the Warren Court, Powell, the most moderate of the four Nixon appointees, and by Stevens, the new moderate.  The center was in control.”

     ● Half a century before Justice Samuel Alito’s draft majority opinion in the abortion rights case, Dobbs v. Jackson Women’s Health Association was leaked in May 2022, Burger attempted, not always successfully, to maintain the confidentiality of the court’s deliberations.  In especially sensitive cases, such as on school desegregation and on the death penalty, he asked his colleagues not to share details of the Justices’ conferences and tentative decisions with their clerks, or to circulate draft opinions to clerks.

     Soon after joining the Court in 1969, Burger restricted his own clerks from sharing his, or their own, “views on a case. . . outside his Chambers [including with other Justices’ clerks] until his final position is reached.” 

     In the spring of 1971, as the court was considering the Pentagon Papers case, Burger “expressed his fear that some antiwar clerk might gain access and leak the papers.” Not all of the Justices found it necessary to observe “the Chief’s restrictions that all th[is] material be kept in the conference room, protected by armed Pentagon security guards stationed outside”; at least two removed some of the documents and shared them with their clerks.

     Shortly after the Court’s decision in that case, after being informed by Solicitor General Erwin Griswold about leaks received by his own staff about votes in and impending release dates of the Court’s decisions, Rehnquist recommended to the other Justices that each clerk should be interviewed by F.B.I,, and possibly subjected to a lie-detector test. “When the other Justices objected to the lie-detector tests, the Chief backed down and appointed a committee on security. . . to consider the matter further.”

     After Time magazine reported in January 1973 that the Court was preparing “to strike down nearly every anti-abortion law in the land,”  Burger sent an “Eyes Only” memo to the other Justices, requesting (largely in vain) that they ask their clerks about the leak.  “Burger intended to call in the F.B.I. to administer lie-detector tests if necessary.”

     In May 1973, his colleagues agreed, in deciding to hear United States v. Nixon on an expedited basis, that “[t]hey would not tell their clerks about the discussion and to prevent leaks they would announce their decision immediately.”

    At the beginning of the 1974 term, all new clerks were told that “they were absolutely forbidden to speak with reporters.  If a clerk was ever seen in the presence of a reporter, he would be fired.  There would be no questions asked, nor any explanations accepted.”

     Not all of the readers troubled by interviews of former clerks might find their concerns assuaged by Armstrong’s article, Supreme Court Clerks as Judicial Actors and as Sources, 98 Marquette L. Rev. 387, 408 (2014), which argues that, “No employment agreements or other written [confidentiality] restrictions were imposed on the clerks. . . .”

     ● The book includes discussions of some of the oral arguments, and of their reception by the Justices. The authors note that, “The rule of thumb at the Court was that oral arguments rarely win a case, but occasionally lose one”; and they define “the first rule of oral advocacy” as, “[G]et a sense of the Court and go where it wants to go.  Be helpful, don’t argue.”

     ● Woodward and Armstrong detail the often-delicate, and sometimes deceptively-described, process by which Justices suggested revisions to each other’s draft opinions.

     In response to Burger’s draft of an opinion in a school desegregation case, Harlan circulated “his clerk’s massive research memorandum” with his own “cover memo, restrained in tone, [that] said the Chief’s draft would be acceptable, provided that Burger made a few changes. The changes, however, amounted to deleting almost all of the Chief’s draft and substituting the far longer Harlan memorandum.”

    In another case, after Blackmun circulated an opinion on abortion rights, Brennan “took his clerks’ memo and recast it as a series of casual thoughts and suggestions.  It was important that it not appear to be an alternative draft.  Brennan addressed a cover memo to Blackmun saying he fully agreed with his draft, but wanted to pass along some ideas. Brennan’s thoughts ran forty-eight pages.  Copies were sent to all the Justices.”

    At the extreme, several Justices could coordinate their comments in an attempt to effectively gut a circulating opinion. In Nixon, at Brennan’s suggestion, “Each of the [Associate] Justices would systematically propose alternative drafts to various of the. . . sections [written and circulated by Burger].  They all could then express their preference for the substitute sections.  Seeing that he was outnumbered, the Chief would be forced to capitulate.”

     ● Burger, and other Justices, reached for unanimity in particularly momentous decisions, such as in ordering the desegregation of school systems.

     As the Court prepared its opinion in United States v. Nixon, “Brennan made an impassioned plea for unanimity.  Everyone had problems with the opinion, he said.  He too had problems.  But it was a compromise document and it was essential both to the Court and to the nation. . . . He turned to Powell and Douglas.  The opinion is fine, he pleaded.  Please let it go, he beseeched them.”

     Both agreed, Powell because of his “nearly inflexible rule: If at all possible, never let a separate opinion or concurrence jeopardize personal relations” with the other Justices.

     ● The book examines closely the ways in which various Justices sought to collegially cajole, convince, and convert others to certain conclusions and coalitions, in ways both strategic and sensitive.  (In some situations, individual Justices simply announced positions that they would not be swayed from.)

    Even disagreement could be carefully masked.  “Powell misread Stewart and White’s polite encouragement as enthusiasm.  Unfamiliar with Court protocol, he did not understand the tradition of complimenting the ‘learned Judge’ before ripping him to shreds.  The tradition helped keep disputes on an impersonal plane, or at least maintained the façade that battles were legal and not to be taken personally.”

     ● Not surprisingly, given their apparent role as sources for The Brethren, the book emphasizes the active, and sometimes-influential, role of the Court’s judicial clerks, almost none of whom is identified by name.  The group was largely left-leaning: during the 1970 term, “In a vote on whom to invite to a question-and-answer lunch, one of their top choices had been the outspoken antiwar activist and actress Jane Fonda.”

     On their own initiatives, clerks attempted to sway their own Justices’s votes, and possibly even (through their discussions with clerks in other chambers) those of other Justices. 

     They gathered information for their own Justices from other clerks. (“White mentioned Blackmun’s objections to one of his own clerks, who in turn passed them on to one of Brennan’s.  Within hours, Brennan had an account.”).

     On occasion, they might have been deployed to convey particular messages and suggestions to other chambers.  (“Marshall’s clerk began lobbying through Burger’s clerk, trying to persuade him to move a discussion of residential segregation that had been buried in Footnote II up to the main body of the next draft.  Burger at last gave in. . . )

     One of his clerks persuaded Justice Harlan to review material including The Autobiography of Malcom X, and to conclude that Muhammad Ali, whose conviction for refusing to serve in Vietnam the Court ultimately and unanimously reversed on technical grounds, qualified as a conscientious objector.

     Clerks would voice their own objections of conscience, as when one “refused to work further on [Justice Douglas’s concurring opinion in that case] after Douglas insisted on retaining an incorrect statement of the Black Muslim position on holy wars.”  When asked by Marshall to draft an opinion in a case concerning whether a federal court could enjoin the United States from bombing Cambodia, a clerk, “who was avidly opposed to the war, and impatient with Marshall’s timidity and inattention, refused.  Marshall would have to write it himself, he said.”

     In a welfare-related decision, “Rehnquist. . . insisted on publishing an opinion that twisted the facts.  His own clerk was so embarrassed. . . that he sent a personal note of apology for his role in the case to the clerks in the other chambers.”

     On a different level, Justice White’s clerks “altered a few words” in his draft opinion on the death penalty, “hoping he wouldn’t notice.”

     One of Stewart’s clerks, “given [a] memo to forward to the Chief and to the other chambers[,] thought this boss was being too conciliatory to the Chief.  Burger’s standing section [in the draft of United States v. Nixon] was not good enough. . . . Since Stewart. . . was not likely to be back that day, the clerk took matters into his own hands and slipped the original and all copies of the memo into his desk drawer.  He would raise the subject with Stewart the next day.  He hoped Stewart would be glad the memo had not been sent.”  (He did not, however, discuss this with Stewart before the Justices next conferred.)

     Brennan, resisting pressure from his clerks to circulate his “counterdraft” to a Burger opinion that had not yet been distributed to the Justices, “could not break protocol so blatantly.  ‘I have to live with him next year,’ he said.  ‘You don’t.’”

     ● Among the many other considerations to be balanced, harmonized, and aligned during the Court’s deliberations: the degree to which the Justices should address “political,” as opposed to legal, questions; respecting the relationships among the executive, legislative, and judicial branches of government; maintaining the Court’s credibility; leading, versus following, public opinion; whether to move quickly rather than slowly, and whether to reach broad rather than more restricted holdings (“Harlan and Powell had both concluded, from years of private law practice, that narrow solutions to legal problems were better than sweeping ones.”); and, the nature and variety of sources to be consulted.

     At various points, according to The Brethren, different Justices became weary and somewhat disenchanted.

     “Once, Powell invited Washington . . . football star Larry Brown to lunch at the Court.

     “Brown asked Powell if he preferred being a lawyer to being a judge.

     “’Would you rather be a player or a referee?’ Powell replied.”


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

     Among the most valuable of the “soft skills” that law schools (and other training of lawyers) might not formally address is the identification and interpretation of body language. 

      Joe Navarro’s What Every Body is Saying (2008), drawing on his 25 years of experience as an FBI special agent and supervisor in counterintelligence and counterterrorism, presents plenty of practical, plainly-illustrated principles for assessing people’s actual emotions and intentions.

     Navarro’s advice generally crosses cultures, and applies not only to professional but also to “social” and “courtship” situations, as well as to interactions arising from the happenstance of personal proximity.

     The book initially recommends that readers first (when possible) determine a person’s “baseline behavior” of postures, gestures, and facial expressions.  It concludes with a warning that “There are no nonverbal behaviors that, in and of themselves, are clearly indicative of deception.”

     In between, Navarro offers a wide variety of immediately-applicable tips, tricks, tests, and techniques, including:

     ● Watch for, and try to identify (and, perhaps, deliberately aggravate) the stress that induces someone’s “pacifying behaviors,” such as the “touching of the face, head, neck, shoulder, arm, hand, or leg. . . . These stroking behaviors don’t help us to solve problems; rather, they help us to remain calm while we do. . . . Men prefer to touch their faces.  Women prefer to touch their necks, clothing, jewelry, arms, and hair.” 

     Pacifying behaviors also include “leg cleansing” (a seated person’s “plac[ing] the hand (or hands) palm down on top of the leg (or legs), and then slid[ing] them down the thighs toward the knee”); and “a person brushing the front of his shirt or adjusting his tie.”

     ● “Having conducted thousands of interviews for the FBI, I learned to concentrate on the suspect’s feet and legs first. . . . When it comes to honesty, truthfulness decreases as we move from the feet to the [face].”

     To substantiate his contention that “the feet are the most honest part of the body,” Navarro provides an extensive catalog of foot and leg behavior, including: “happy feet,” which “wiggle and/or bounce with joy”; lifting the toes, which can signal the receipt of good news, or the heels, which suggests imminent physical action; leg splay, the territorial behavior otherwise known as manspreading; crossing one’s legs while standing, which can indicate confidence (as does, to the extreme (but with the opposite extremities), “hand steepling”); and, the direction in which legs are crossed—typically, towards “the person we favor.”’

     As one of Navarro’s numerous photos depicts, “when someone we don’t know approaches us on the street, we usually turn our attention to them from the hips up, but keep our feet pointed in the direction of travel.  The message we are sending is that socially I will be attentive briefly; personally I am prepared to continue or flee.”

     (Thus, contrary to the globally chart-topping 2005 song, hips sometimes can lie.)

     ● To appear trustworthy, “always be sure to keep your hands visible during face-to-face communications with others.” 

     In a parallel to Navarro’s caution about leaping to conclusions, Peanuts’s Charlie Brown once declaimed, after seeing Linus’s drawing of a man who had his hands behind his back, that “You did that because you yourself have feelings of insecurity.”   

     Linus’s retort: “I did that because I myself can’t draw hands!”

     (In fact, Navarro suggests that the posture signals both an attempt to communicate “higher status” and a desire “not to be [approached or] touched.”)

     ● “Feelings of low confidence can be evidenced when a person (usually a male) puts his thumbs in his pockets and lets the fingers hang out on the side. . . . Particularly in an employment setting, this signal says, ‘I am very unsure of myself.’” 

      By contrast, Navarro identifies another classic thumbs-inside, fingers-outside position as “genital framing,” designed to signal virility: “Remember the Fonz in the TV series Happy Days?”

     ● As “a general rule when it comes to interpreting [apparently-conflicting] emotions and/or words by looking at facial expressions” (a wide range of which Navarro reviews), “The negative emotion will almost always be the more accurate and genuine. . . .”

    ● “If you are confused as to the meaning of a facial expression, reenact it and sense how it makes you feel.  You will find this little trick may help you decipher what you just observed.”

     ● The book’s penultimate chapter, on “Detecting Deception,” includes, based on the author’s “interviewing suspects during my years with the FBI, . . . a list of twelve things I do—and the points I keep in mind—when I want to read pacifying nonverbals [i.e., attempts to relieve stress] in interpersonal interactions.”

     As I have noted, beyond using Navarro’s insights to interpret the behavior of others, lawyers and law students might apply them (or help clients use them) to:

      ● Reduce or eliminate their own inadvertently revealing displays.

     For example, in Rounders (1998), Matt Damon’s law student Mike McDermott wins a poker pot from John Malkovich’s Teddy after detecting just such a “tell.”

      ● Deliberately create their own false “tells.”  

     In Casino Royale (2006), Mads Mikkelsen’s villainous Le Chiffre thereby out-“bluffs” Daniel Craig’s James Bond (who had, perhaps just a little too suavely, advised a newly-met colleague, even as they attempted to profile each other: “In poker, you never play your hand. You play the man across from you.”)

       Indeed, in a separate book, Navarro discusses both of these topics in the context of poker-playing, although he advises that, “before you can get [other] players to believe you have a super-hand (when you don’t), you’ll need to literally rewire your nervous system. . . so that you can adopt all of the subtle behaviors that are equated with confidence.”

     ● Identify and de-escalate, or at least avoid escalating, potential (and potentially physical) confrontations, including during “interviews” and “discussions” that might be less delicately characterized as interrogations.

     For instance, Navarro notes that “arms akimbo is a powerful display of authority and dominance, as well as a claim to territory. . . . During a domestic dispute, if a police officer performs this display, it. . . may escalate the situation.”  Similarly, “In schools as well as prison yards, finger pointing is often the precursor to many fights.”

     ● Although its purportedly scientific support has been challenged, the practice of “power posing”—deliberately (and often, privately) assuming certain postures to quickly influence one’s own mood and perspective (such as adopting the arms akimbo stance to enhance confidence)—might well be worth experimenting with, even if only to reduce the instinct to display less-powerful body language.

     In the fifteen years since the initial publication of Navarro’s book, its personal and professional relevance has only increased.

     As with classic songs, the wisdom of paying careful attention to the body language of oneself and others never goes out of vogue.


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

     Constitution Day honors the anniversary of the adoption of the document (both democratic and republican) on September, 17, 1787, by members of the Constitutional Convention, in the Pennsylvania State House (now known as Philadelphia’s Independence Hall).

      David O. Stewart’s The Summer of 1787: The Men Who Invented the Constitution (2007) deftly details and charmingly clarifies four months of alliances, arguments, and altercations among the fifty-five delegates (including thirty-five lawyers, five of who would become Justices of the United States Supreme Court).

     The sometimes-day-by-day account provides not only (both literal and figurative) portraits of leading delegates, but also many lessons on the evolution, collaboration, management, and productivity of a group whose members have a range of experiences, personalities, perspectives, and skills (and which is diverse geographically, if not necessarily demographically).

     Among them:

     ● Committees, and the composition and functions. 

     In “a parliamentary fiction” employed “to encourage open discussion,” the collection of delegates constituted a “Committee of the Whole” that “could only make recommendations to the Convention, at which point exactly the same delegates would reconstitute themselves as the Convention to consider the recommendations they had made to themselves.”

     Specialized subsets of the group included: an initial three-person, committee that created the Convention’s procedural rules; several Committees of Eleven formed for specific purposes; a five-member Committee of Detail (which wrote the first draft of the Constitution, a task which demanded “balanced judgment to apply the compromises embodied in the nineteen resolutions adopted by the Convention; vision and imagination to extend those skeletal resolutions to a genuine plan of government; a lawyer’s facility with words to achieve precision where agreement was clear, [and] equivocation where it had been elusive”); a five-member Committee of Style (to produce the final draft); and, a six-person Committee on Postponed Parts (which “comprehensively reworked the presidency”; and addressed, among other issues, “Congress’s powers to impose taxes and to make war”).

     Late in the Convention, a committee of “the five oldest delegates” was constituted to consider the adoption of English-style “sumptuary regulations” that would restrict what Virginian George Mason condemned as “the extravagance of our manners, [and] the excessive consumption of foreign superfluities.”  Stewart observes that, “Wisely, this committee never reported to the Convention, nor is there a record that it ever met.’

     ● Confidentiality. 

     Early on, the delegates agreed not to divulge to outsiders any information about the proceedings.  “To enforce the rule, the East Room’s windows remained closed through the steamy summer and sentries were posted outside, at Virginia’s expense, lest the delegates’ exchanges be overheard and misunderstood.” 

     (One month into the Convention, a proposal by Pennsylvania’s Benjamin Franklin that sessions begin with a prayer met opposition from New York’s Alexander Hamilton, on the grounds that it could create “unpleasant animadversions” in the public’s mind about the delegates’ progress.)

      This rule of secrecy, along with one that enabled members to reopen for discussion previous decisions, “allowed the delegates to revise their views upon wider consultation and deeper reflection, a luxury both previous and not often afforded to public officials, even in the slower pace of the eighteenth century.”

     ● Contemporaneous Chronicling. 

     Spurred by the absence of historical records on the creation of constitutions for republics, Virginia’s James Madison assiduously prepared daily notes of the Convention’s proceedings, and revised them over succeeding decades.  “When he died in 1835, almost fifty years after the Convention, he had outlived all the other delegates.  No one was left to challenge his version of events when it was published five years later.”

     “Fully aware that Madison was creating this unofficial official record, the other delegates evidently trusted his discretion and fair-mindedness to do so faithfully.  Still, four of them, including the experienced [Pennsylvanian, Benjamin] Franklin) took the precaution of giving Madison the text of their speeches, sending their remarks to posterity unmediated by the Virginian.”

     Stewart also refers to entries in the diary of Virginia delegate George Washington.  For instance, “Washington records so many occasions on which he ‘drank tea’ with Philadelphia hosts that one hopes the term was a euphemism for a sturdier beverage.”

     (According to the book, the widely-shared assumption among the other delegates that Washington would be the country’s first president led to some awkwardness when discussing in his presence issues concerning that office.)

     ● Collegiality and Conviviality. 

     The interactions of the delegates outside of the East Room may have been at least as important as those within in.  “After sweater summer days in the Conference, the delegates naturally congregated at taverns to slake their thirsts. . . . Much politicking occurred at such occasions—Washington’s diary reflects at least a dozen of them—though no record remains of their substance.”

     In addition, “[a] bond grew among those delegates who shared an inn for lodging or dinner.  A Delaware delegate wrote that one group established a regular ‘table’ at the City Tavern for every night except Saturday.”

     Moreover, “Throughout the summer, Franklin hosted dinner gatherings at which he encouraged goodwill across the state delegations.”

     Franklin, “perhaps the subtlest politician” of the group, also notably lowered tensions by telling jokes and stories.  Stewart concludes that “with his disarming wisdom, cheerful countenance, and benign age, Franklin contributed as much as anyone to the Convention’s success.”

     ● Conciliation and Compromise. 

     The Summer of 1787 identifies as “the basic rule” of the Convention that “no one would get everything he wanted.” 

     As Pennsylvania’s Gouverneur Morris, who as a member of the Committee on Style prepared the final draft of the Constitution, stated in a letter transmitting that document to the Confederation Congress, “Each state [was] less rigid on points of inferior magnitude than might have been otherwise expected.  And thus the Constitution which we now present is the result of a spirit of amity and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.”

      At the conclusion of the Convention, Franklin, then eighty-one years old, addressed his fellow delegates in what biographer Walter Isaacson characterizes as “the most eloquent words Franklin ever wrote—and perhaps the best ever written by anyone about the magic of the American system and the spirit of compromise that created it”:
      “I confess that I do not entirely approve this Constitution at present; but sir, I am not sure I shall never approve it: For, having lived long, I have experienced many instances of being obliged, by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.  It is therefore that, the older I grow, the more apt I am to doubt my own judgment and pay more respect to the judgment of others. . . .

     “. . . I agree to this Constitution with all its faults—if they are such—because I think a general governnment necessary for us. . . I doubt, too, whether any other convention we can obtain may be able to make a better Constitution. . . .

     “. . . I consent, sir, to this Constitution because I expect no better, and because I am not sure that it is not the best.”


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

     While waiting for, or after reading, Walter Isaacson’s authorized biography of Elon Musk, law and pre-law students (and lawyers) might find much of interest in Isaacson’s best-selling 2011 authorized biography of Apple’s Steve Jobs.

     As the book’s introduction notes, Jobs’ “passion for perfection and ferocious drive revolutionized six industries: personal computers, animated movies, music, phones, tablet computing, and digital publishing.”

     Although Isaacson’s account, which was published less than three weeks after Jobs’ death, doesn’t prominently feature lawyers (either for Jobs personally, or for Apple, NeXT, or Pixar), Jobs’ creations, companies, and conduct highlight concepts and questions of continuing concern to professionals. 

     ●  Does one only focus on “the visible pieces”?

     Jobs recalled that in his childhood his father emphasized, at a workbench in their garage, the importance of “the look of the parts you couldn’t see,” like the reverse sides of fences and cabinets.  In 1976, “Jobs applied that to the layout of the circuit board inside the Apple II.  He rejected the initial design because the lines were not straight enough.” 

     A few years later, he similarly ordered the redesign of the circuit board for the Macintosh, bcause the memory chips were too close together.  Jobs would tell an interviewer, “For [a true designer] to sleep well at night, the aesthetic, the quality, has to be carried all the way through” the product. In fact, though few consumers would ever see it, he had the signatures of the Macintosh’s designers engraved inside each of those computers.

     That painstaking professionalism, and pride in having met the elevated professional standards one subscribes to, might remind some of a reference, at the conclusion of Chief Justice John Roberts’s 2009 speech at the Pepperdine University School of Law, to:

      “. . . medieval stone masons, the ones who built the actual cathedrals rather than the figurative ones. They would work meticulously for months, for years on the gargoyles that were at the very top of the cathedral even though the product of their efforts would never even be seen from the ground below.

     “Now so too with our advocates of today and advocates throughout the moot court competition. They meticulously prepared answers to dozens, hundreds of questions, knowing all the time that almost all of them would never be asked by the judges.

     “Now the medieval stone masons said they did what they did because they were carving for the eye of God and not man. A higher purpose infused and inspired their craft. I think the advocate in court also needs to infuse his or her long and lonely preparation with a higher purpose. And that higher purpose, I would submit, is the recognition of the vital role the advocate plays in vindicating the Rule of Law.”

     ●  How can counsel for a company, or for an individual executive, resist succumbing to a client’s (or adversary’s) charm and charisma, particularly when that individual’s statements, proposals, and actions seem to—or, undeniably—contradict facts, and/or violate laws or regulations?

     ●  To what degree is counsel professionally bound to advise a client not to employ such techniques on individuals inside the company, or outside the company? 

     ●  To what degree is counsel ethically compelled to attempt to correct the effects of such reality-warping?

     Jobs’ charisma, compared by an associate at Pixar to that of “mesmerizing. . . preachers,” created what his associates came to call a “reality distortion field.” 

     One said, “In his presence, reality is malleable.  He can convince anyone of practically anything.  It wears off when he’s not around, but it makes it hard to have realistic schedules.”  Another recalled that the staff “would often discuss potential techniques for grounding it, but after a while most of us gave up, accepting it as a force of nature.”  According to a third, at Pixar board meetings, “we developed signals—nose scratching or ear tugs—for when someone had been caught up in Steve’s distortion field and he needed to be tugged back to reality.”

     Among the biography’s most memorable anecdotes is that of a top coder who, fearing that, when he revealed his decision to leave Apple, Jobs would somehow convince him to stay, told colleagues of his plan to “’just walk into Steve’s office, pull down my pants, and urinate on his desk.  What could he say to that?’’”

     However, this plan leaked (so to speak), and the coder “was surprised to find Jobs smiling broadly when he walked in. ‘Are you gonna do it?  Are you really gonna do it?’ Jobs asked.”

     The coder “looked at him.  ‘Do I have to?  I’ll do it if I have to.’  Jobs gave him a look, and [he] decided it wasn’t necessary.  So he resigned less dramatically and walked out on good terms.”

     Jobs’ Jedi mind trick certainly inspired his teams to design and develop products and features, and to meet deadlines, that they otherwise might not have.

     However, it extended to situations in which, as Apple’s lead designer noted, “’There can be something he knows absolutely nothing about, and because of his crazy style and utter conviction, he can convince people that he knows what he’s talking about.’”

     After discussing Apple’s backdating in 2001 of certain stock options–which led to no legal repercussions for Jobs, but to the resignation of a director who had served as the company’s chief financial officer; to the company counsel’s paying a $2.2 million fine in a settlement in which she neither admitted nor denied wrongdoing; and to the company’s settlement, for $14 million, of a shareholder lawsuit—Isaacson concludes that, “Contemptuous of rules and regulations, [Jobs] created a climate that made it hard for someone like [Apple’s counsel] to buck his wishes.”

     ●  What is counsel’s role in attempting to stop, and/or penalize, troublesome and/or illegal behavior, and to help restore a more appropriate “tone at the top” of the company?

     Jobs’ rejection of “rules and regulations” included, according to the biography, “not putting a license plate on his car and parking it in handicapped spaces,” and “sometimes straddling two slots” in the parking lot.

      In the early 1980s, while stopped for speeding (at “just over 100 miles per hour”), Jobs actually honked at the officer writing him a ticket, and informed him, “I’m in a hurry.”  After finally receiving the ticket, with a warning that he would be jailed if caught driving more than 55 miles per hour, Jobs waited until the policeman departed “and accelerated to 100.”  The colleague who was his passenger told Isaacson that Jobs “absolutely believed that the normal rules didn’t apply to him.”

     Though legendarily insistent on the proprietary nature of Apple’s “closed” system of software and devices, on at least one occasion, Jobs simply refused to listen to the “rules” of using the intellectual property of others.  After including, without permission, a two-second clip from the vintage animated series, The Jetsons, in the public presentation of the iMac in 1998, Jobs faced an objection by a subordinate.  “’Keep it in,’ Jobs barked at him.  The assistant explained that there were rules against that.  ‘I don’t care,’ Jobs said,  “We’re using it.’”

     ●  How realistic, and sustainable, is it to demand that colleagues or associates “give 110%,” especially if they come to believe that they are being subjected to “fake deadlines,” or that their first submissions will simply and summarily be rejected?

     John Sculley, a senior Pepsi executive brought in by Jobs in 1983 to be Apple’s CEO (with the famous challenge: “Do you want to spend the rest of your life selling sugared water, or do you want a chance to change the world?”) but ousted ten years later, said that he and Jobs “would go to the Mac building at eleven at night. . . . and they would bring him code to show.  In some cases he wouldn’t even look at it.  He would just take it and throw it back at them.  I’d say, ‘How can you turn it down?’ And he would say, ‘I know they can do better.’”

     Which almost certainly reminded Isaacson of an “oft-told tale” repeated in his own 1992 biography of Henry Kissinger, concerning a report that Kissinger’s assistant and speechwriter Winston Lord (later to become Ambassador to China, and then Assistant Secretary of State) “had worked on for days.  After giving it to Kissinger, he got it back with the notation, ‘Is this the best you can do?’  Lord rewrote and polished and finally resubmitted it; back it came with the same curt question.  After redrafting it one more time—and once again getting the same question from Kissinger—Lord snapped, ‘Damn it, yes, it’s the best I can do.’  To which Kissinger replied, ‘Fine, then I guess I’ll read it this time.’”

     ●  How is the role of corporate counsel different when a board of directors is dominated by the company’s chief executive officer?

      In 1997, shortly after returning to Apple but before formally committing to be its CEO, Jobs extracted from the board a quick repricing of the company’s stock options (by arguing that it would help the company retain valued employees); then, he threatened to quit unless every one of the directors (except one, although he ultimately agreed to retain two) resigned from the board.

     After inviting Arthur Levitt, a former head of the SEC, to join the board, Jobs read a speech in which Levitt had advocated for active and independent boards.  Jobs then retracted the offer. 

     “Levitt said Jobs told him, ’Frankly, I think some of the issues you raised, while appropriate for some companies, really don’t apply to Apple’s culture.  Levitt later wrote, ‘I was floored. . . It’s plain to me that Apple’s board is not designed to act independently of the CEO.’”

     ● When, and to what degree, are executives legally required to disclose serious health concerns to the board?

     ● When, and to what degree, are boards legally required to disclose such concerns to shareholders?

     Much of the last quarter of the book discusses the effects of the cancer that was detected in 2003 and that led to Jobs’ death eight years later.  Initially reluctant to submit to conventional methods of medical treatment, Jobs did not fully inform the entire board (much less Apple’s shareholders) as his medical situation worsened, and he and the company issued misleading statements about his health. 

     Board member, and former Vice President of the United States, Al Gore insisted to Isaacson, “The press wanted us to blurt out more personal details. . . It was really up to Steve to go beyond what the law requires, but he was adamant that he didn’t want his privacy invaded.  His wishes should be respected. . . . We hired outside counsel to do a review of what the law required and what the best practices were, and we handled it all by the book.  I sound defensive, but the criticism really pissed me off.”

    In an echo of Jobs’ insistence that “he wanted all departments at [Apple] to work together in parallel.  The phrases he used were ‘deep collaboration’ and ‘concurrent engineering,’” at Stanford University’s medical center, the head of the transplant institute “did what no one at Stanford had fully done: take charge of all aspects of the medical care [and] coordinate the [liver] transplant recovery, cancer tests, pain treatments, nutrition, rehabilitation, and nursing.”

     In one of his book’s most felicitous sentences, Isaacson observes that Laurene Jobs “weighed in quietly on business issues, firmly on family concerns, and fiercely on medical matters” regarding her husband. She ultimately “asked the various Stanford specialists to come to [the Jobs’] house for a meeting that also included some outside doctors with a more aggressive and integrated approach. . . . They agreed on a new regimen for dealing with the pain and for coordinating the other treatments.”

     ●  In the legal (as opposed to the consumer products and services) domain, is simplicity always a virtue? 

     Simplicity was undeniably a major element of Jobs’, and Apple’s, success.  Jobs said, “It takes a lot of hard work to make something simple, to truly understand the underlying challenges and come up with elegant solutions.”  He refused to include an on-off switch on the iPod, and insisted that users should be able to reach any of its songs and functions intuitively, in three clicks or fewer.  And he told Newsweek, about the Macintosh, “We make progress by eliminating things, by removing the superfluous.”

     Yet, in 1988, Jobs dismissed without reading it IBM’s 125-page contract for licensing NeXT’s software. “’You don’t get it,’ he said as he walked out of the room.  He demanded a simpler contract of only a few pages, which he got within a week.”  (Isaacson does not detail the reactions of counsel for either party, or the effects on either party of the extreme deletions.)

     ● How closely should a professional focus her (or her firm’s) range of services and products, and her counsel to clients?

     Jobs famously insisted on a narrow focus for his companies.  Upon his return to Apple in 1997, he discontinued the flawed Newton personal digital assistant, and cut the sprawling line of products in development back to one in each of four specific categories: Consumer Desktop (ultimately, the iMac), Consumer Portable (iBook), Pro Desktop (Power Macintosh G3), and Pro Portable (PowerBook G3).

     Jobs told Isaacson that in 2011, he’d advised Larry Page to “focus.  Figure out what Google wants to be when it grows up.  It’s now all over the map.  What are the five products you want to focus on?  Get rid of the rest, because they’re dragging you down.”

     Beyond identifying the areas of their own and their firms’ practices, lawyers might consider restricting the number of options that they recommend to their clients, even if their full advice includes the complete range of possibilities. 

      Few, though, would or should even attempt the arrangement that Paul Rand, “the dean of corporate logos,” made with Jobs in 1985 to supply a logo for NeXT: “’You can use [the one logo] I produce, or not, but I will not do options, and either way you will pay me [$100,000].’” 

     Jobs liked the design, but failed to convince Rand to use “a brighter and more traditional yellow”: “Rand banged his fist on the table and declared, ‘I’ve been doing this for fifty years, and I know what I’m doing.’”

     ●  Does one have to be “ornery” or “empathy deficient” to be successful (or, more successful)?   

     Apple’s products (and their packaging) are famously welcoming (the iMac’s costly handle was intended primarily to signal the computer’s accessibility) and user-friendly (at a meeting with Microsoft executives, “Jobs launched into a sermon about how the Macintosh and its software would be so easy to use that there would be no manuals,” to the surprise of Bill Gates: “’Does he really mean it?  Should we not tell him that we have people who are actually working on manuals?’”).

     However, in person, Steve Jobs often was neither.  As a number of incidents in the biography vividly demonstrate, Jobs was not inclined to suffer fools gladly, and could define “fool” very broadly indeed.  If, as Jobs declared at the public introduction of the iPad in 2010, Apple has “always tried to be at the intersection of technology and liberal arts,” some of his reported conduct seems far from efficient, elegant, or enlightened.

     He could be gratuitously nasty: one colleague told Isaacson, “The one question I’d truly love Steve to answer is, ‘Why are you sometimes so mean?’” 

     Jobs responded, to Isaacson, “This is who I am, and you can’t expect me to be someone I’m not.”  The biographer notes, “I think he actually could have controlled himself, if he had wanted,” but concludes that, though “it hindered him more than it helped him,” this aspect of Jobs’ personality “did, at times, serve a purpose” in effectively “forcing change” and motivating, individually and as teams, his employees.

     A July 2012 cover story in Wired magazine, which indicated that Isaacson’s book remained a bestseller almost a year after Jobs’ death, found that:

     “. . . his life story has emerged as an odd sort of holy scripture for entrepreneurs—a gospel and an antigospel at the same time. To some, Jobs’ life has revealed the importance of sticking firmly to one’s vision and goals, no matter the psychic toll on employees or business associates. To others, Jobs serves as a cautionary tale, a man who changed the world but at the price of alienating almost everyone around him. . . . For those who, like Jobs, have pledged to ‘put a dent in the universe,’ his thorny life story has forced a reckoning. Is it really worth being like Steve?”

     (One entrepreneur deeply impressed by Jobs’ success and style was Elizabeth Holmes of Theranos, whose colleagues, according to John Carreyrou’s Bad Blood (2018), “began to notice that Elizabeth was borrowing behaviors and management techniques described in [the biography].  They were all reading the book too and could pinpoint which chapter she was on based on which period of Jobs’s career she was impersonating.”)

     Isaacson concludes that Jobs’ study and practice (at least, early in his career) of Zen “never quite produced in him a Zen-like calm or inner serenity.”

     For his thought-provoking Cypress Trees in the Garden: The Second Generation of Zen Teaching in America (2015), Richard Bryan McDaniel interviewed leading American teachers of Zen, some of whom emphasized that they had added to the traditional Zen curriculum an emphasis on, and techniques for developing, compassion.

     In McDaniel’s summary, Zen “has to manifest. . . in the development of both wisdom and compassion. . . . There is a growing sense throughout American Zen that the quest for [wisdom] alone is selfish. . . .”

     One teacher, David Yoshin Radin, told him that:

     “I think one of the problems with Zen teaching in America—at least the circles that I’ve bumped into—is that there’s not enough heart in it. . . . There’s not enough love in the teaching.  The teaching is, ‘Do this form; do this; count your breathing; and this and that.’ . . . . People should cultivate tranquility by practicing kindness.  By forgiving people.  By not thinking you can undo your pain by hurting people who hurt you.  By relaxing in the present moment.  Really fundamental kindness ideas that I think are ignored in certain dry Zen places.”


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

Three decades after his death, Isaac Asimov’s robot-related fiction remains scarily relevant, particularly for law students and lawyers.

     I, Robot’s nine short stories, written between 1940 and 1950, prefigure problems related to self-driving vehicles, artificial intelligence (AI), and industrial, medical, military, and law enforcement robots.

     Although “robot” was first used in Karl Kapek’s 1920 play, R.U.R. (for Rossum’s Universal Robots), Asimov invented the term, “robotics” for his 1942 story, “Runaround.”

      That story also introduced his Three Laws of Robotics, although in a memoir Asimov acknowledged that “I heard the Three Laws first from [Astounding Science Fiction magazine editor] John Campbell and I am always embarrassed to hear myself given the credit.”

     Those rules, which continue to influence the legal, technology, and science fiction communities (the memoir notes that “other writers began to use them[, although t]hey couldn’t quote them directly, of course”), are:

            -A robot may not injure a human being, or, through inaction, allow a human being to come to harm.

            -A robot must obey the orders given it by human beings except where such orders would conflict with the First Law.

            -A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

     Today’s readers might find ten aspects of his vision especially timely.

     ● First, like many of the policies governing social media platforms and AI applications, the three “laws” are neither legislative nor judicial, but are privately created and implemented by an owner of proprietary technology.  Asimov’s rules are “built most deeply into a robot’s positronic brains” by U.S. Robots and Mechanical Men Corporation, a monopoly that leases, but never sells, its products. 

     ● Second, just as advanced stock-trading algorithms might evade human explanation, conflicts among the three rules are “ironed out by the different positronic potentials in the [robot’s] brain,” even though no one “knows what a positronic field is or how it works.”

     In the 1941 short story, “Liar!” a robot’s brain breaks down when its every option will lead it to hurt humans.  That situation is referred to in the last of Asimov’s robot novel trilogy, The Robots of Dawn (1983), which discusses roboticists’ attempts to prevent “robot block,” or “roblock,” from “two roughly equal and contradictory orders.”

     In February, the American Bar Association’s House of Delegates adopted a resolution calling in part for developers to make AI “subject to human authority, oversight, and control,” and to “ensure [its] transparency and traceability. . . by documenting key decisions [concerning its] design and risk.”

     ● Third, Asimov’s rules aren’t absolute: U.S. Robots can modify their strengths and relative priorities.  At the risk of destabilizing the brains of a special model, in one story the company obeys government orders to abbreviate the First Law to “No robot may harm a human being,” so that these robots will not consider themselves compelled to rescue humans taking calculated risks. 

     ● Fourth, as that story—and one in Asimov’s comprehensive collection, The Complete Robot (1982)—suggest, in some circumstances preserving technology might be seen as more valuable than completely protecting humans.

     ● Fifth, the company’s troubleshooters—most notably, robopsychologist Susan Calvin—trace much of the robots’ seemingly rogue behavior to ambiguities in the three laws.  For instance, robots can logically construe preventing “harm” to include protecting humans not just from physical injury, but also from hurt feelings.  

     (Or even specifically sexual disappointment.  A human character in The Robots of Dawn recalls of a former lover: “He was a finely tuned robot who followed the Three Laws carefully.  To have failed to give joy when he could would have been to disappoint.  Disappointment could be reckoned as harm and he could not harm a human being.”)

     In fact, in a 1957 story, a proofreading robot’s attempt to protect a Northeastern University professor’s academic reputation leads to a memorable trial. 

     During his concluding conversation with Calvin, the professor predicts (sixty-five years before the rise of ChatGPT) that robots will soon “take over the original writing; the searching of the sources, the checking and cross-checking of passages, perhaps even the deduction of conclusions.  What would that leave the scholar?  One thing only—the barren decisions concerning what orders to give the robot next!”

     Separately, Asimov’s novel, Robots and Empire (1985) raises the key question of how the term “human” is defined for purposes of the First Law.

     ● Sixth, context counts.  Robots can’t always detect when the meaning of an order (such as, “Get lost”) is literal; and they may well be misled by the tone in which instructions are issued.  Asimov’s second robot novel, The Naked Sun (1965), quotes an unnamed roboticist to the effect that “A robot. . . is logical but not reasonable.”

     ● Seventh, in both collections of Asimov’s short stories the company disregards “strict laws” that prohibit the use of robots on Earth.  Its personnel deride as a “Frankenstein Complex” the widespread fear that robots will harm humans. (Nonetheless, the author’s first robot novel, The Caves of Steel (1954), partners a human policeman of a later-era Earth with a human-appearing robot who notes that, “A particularly strong drive has been inserted into my motivation banks; a desire for justice.”)

     ● Eighth, I, Robot’s final story and The Complete Robot’s penultimate one predict a possibly bloodless, but nonetheless existential, danger to humanity.

     Decades before 2001: A Space Odysseys HAL (whose motivations in both the screenplay and the contemporaneously-written novel could have been better explained), Martha Wells’ Murderbot Diaries, and real-world concerns about “the singularity,” Asimov envisioned that positronic brains would, consistent with their own interpretation of the First Law, quietly supplant humans as the controllers of civilization. 

    Susan Calvin, by far the most insightful of U.S. Robots’ humans (and once described by Asimov as “rationality personified”), concludes that “Only the Machines know [the future], and they are going there and taking us with them.”

     ● Ninth, as Calvin ultimately reminds the world’s leader (a probable android), humans will remain essential for activities, like precisely assessing grades of cotton, whose complexities can’t be completely captured by computer programs.  She also insists that, “The task of the human brain remains what it always has been: that of discovering new data to be analyzed, and of devising new concepts to be tested.”

     Similarly, Kevin Roose’s 2021 analysis, Futureproof, finds that “humans are much better than AI at handling surprises, filling in gaps, or operating in environments with poorly defined rules or incomplete information.”  Roose foresees that as such technology becomes a tool (and rival) in their careers, “Good lawyers will become more like legal therapists—creating trust with clients and helping solve their problems, rather than simply writing briefs and doing research.”

     ● Tenth, the law can itself be seen as a way of “programming” individuals, groups, and societies.  In the second novel of Asimov’s trilogy, the human protagonist admits to his robot partner, “We need Three Laws of our own, . . . but I’m glad we don’t have them.”  The following book amplifies this theme, linking it to the “psychohistory” of the author’s Foundation novels. 

     By the time of Robots and Empire (1985), which is set decades after the trilogy (and which connects Asimov’s robot stories and novels to those of both his Foundation series and his Galactic Empire series (both begun in 1951)), the human has passed away peacefully. 

     But his surviving robot partner concludes that the Three Laws themselves are incomplete, because “’humanity as a whole is more important than a single human being’”:

     “’There is a law that is greater than the First Law: “A robot may not injure humanity, or through inaction, allow humanity to come to harm.”  I think of it now as the Zeroth Law of Robotics.  The First Law should then be stated: “A robot may not injure a human being, or through inaction, allow a human being to come to harm, unless this would violate the Zeroth Law of Robotics.”’”

     If Asimov’s three series of novels reflected increasing scale, scope, depth, and humanity, his robot short stories have aged relatively poorly. Though prone to distraction, resentment, and pranks, the robots are often more likeable than most of the cartoonishly-characterized humans.

    The exceptional Susan Calvin’s perception and professionalism defy pervasive sexism.  (The same 1969 story in which a former colleague acknowledges that “she always had more brains than any of us” features her reproving another executive: “Faced with a woman reaching a correct conclusion and unable to accept the fact that she is your equal or superior in intelligence, you invent something called feminine intuition.”)

     However, Calvin sees robots as more “essentially decent” than people, and is herself regularly compared by her colleagues to a robot.  Like most of Asimov’s short story characters, Calvin seems neither fulfilled nor particularly happy as she unravels positronic puzzles and paradoxes.

    (By contrast, many readers might agree with Asimov’s assessment, in The Complete Robot, that the moving 1976 story,“The Bicentennial Man” is “my favorite and, I think, the best” of these works.)   

     Yet, over the eight decades since “Robbie,” the earliest of I, Robot’s stories, was published in the pulp, Super Science Stories, science fiction magazines have often forecast, and even helped to lead, not just technological but also social and cultural changes. 

    For almost half a century, one of the most popular and thought-provoking of those periodicals has been named for Asimov himself.