Which One Is Ed?

I have finished reading The Better Angels of Our Nature: Why Violence Has Declined by Steven Pinker and have been recommending it to the few of my friends I think might read it. Pinker convinces me that violence has declined and he convinces me about the reasons it has declined. Neither my view of human nature nor of our future are the same as they were before I read the book.

The two most immediate concepts impacted for me: political correctness and the evolving sense of decency. The evolving sense of decency will take a little more work, so I'll comment on political correctness.

I have for the most part viewed what we call political correctness as an irritating interference with free expression: Who cares if I say "stewardess" or "flight attendant?" (Apparently a lot of people). I heard a slight quibble this weekend over the use of "Comanches" as a sort of a mascot for a professional organization. The organizer who liked the name because it was Texan and Native American argued that the name was being honored and not ridiculed. The politically correct objector said we should not use any racial or ethnic monikers because it promotes stereotyping. I'm not sure who wins this in the long run, but after reading Pinker's book, it occurs to me the advocate of the name may be dating himself (and me, since it sounded fine to me) whereas the PC objector may be right about where we are going in society.

When I was in high school, it was perfectly polite to make fun of homosexuals. I did not hear the word "gay" used in that sense until later. Then, I thought a perfectly good word (Like the Gay Nineties) had been ruined. Much the same about jokes about violence against women. A man would discipline his wife, much in the way of Kate in "The Taming of the Shrew." Cruelty to animals was much more acceptable when I was young, now it leads to Dahmerism.

Now, these things have changed. And violence has also plummeted. Pinker makes a connection. If he is right, good riddance to bad jokes and welcome PC. We can call the group The Fat Old White Men Pretending to be Young and Energetic Like a Band of Plains Indians Warriors.

On Clichés

It has been a while since I've posted. No one has complained or apparently even noticed, but I am feeling disoriented by the lack of structure in my life. The ritual of nightly (or in the wee hours of the morning) pounding out what is on my mind has been interrupted by the whip of economic necessity and the slings and arrows of outrageous fortune. Differently put, I have been working and it has kept me from my play.

Now for the correction (or the swinging back of the pendulum), I love a cliché.

The wee hours of the morning. I never recall having used the word "wee" in any other context. "The small hours of the morning" says the same thing. About thirty years ago I heard a jury argument in which the lawyer (one Warren Burnett of Odessa, Texas, now forgotten, but lionized by the young lawyers in those days) told the jurors to make a decision that they would not wake up and worry about in the wee hours of the morning. I have now repeated it in jury argument dozens of times.

I associate the phrase in my mind with another phrase, "the drinker's hour." I have understood there is an hour about three in the morning when the alcohol wakes you up again after passing out earlier in the evening. Is this in Malcom Lowry's Under the Volcano? It turns out a musical band of a genre foreign to me (post-grunge?) called a song "the drinker's hour." The Von Ra drinker's hour is 2:35 a.m. Whether we wake up from alcohol or the slings and arrows of outrageous fortune in the wee hours of the morning, it is always something uncomfortable, that a juror does not want to have to do for making a bad decision in deliberation.

We sometimes teach the use of clichés in trial advocacy courses, though no one says it quite like that. The idea is to find a theme the jury will recognize for the trial. Something comfortable and settling like, "A leopard doesn't change its spots" or "If you lie down with dogs, you'll get up with fleas" or "Oh what a tangled web we weave, when first we practice to deceive" or "Don't rush to judgment." Cliché's all, but innovation is not what the law is supposed to do. New law takes a few centuries getting used to.

Journalists and comedians seem to get excited about stealing other people's work, but lawyers do not. It is perfectly OK to get a copy of someone else's final argument and memorize it word for word and then deliver it to the next jury. Pleadings and briefs are often cut and paste (now in the word-processor sense, before, literally). Lawyers don't call it "plagiarism," (unless a client pays to call it plagiarism), we call it "precedent."

Whip of economic necessity. This is a cliché, but it seems in narrow circles. Back when Texas still required insurance companies to actually pay a little bit to workers injured on the job, there was case law that explained someone might have to keep working even after suffering total incapacity because of the whip of economic necessity. If the kids are hungry and you are losing your house, you keep working even if you are hurt. To me, it sounds like a cliché, but an internet search doesn't even produce the phrase.

Slings and arrows of outrageous fortune. Most everything Shakespeare said first is now a cliché. Hamlet used this phrase when deciding whether to commit suicide. Talking about worries, I like "uneasy lies the head that wears the crown" also.

In a final argument I gave in an asbestos case many years ago, I cribbed most of the language from Shylock's speech: "We are people too. Don't we have hands, organs,
dimensions, senses, affections, passions? Aren't we fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison us, do we not die?" Something along that line. I didn't give credit, foolishly believing it would be obvious. Later the court reporter told me that the asbestos company's defense lawyers and later a national network of asbestos defense lawyers had been ordering the transcript from all around the country to decide how to answer it. For a while it was entertaining watching the asbestos defense bar, always stump ignorant, trying to debate Shylock. (Ultimately, through the clever misuse of bankruptcy laws the answer was much like that in the play: "We have the political power, so you little people sooner or later lose, no matter how clever you think you are.")

Stump ignorant. Because I have not yet been called out on it, I don't yet consider this a cliché, but merely a very clever thing I say. Now for the confession: I think I read that phrase in a Thornton Wilder novel--The Eighth Day, maybe. "Why would you do that," he asked. "Well, because I don't want to live and die stump ignorant," he answered sagely.

A Scratch, a Scratch: Marry, tis enough.

I did a couple of hours of jail therapy today. That is, I made a couple of long jail visits to clients for interviews to prepare for sentencing.

No matter how wrapped up I am in my silly, little problems during a day, once I have made the trek into the jail and spent an hour with the guys I get a sense that my own problems are, well, little and silly.

Let me tell about Diosdado (not his name as you might imagine). Diosdado, in passing, when asked about his scars, mentioned he had a "little" knife scar on his chest. He then demonstrated about a three inch scar.

(BENVOLIO

What, art thou hurt?

MERCUTIO

Ay, ay, a scratch, a scratch; marry, 'tis enough.
Where is my page? Go, villain, fetch a surgeon.

ROMEO

Courage, man; the hurt cannot be much.

MERCUTIO

No, 'tis not so deep as a well, nor so wide as a
church-door; but 'tis enough,'twill serve: ask for
me to-morrow, and you shall find me a grave man. )

In what type of world is the three inch knife wound only mentioned as an afterthought? Diosdado was born on the Mexican side of the border and carried to West Texas by his Dad at the age of three. When he was about nineteen he was arrested for graffiti. The city fathers of the small city had decided to crack down on gangs and therefore cracked down on tagging. So, an act that during kinder times would have been viewed as a prank and punished lightly if at all, became a felony. Felony probation. Revocation of Probation. Revocation of Permanent Resident Status. Deportation. Illegal reentry. Another felony. Another deportation. Another illegal reentry.

So now after about ten years of incarceration, he is looking at more time. And the instrument of his most serious crime was a can of spray paint.

"My Dad took me to West Texas and all I got was this lousy knife scar."

Of the Disadvantage of Greatness.

Why not aspire to greatness? Especially when young, why not decide to be CEO or President of Something or Congressman from Somewhere or Lord Mayor of London?

Why can't I sleep on silk sheets, eat salmon roe and wear diamonds the size of horse-dung? Why can't I have a trophy car, long and sleek and maybe a horse or dog bought from the very cover of the Horse and Dog Lovers Gazette?

Or a jet. "No, damn it, I don't want the King Air today. Get the Hawker ready."

At my age, rejecting greatness has a faint odor of sour grapes and laziness. But looking back, I feel blessed to have failed in all of my periodic spasms of ambition.

As always for me, GOAB leads the discussion on this issue (his essay is hidden under the title). By the way, for all of you Montaigne lovers, although the link provides a reference to a different translator, my favorite is one Donald M. Frame. This version of The Complete Essays will be available at the Brownsville Public Library just as soon as I return it.

GOAB immediately acknowledges that he is ill-suited for the pursuit of greatness: "To eschew greatness is a virtue, its seems to me, which I, who am only a gosling, could attain without great striving." Yes, the laziness factor. This then, in moderation, is virtue in itself. If a little Sloth can curb a great deal of Pride, Avarice and Lust, how can it be all bad?

He then gives the proper means of growth: "When I think of growing, it is in a lowly way, with a contsrained and cowardly growth, strictly for myself: in resolution, wisdom, health, beauty, and even riches."

And then to the jugular: "But that prestige, all that powerful authority, oppresses my imagination."

GOAB then goes forward with the many disadvantages of greatness: Your jokes are always funny and your advice is always wise. And the only skill you can develop is managing horses, because they, at least, will not let you win.

He shows that greatness in itself it to be avoided, and gives the reasons why.

Shakespeare also makes the point in Henry IV, Part 2. King Henry says:

How many thousand of my poorest subjects
Are at this hour asleep! O sleep, O gentle sleep,
Nature's soft nurse, how have I frighted thee,
That thou no more wilt weigh my eyelids down
And steep my senses in forgetfulness?

And then,

Canst thou, O partial sleep, give thy repose
To the wet sea-boy in an hour so rude,
And in the calmest and most stillest night,
With all appliances and means to boot,
Deny it to a king? Then happy low, lie down!
Uneasy lies the head that wears a crown.

Even if we cannot accept wholesale the argument of GOAB and King Henry that greatness in itself is not worthwhile. Certainly, the easier argument is that life is just too short to bother.

Why isn't there more advantage to wealth and power in life? It is the problem with death. As G.K. Chesterton describes in one of his Father Brown stories:

"There is in the world a very aged rioter and demagogue who breaks into the most refined retreats with the dreadful information that all men are brothers, and wherever this leveller went on his pale horse it was Father Brown's trade to follow."

Sans teeth, Sans eyes...

Do not go gentle into that good night,
Old age should burn and rave at close of day;
Rage, rage against the dying of the light.

My first reaction to the Dylan Thomas poem is, "Typical old drunk. You'll accomplish not much raging against the inevitable."

But he, at least, has a plan for aging. I haven't gotten there yet.

People will give subtle hints that you are aging. For instance, I went to a comedy show with Austin and Kate a while back and all the comedians called me "Old Dude."

I do have some aging coaches who give me some ideas on how to do this hard thing.

My mother works cross-word puzzles every day and calls me to discuss some of the hard ones. She is the determined wordsmith at 85. She is planning a 100th birthday celebration with two of her sisters. She would be the oldest if they make it. She has an aunt on each side of her family who lived past 100, so she is hopeful. She heads out most days for a long walk around tiny Romney, WV. She must be some type of town fixture by now.

My old Grandma Stapleton was reciting poetry until her last year at 88. She was formidable and aggressive, too, until the end.

My friend Dr. Kuri, also, has given me much guidance. At 82, he still works seven days a week, preparing patient histories and doing pre-employment physicals. During a cross-examination today, he defended his opinion, despite his age, by noting that he is still 6 years younger than Justice Stevens. True. John Paul Stevens was born April 20, 1920 and turns 88 this month. He remains active on the Court and if he can last three more years he will pass Oliver Wendell Holmes, Jr. to take the record. Dr. Kuri could also have noted he is still 9 years younger than Holmes was when he was still writing Supreme Court Decisions. (Stevens authored Atkins v. Virginia, the case I discussed yesterday, that banned execution of the retarded.)

Once upon a time, long, long ago, I used to worry about not having saved any money for retirement. It was Dr. Kuri who let me off the hook on that one and told me I could not retire anyway, because I would deteriorate much too rapidly.

The worst thing about longevity: you outlive all your friends. I watched as my Grandma Stapleton's last friends and relatives died. She would watch the obituaries closely. There was a sense of triumph that she had outlasted another one, but also the sad realization that she was being left more and more alone.

Normal changes with aging. Dr. Kuri notes about teeth: it is not normal to be toothless at thirty. It is normal at 90.

I find that I am not always sure whether something is wrong or it is just a little aging. I was having a little trouble with my knees getting up and down stairs recently. I thought, "Whoops, aging." Then it get better and went away. I think I had too much incline on the treadmill during my once-monthly attempt at exercise.

One option is to try not to age. You know, comb overs, prematurely orange hair.

Another is to accept the course as the poet describes it:

And so he plays his part. The sixth age shifts
Into the lean and slipper'd pantaloon,
With spectacles on nose and pouch on side;
His youthful hose, well sav'd, a world too wide
For his shrunk shank; and his big manly voice,
Turning again toward childish treble, pipes
And whistles in his sound. Last scene of all,
That ends this strange eventful history,
Is second childishness and mere oblivion;
Sans teeth, sans eyes, sans taste, sans everything." — Jaques (Act II, Scene VII, lines 139-166)

"The law serves of nought else in these days but for to do wrong."

A lawyer I knew blew his brains out this week. He was the founder of a successful firm based in several Texas cities.

Another lawyer I worked with took an overdose of heroin about three years ago. He had been barred by the judges from helping with indigent cases in Denton County.

I picked up a rifle from another lawyer-friend about the same time after he called me and said he was afraid he would use it on himself.

A Court of Appeals Judge in Austin killed who had been a successful plaintiff's lawyer killed himself a few years back.

An Hidalgo County judge killed himself.

I know it isn't just lawyers who commit suicide, but we seem to have more than our fair share.

I have tried to look up the statistics, but apparently death rates are not kept by profession well enough to figure it out. The dentist, police officer urban legend cannot be proved one way or another.

We do know the statistics on race and gender: Non-Hispanic Caucasian males are the big losers. A non-Hispanic Caucasian is 2.5 times more likely to kill himself than an Hispanic or African-American male.

Maybe that is because Anglo males tend to be dentists, police officers and trial lawyers.

I do have a sense that litigators are more likely suicides than office practitioners. Real estate lawyers and will writers seem to all die in their 90's--of boredom. I used to cut out and send a copy of the obituaries from the Texas Bar Journal to my friend Leo. I would tabulate the average age of death for trial lawyers, 53, and office practitioners, 93. Leo soon quit trying cases and has been aging very slowly in mind-numbing mediation work. He looks great.

What about the law practice would make life so unbearable that we cannot go on?

Tolstoy's short story One Day in the Life of Ivan Denisovich nails it. Many lawyers live a life worse than useless --this is a terrible burden to bear.

Many of us are trapped into work that, as its day-to-day work, beats down poor people. One of the speakers at the conference this weekend gave a stock justification of the law: it keeps us from taking our disputes to the streets.

I wish I could credit the law for this. My hard thirty-plus years in the law lead me to believe the purpose of the law is to make sure people who have the lion's share of the bounty in this land keep it and people who don't have any, don't get much away from them.

Criminal law hammers the poor. Civil law, to the extent it involves the poor, hammers the poor. There is an area of law euphemistically called civil litigation that is mostly big corporations suing each other and with this the poor only get hurt if they get in the way.

For a very brief period in the law in the United States there was an effort to help the poor. Workers' Compensation laws, products liability laws had a brief period when the poor could get a little redress. Criminal law took a brief run at protecting the rights of the poor. But the system has "righted" itself. The pesky poor people have been beaten back into their hovels.

Lawyers who once could make an honest living without savaging the poor have now had to move on. It is hard to find work these days that does not tear out the lining of the stomach.

Shakespeare's Henry VI, part 2 is often misquoted, either to attack or defend lawyers when Dick the Butcher says, "First thing we do, let's kill all the lawyers."

In Shakespeare's play, Jack Cade replies:

Nay, that I mean to do. Is not this a lamentable
thing, that of the skin of an innocent lamb should
be made parchment? that parchment, being scribbled
o'er, should undo a man? Some say the bee stings:
but I say, 'tis the bee's wax; for I did but seal
once to a thing, and I was never mine own man
since.

In life, he had reasons for his grievances against the law. He was the leader of about 5,000 Kentish peasants who briefly claimed London. They issued a manifesto called the The Complaint of the Poor Commons of Kent. One of the items of complaint:

The law serves of nought else in these days but for to do wrong, for nothing is spread almost but false matters by color of the law for reward, dread and favor and so no remedy is had in the Court of Equity in any way.

Jack Cade and his men were offered a pardon, betrayed, and the government stuck his head on a pike on London Bridge. Yep, he was right about the law all along.

If Shakespeare was correct in his description of Cade that he wanted to kill all the lawyers, then Cade was mistaken in believing this would help. Lawyers are seldom murdered by parties in lawsuits. We are fungible commodities. Kill one lawyer and you only get another.

But he was not mistaken in believing the law was the enemy of the poor. And it is becoming so again in these United States.

So Jack Cade won't kill us, but unless we can find a way to put a little service to humanity in our calling, many of us will perform the chore ourselves.