A Failure to Communicate: Clarity v. Offense

A decade ago, I learned that lawprofs didn’t care much for practicing lawyers. We were vulgar, harsh and intemperate (that’s a word used in moderated speech to mean we said nasty things). We had two unpleasant tendencies: we said what we meant and when we disagreed, we made our position clear.

Some academics don’t like this at all. Or to be more precise, they hate it when it’s done to them. They give themselves greater latitude when they do it to others, because they’re right so it’s justifiable. They make up rules (there seems to be a huge affinity for rules) that explain all this, inconsistent though they usually are, and only tell us after we’ve violated them.

This happens to me all the time, because I’m a terrible person. It happened on the twitters between Georgia State prawf Eric Segall and Alan Gura. The subject matter was one that isn’t particularly controversial.

Segall entered the fray to note that of the 87 people nominated by Trump to the federal bench, only one was black and one was Hispanic. Those are some damn lousy numbers, all other things being equal. Whether you approve of Trump’s nominees in general, pretty much every lawyer and prawf acknowledges that some of his picks were unqualified mutts.

At the same time, an administration is likely to choose nominees that reflect its perspective, so it’s unlikely to be miffed at a president for not calling up the other side to help with judicial selections. President Obama choose a woman for the Supreme Court who had never tried a case, with a grand total of one year’s practice experience. Under other circumstances, most knowledgeable people would say she was woefully unqualified. But hey, Obama was president, Kagan was his pick, and that was that.

So Trump prefers conservative textualists? He’s allowed. Who did you expect him to pick when he was elected? But that doesn’t mean there are no black or Hispanic lawyers out there who fit the bill. Yet, they aren’t on the list. Segall is right, that’s worthy of notice, and raises some serious questions of what great legal talent isn’t being considered for the judiciary and why.

But Gura has a point as well.

Like Gura, I’m brutally aware of the double-edged sword wielded in the trenches. I’ve never had a client refuse dismissal because it was granted by an old white male judge. I’ve never had a client who felt better about his sentence of life plus cancer because it was imposed by a judge who wasn’t old, white and male. In other words, when it comes time to try a case, the only thing that matters is that the judge is good (for me).

This point prompted Alan to respond to Eric:

Have you ever practiced law? Seriously, have you ever told a client, “nevermind the outcome, the judge was the right/wrong color?”

And Eric replied:

I’m going to ask you not to get personal, ok. We can disagree without casting aspersions.

And Alan sur-replied:

Aspersions? Don’t see ‘em. You say race may trump (sorry) results. I say it’s all about the bottom line. I don’t care what they look like so long as they’re smart enough to rule for my clients.

See what happened there? From the perspective of a trench lawyer (though Alan may be a bit more refined than most of us, being a big time Supreme Court winning law-talking guy), he was making a point about what practicing lawyers care about, and pointing out that the view from the ivory tower isn’t the same as the view from counsel table.

This was an aspersion to an academic, against whom lack of experience in the courtroom was used as an argument. But that’s only a piece of the puzzle. The other is that the rules of prof-speak preclude someone from calling bullshit when they think something is bullshit. It’s just rude, as far as they are concerned.

Not all practicing lawyers are blunt and clear. Many biglaw types weasel around clarity with moderated speech, avoiding any potential for offense even if it means they murder too many words and ultimately say nothing comprehensible. The only thing worse than being unclear is offending someone. God forbid. Even Josh Blackman had enough with the use of the word “interesting” as a substitute for “idiotic.”

Is this a big deal, our inability to communicate with each other without sacrificing clarity or giving offense? Well, yes. Yes it is. It’s not merely that lawprofs have some ideas worthy of discussion amongst practitioners that are inhibited by their sensibilities, but that the unwashed, from the general public to reporters, seem to take the word of academics as gospel. And too often (think Larry Tribe), it’s nonsense.

If we’re to play the moderated speech game, address some academic’s ridiculous assertion using only their approved lexicon, nobody gets the point. It’s “curious”? It’s “interesting”? That doesn’t quite convey the same message as “it’s ridiculous” or “it’s batshit crazy and completely wrong.”

Sure, we can just ignore every pedagogue spewing their pet theories on social media, making their admirers stupider by the twit, but then we are constrained to deal with sentiment that’s formed on legal gibberish. That’s not going to help anyone.

Or we can join in the discussion, argue positions using real words, clear language and, when needed, expressing the difference between the effete view and reality. But then they’re gonna be angry with us for being mean and vulgar, casting aspersions.

If the legal academy wants to talk only among itself, using the carefully-crafted language that never offends anyone, that’s fine. But if they want to play in public, express their views openly, then they don’t get to make the rules as to what words others can use, what challenges to their view others can make or how they’re allowed to do so.

Are we more offensive than the academy would prefer? You bet. But when you choose to venture outside the academy, you don’t get to tell us how we’re allowed to speak. If you don’t like it, you can ignore us, but you don’t get to make the rules.

21 comments on “A Failure to Communicate: Clarity v. Offense

      1. Patrick Maupin

        An interesting, perhaps even curious, question is whether that sort of mildly irritating “maybe not me but…” response is its own minor vice, or is a gateway drug to the “maybe not you but…” that is exemplified by the letter from the doctor’s office that takes three pages to say “We provide great service! And for that we expect to get paid. (But of course, if you’ve already paid, you can disregard this letter.)”

    1. Billy Bob

      You mean the “antidote”. Responses are not necessary until asked for. “Effete” members of the academy can be ignored. Somehow, we knew you were going first today. Either you or B. McCloudy Day. Choose your words carefully, Patrick; otherwise the Host will become flummoxed and irascible. Ethereal distances cannot mask his displeasure upon having to sift thru all of these inane comments coming from the Great Unwashed.

      As for aggressive aggressiveness, are you inviting World War III? Oh wait, that’s the President’s job!

  1. B. McLeod

    It was “personal” because it touched on the absence of relevant experience behind the professor’s views and because professors, many of whom have never handled any litigation at any level, are hypersensitive to this criticism. They should be when it comes down to issues about judge selection, as the only interaction a great many of them will ever have with judges is in parsing panel and en banc opinions issued on appeal. Professors who have this issue don’t like for people to mention this, because it is a inherent shortcoming in the sense that they are never going to address it, either by actually litigating anything, or by asking trial lawyers for input prior to opining.

    An extension of the criticism is that due to their lack of litigation experience, professors’ views are often based simply on their own, preconceived biases that judges of a certain color or gender will rule a certain way on a range of “intersectional” special issues. Today, this is called “identity politics,” and is apparently okay. It used to be called “prejudice” or “stereotyping,” and was distinctly not okay (but what a difference a label makes).

    1. SHG Post author

      In the olden days, we used to argue that there should be a trench lawyer on SCOTUS, so somebody there had a clue how its decisions played out in the trenches. But Clarence Thomas is black, so that’s close enough.

    2. Richard Kopf

      B. McLeod,

      While Professor Segall’s request that Mr. Gura “not get personal” or “cast aspersions” when questioned about whether Segall had ever represented a client was overly sensitive (and strange), Segall does have some experience as a practitioner.

      According to his resume, he spent one year at Big-Law as an associate and four years as a “Trial Attorney” in the Special Programs branch of the Civil Division at DOJ. I have dealt with lawyers from the Special Programs branch. If I remember correctly, the fellow who represented the government in the federal partial-birth abortion case that I tried and which went to the Supreme Court hailed from Special Programs. Before appearing before me, that lawyer defended the government after the Challenger blew up. He was one of the best lawyers I have come across.

      Segall is also a legal realist on the progressive side. He is a provocative writer as evidenced by his book, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges (2012). The legal realist in Segall makes his comments to Mr. Tura all the more strange. Most legal realists of which I am aware are not afraid to mix it up.

      All the best.

      RGK

      PS. I seem to remember Segall taking a shot at me but I can’t remember why, where or when. Anyway, as Scott reminded the world yesterday, I am very old.

  2. Skink

    Don’t forget the tender lawyers. Pretty recently, one sent me a pleading that I called “crap” because it included time-barred claims. It was a one-sentence email.
    I was called unethical. I’m still laughing.

  3. Matthew S Wideman

    Trial law makes you agressive because YOU HAVE TO BE. I once spoke with a group of law students who wanted to do family law. I gave a mini Matt Wideman clinic on “exposing bullshit by opposing counsels”. I was told by the moderator I needed to watch my language. I shut up and did not channel my SHG. I should have told the moderator that if you want to represent your clients zealously you will have to get your hands dirty and grow a pair.

    I do often feel at these alumni get togethers the street lawyers are seen as the peons and hustlers compared to the gleaming academics.

    1. SHG Post author

      Some years ago, I sat for a Supreme Court Review presentation by a highly regarded judge exclusively for members of a criminal defense lawyer organization. Every other word out of his mouth was “fuck.” No one blinked.

  4. Fubar

    From the perspective of a trench lawyer (though Alan may be a bit more refined than most of us, being a big time Supreme Court winning law-talking guy), he was making a point about what practicing lawyers care about, and pointing out that the view from the ivory tower isn’t the same as the view from counsel table.

    The view from at least one chair at the counsel table:

  5. James L. Smith

    I went to hear Texas Racehorse Haynes back in the 70’s when he talked at Camp Lejeune. It was just wonderful to hear him talk salty and tell stories about Texas courts. Memories of those stories still bounce around in my old head, one of them being “SWAT” stands for “suspended while awaiting trial.” (Well, not any more since qualified immunity kicked in.)

    I did get a real kick out of former Federal Judge Nancy Gertner exclaiming in a symposium about civil rights that “Federal Judges suck!” If you want a link to that quip, I can pull it up.

      1. Billy Bob

        “Full” Hahvahd, she said. Hey, I see what you did there. Hey, H. Law saved me from ten years in the pen, but that was when HLS lawyers were real lawyers, and not wussies. L. Tribe-breath. Sorry Lawrence, I do not mean to pick on you. We trust you and Liz Warren are both Native Amrikan Indians. You are merely the current poster-prawf for,… oh forget it! IANAL. I might even be wrong. How many SCOTUS justices are from either H. Law School or Yale? All, or none?

        This observation may be belated: But Elena is a lady Jewish descent from the Levant, and Clarence “My-Lips-Are-Sealed” is a black man from Pea-Pickin’, Georgia. So what seems to be the problem with diversity issues on the Hi Court? And yes, Sonia is the “Wise Latina” from the Blackboard Jungle of South Bronx Casina, south of the I-95. That is–for those who are unfamiliar with The Br0nx–you do not want to go there after dark! Nor in broad daylight. (She has been around the block a few times, trust it.) So they never had any trial experience to write home about! Who cares?

  6. ShelbyC

    I understand how Segall feels. I regularly suffer the same insult when I make legal comments on twitter. It’s very hurtful.

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