The Tyranny of Experience

Whenever the word “experience” is mentioned, a backlash ensues.  Lest you get the impression that it’s unappreciated, the same obvious arguments are just as fascinating the thousandth time as they were the first.  But given that people who argue that “experience” is just a ploy for the ancient to subjugate the young, let’s begin with the zen-like wisdom found on a fortune cookie:

The only thing worse than a young fool is an old fool.

Why? Experience.  The young have a built-in excuse for their screw-ups. They lack experience. Old guys have no such excuse.  Consider this a tummy rub. Now for the bad news.

I received an email from a very astute lawyer, Peter Orlowicz, rather than a comment because it was off topic, that posed a question in a very thoughtful manner:

I don’t pretend to have as educated an opinion as you do on jury selection (I’m smart enough to know a part-time internship in a prosecutor’s office doesn’t count.) What I do disagree with is treating experience as an exclusive criteria for suggesting reform, or for holding an informed and useful opinion.

Experience is certainly a good teacher; however, I’m sure you’ve met some experienced lawyers that are still lousy at what they do, whether it’s jury selection or something else. Conversely, if someone approaches an unfamiliar subject with a bit of humility and willingness to learn from others, it’s possible to add a great deal to a particular field of study.

For example, I think we both agree that Radley Balko has contributed significantly over the debate on police use of force, despite never being a cop or a defense lawyer. It’s certainly easy for misguided or stupid people to have opinions about the military if they haven’t served, but I would be the last one to suggest that Tom Ricks or Sir John Keegan haven’t said anything worthwhile just because they never drove a tank or carried a Bren gun. Arguably, the ‘humility’ component is what’s missing in too many law professors and law review articles.

Experience is relative. Experience is contextual.  According to the thing under discussion, we may be able to extrapolate from experiences already possessed to experiences we will never have.  For example, everyone has felt fear and pain, but not everyone has felt the fear and pain of being waterboarded.  Nor are we likely to.

That doesn’t mean we cannot opine that waterboarding is torture, but if someone who actually endured waterboarding tells me that I don’t grasp the depth of fear and pain involved, I will defer.  This, I believe, is what he meant by “humility.”

On the other hand, there is experience that allows us to know the mechanics of how something we have never experienced works.  While we may know all the technical components of jury selection from law school classes and reading about it in books, we are incapable of realizing how it actually happens, boots on the ground.

This is a critical component in arriving at a legitimate opinion, for without appreciating the reality that it happens in seconds, with almost no information, with a room of people looking at you and a judge demanding you say words that could spell decades in prison for someone now, it’s hard (not impossible, but extremely hard) to appreciate. With experience, the chaos, pressure, ignorance, absurdity and necessity of a strike is crystal clear.

But consider this: a young person, well-educated and with strong skills and a good attitude, sees herself as a zealous, competent lawyer.  Then an older lawyer, with all the same virtues as the young lawyer, plus years of experience, comes along. The older lawyer offers the young lawyer the benefit of his experience, and the young lawyer is offended.

“I’m a good lawyer,” she responds. “How dare you suggest that you, just because you’re experienced, know better than me.”

The older lawyer isn’t suggesting that the young lawyer isn’t good, isn’t well-educated, doesn’t have strong skills and a good attitude.  The older lawyer is merely adding one additional virtue to the list. Experience.

So the question is best turned around, will that same young lawyer, a good lawyer, be a better lawyer when she carries those strengths she already possesses into the future and adds that additional lawyer, experience?  Will she learn more, grow more, understand more, over time, given the virtues she already possesses?

Like the lawprofs who feel entitled to opine as an expert on matters they’ve only read about or seen from a distance, the young lawyer who’s offended by the older lawyer’s words suffers from hubris.  The suggestion that she could be better, understand more, improve is taken as a slight to the virtues she already possesses.  Of course, it’s not.  It’s one more arrow in her quiver, one more tool.

Unlike the lawprofs, however, the young lawyer gains experience daily, adding to her skills and tempering her ideas with the appreciation of the lessons learned from making mistakes and enjoying successes.  While she may think she’s an expert on Day 1, she will slowly come to realize how much more of an expert she will be 30 years from Day 1.

But when the world is only viewed from a distance, and while experience happens, it’s not experience that enlightens through doing and living the things about which you opine, but just the passage of time plus the same unwarranted claim of expertise that was there on Day 1, the lawprof will never learn that what he doesn’t know.

Consequently, he will continue to call himself a scholar, promote his ideas of reform and improvement based on the reality that only exists in his imagination and ignore those who might inform him of how and why he doesn’t get it.  Yes, it’s a lack of humility, but this lack of humility is incurable.

And then there are rare people like Radley Balko, who somehow manage to grasp things they haven’t experience in ways that people who have say, “damn, how’d he know that?” They’re freaks of nature.


11 thoughts on “The Tyranny of Experience

  1. Peter H

    The thing that Balko and others without experience do to “get it” is to listen with both humility and a critical ear to experienced people. Experienced people can show us our blind spots, and lead us to keep looking a little harder. But the judgment of experience is not itself a lodestar. There are experienced people who are wrong or craven too.

    Your posts about voir dire made me reconsider the idea of killing preemptories, which initially sounded promising. I don’t know that you’ve convinced me fully, but I respect that your experience gives you a context I lack, and so I take it seriously in giving me pause about the idea. But of course, I don’t just take your word for it. I want to know what other people with experience think, and what empirical data might exist on the practices in real courts, or what empirical data could be gathered.

    Too bad RGK has stopped blogging. I think his views on all of this would be informative, especially with the criminal caseloads in the District of Nebraska.

    1. SHG Post author

      But the judgment of experience is not itself a lodestar. There are experienced people who are wrong or craven too.

      You’ve said it better (and far more concisely) than I did. Exactly. Experience enhances the virtues, but isn’t a substitute for them. It’s “experience plus.”

      And Balko’s still a freak of nature. Just trust me on this.

  2. Osama bin Pimpin

    I think in some cases the person who approaches a subject cold with no prior involvement has the advantage of new perspective free of blind spots and biases from first-hand experience. This is why many argue de Tocqueville was the greatest American cultural commentator. In modern academic political science some have the attitude of refusing to learn languages of countries they study is a bonus.

    Arguments of authority by experience have something in common with identity politics arguments of authority by skin color. When confronted with privilege claim of how I don’t understand the black experience because I’m not, I’ll maybe i in fact know more don’t suffer the psychological blinders that come with being my own subject of study.

    I do generally however think the minority subculture knows more about the majority culture because the former is bombarded by views of the latter and pressured to conform to it not vice versa. I don’t really mean the usual oppressed racial minorities and other PC groups. I mean like autistics vs. neurotypicals or sexual deviants vs. nondeviants.

    1. SHG Post author

      Ah, the zebra argument. Yes, in a minute fraction of circumstances, someone with no experience can see something that people with experience miss. The rest of the time, they either don’t, badly misinterpret what they see or others long before them saw it, tried and it failed, but because they lack experience, are unable to recognize it. But people do love to note the one in a million circumstance to justify the outlier.

      As for this having anything to do with identity politics, I have no clue where that comes from but see no relevant connection whatsoever.

    2. John Burgess

      De Tocqueville wasn’t inexperienced. He had a great deal of experience with political turmoil in France, advocated for free trade and against slavery. He had a great deal of experience with bad governance and parochial thinking. His view was one informed by his experiences before he got to America. He may have been an outsider in some sense, but he wasn’t a naif walking around America and going gee-whiz!

      1. William Doriss

        Nicely done, John. You get an A for the day! Political turmoil in France! Never heard of such a thing.
        “Naif walking around America,”…. Brilliant! Before him was Marquis de Lafayette. No slouch either when it comes to the American Revolution: An actor and not a journalist-writer. An unsung hero, shall we say? We owe France a serious debt of gratitude. Without the Frogs, we may have lost to the Brits and might be under their imperial thumb today.
        We repaid the debt during WWII when France was under siege.

  3. st

    The trouble with experience is the difficulty distinguishing a person with 30 years experience from the one with 1 year experience who hasn’t learned a damned thing in 29 years.

    1. SHG Post author

      Not hard. He would be the same kid who was so certain knew everything on Day 1 that he had nothing else to learn, 30 years later.

      1. Dave

        When I was working in IT, we called this the difference between someone who has 30 years of experience and someone who has 1 year of experience 30 times.

      2. st

        That works if you’ve known them for a long while, or have reliable information about their past performance.

        For many/most clients, they’re facing someone they’ve just met but need to know if they can trust.

        1. SHG Post author

          For many/most clients, they’re facing someone they’ve just met but need to know if they can trust.

          Well, no doubt then it will be a toss up between the kid who’s been a lawyer to twelve minutes, whose website says he’s “zealous, aggressive and caring,” and rather than a lawyer with 30 years of successful experience. Screw the odds. They’re so uncool and are just there to oppress the young. Or, a client could take the time to figure it out. Nah.

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