Magic in Action: The Art of Distraction in Law

(In 1.2 semesters...)

After our discussions and readings about the magical and self-referential nature of legal concepts, one of our Wiki discussions finally unveiled what this magic might be all about. Aside from the scary statistics regarding the unhappiness of lawyers, Judge Schiltz's conclusion in Being a Happy, Healthy and Ethical Lawyer made it real:

Big Law Magic

My firm was lead counsel for the plaintiffs in the Exxon Valdez oil spill litigation. In 1994, while I was still a partner, we won a judgment of over $ 5 billion. We partners all knew that, if and when we collected that judgment, even the smallest partner's share would be a few hundred thousand dollars. Most of the partners would become millionaires. Because my wife and I would both be partners, we would enjoy two slices of this enormous pie.

At about the time of the Exxon Valdez verdict, my wife and I were beginning to feel that, somewhere along the line, we had lost our way. We were working constantly. We were under constant pressure. We were constantly feeling guilty about the hardships we were imposing on each other and on our children. The life we were leading was not the life we had envisioned. We had strayed from the values with which we were raised.

I confess that I don't know that much about Big Law. From my work as a government paralegal, I knew that their resources seemed limitless. The few firm events I have attended in the past weeks have left me feeling distracted by shiny things: Hermès ties, gorgeous little finger foods, and bottomless wine glasses. The distractions, though, started to look a lot like the seven deadly sins: vanity, gluttony (blame the Catholic education). While these events are billed as ways to "get to know the firms," my take aways are regularly vague notions of what these lawyers actually do with their lives. I can only think of two people who I can actually remember as human beings, not corporate automatons. The events feel like spectacles. While I appreciate a good silk tie, that's just not why I became a lawyer. I leave these events feeling distracted from my reason for being a law student--and I think that's the sorry sentiment Judge Schiltz concludes on in his article.

Educational Magic

Yet, it was Judge Schiltz's trouble with the distortion of a legal substance that blew the magical cover: remedies. From my 1.2 semesters of law school, I learned remedies to be be the end-game. Discussions were centered on notions of "efficiency" and "just how much is enough"--questions billed as normative proxies for justice.

My Civil Procedure class read the Exxon Shipping v. Baker (2008) for its discussion of punitive damages, the same case Judge Schiltz worked on. In his discussion of the judgment amount (which eventually came down to a mere $500 million compensatory and $500 million punitive damages), sorely lacking is discussion of his clients. He did not stop to ask how much would each of his harmed clients needed to survive for a couple years before finding a new livelihood. Instead, the magic of the principle of remedies and Big Law twisted this essence of advocacy to one question, "Is this case going to make us millionaires?"

More than twenty years after the 1989 oil spill, in 2011, plaintiffs began receiving payments from Exxon. If you do the long division, and if every one of the 35,000 plaintiff class members shared equally, each would receive at most $30,000--not counting the legal fees. In reality, according to local Alaska news sources (they still follow the story), payments range from a few dollars to $50,000.

Why did our class discussion on Exxon deflect the real question of whether these amounts were fair? Why was it not important to even note that these payments would be arriving 22 years later? Why does the legal academy make me feel like I'm going rogue for asking these functional questions, following the litigation, and researching their real-world effects? Why was it more important to learn about Justice Souter's magical 1:1 ratio for compensatory and punitive damages? We forgot about the F in favor of the meaningless, humanless, R.

Breaking the Spell

Magic is the art of distraction. And Blaise Pascal's Pensees describes distraction as man's attempt to escape reality. I came to law school because I wanted to join a profession that is ultimately about counseling human beings by facing their realities with them. I think many of us are here today because we want to help someone no longer be beholden to a system or others. Why then are we the ones beholden first?

I don't pretend to know how to break the spell. I can, though, set one goal for myself: learn to listen better. It is with attentiveness that I can begin to be thoughtful, find the distractions, and get to the core of things again. It's way too early in my career to start losing my way to mere distractions.

(847 words)

-- By ArleneOrtizLeytte - 16 Feb 2012

Whistling a happy tune will in fact raise your spirits when you're sad, and singing brave songs will make an army braver. So there is also real personal advantage in writing a speech of encouragement to focus on what matters. But the reader should also be benefited, and that requires the presentation of a new idea to consider, along with implications the reader can herself or himself learn from exploring. I think your next draft, having already achieved the majority of the benefit for you, can begin there, with the reader's needs. Finding the central idea you are adding to the reader's collection, and which pathways onward you might want to sketch for the reader's exploration, are the primary steps to strengthening the piece.

I'm not quite sure what Pat Schiltz is doing in here. I understand his role in the story of the Exxon Valdez litigation, but it's not quite right to see him cast as the lawyer who wanted to be the millionaire, given that he is narrating his own reconversion to the values of conservative Catholic legal education and a seat on the Bench. (Which, to be really fair about it, was exactly what Pat intended to be doing when he was 25, as I well remember. So his Faegre & Benson identity, from which he begins his elegant narration of the light that supposedly struck him on his way to Damascus, was more of a parenthesis in his existence than a life of sin from which he was suddenly awakened by grace.) But whether Pat discovered his commitment to meaning nel mezzo del cammin di nostra vita, or just jumped off the law firm horse at the moment that the jumping was particularly good, needn't trouble us here, because it seems somehow immaterial to the course of thought you are really pursuing. Whoever you are trying to be, it isn't Pat and it isn't not-Pat either.

As you say, it's really about remedies, and the difference between remedies and corrective justice, or else it's about not being distracted. If there's a connection between the two ideas, as I think but am not sure there may be, then that's what it's really really about.