Law in the Trenches: A Warning that the Practice of Law is Not Always Glamorous

My friend Joe Jacobson has often regaled folks on Facebook with his stories from the legal trenches. I love how Joe keeps an even keel and works hard to give others the benefit of the doubt, even when things get thorny.

I usually get along swimmingly with opposing counsel. The better they are at trial law, the easier it tends to be to get along (a lot of people find this surprising). Today, however, I had a long difficult conversation with a young opposing attorney and I struggled to give the opposing attorney the benefit of the doubt. Here’s what happened. I hope you find this somewhat entertaining and doesn’t simply come across as whining.

Here’s the background: A federal judge appointed me to take over legal representation for a man who filed his own lawsuit alleging that he had been physically abused by prison guards. For technical reasons, only the guards are parties to the lawsuit, not the prison. I’ve taken a few depositions of individual witnesses, but I decided I needed a Rule 30(b)(6) “corporate representative” deposition of the prison to finish my discovery. This rule (30(b)(6) can be a power and powerful technique for learning information lodged in the inner belly of big organizations like prisons. Therefore, I sent out my subpoena and notice of corporate representative deposition last week, listing about 25 topics I wanted to discuss. The government attorney’s job is to fill the deposition chair with one or more witnesses who can answer my questions about those topics under oath.

Today’s phone call was from the government attorney, who was complaining about the way I set forth my topics. He annoyed me from the start with his know-it-all tone of voice. Here’s how the conversation went:

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Coddled Children Grow up Self-Disruptive

In The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure, Attorney Greg Lukianoff (founder of FIRE) and moral psyhchologist Jonathan Haidt address America’s mushrooming inability to engage in productive civil discourse. Increasing numbers of people are claiming that they cannot cope with ideas that challenge their own world view. They sometimes claim that ideas that challenge their own ideas are "not safe." In dozens of well-publicized cases, rather than work to counteract "bad" ideas with better ideas, they work to muzzle speaker by disrupting presentations or even running the purportedly offensive speakers off campus. There is a related and growing problem. We cannot talk with each other at all regarding many many important issues. We shout each other down and use the heckler's veto. These maladies are especially prominent on some American college campuses, but these problems are also rapidly spreading to the country at large, including corporate America. Consider this 2016 example featuring the students of Yale having a "discussion" with Professor Nicholas Christakis: You would never guess it from this video alone, but this mass-meltdown was triggered after child development specialist Erika Christakis (wife of Nicholas), sent this email to students. This incident at Yale is one of many illustrations offered by Haidt and Lukianoff as evidence of a disturbing trend.  Here's another egregious example involving Dean Mary Spellman at Claremont McKenna College who was run out of her college after committing the sin of writing this email to a student.  More detail here.  The authors offer this as the genesis of the overall problem:

In years past, administrators were motivated to create campus speech codes in order to curtail what they deemed to be racist or sexist speech. Increasingly, however, the rationale for speech codes and speaker disinvitations was becoming medicalized: Students claimed that certain kinds of speech—and even the content of some books and courses—interfered with their ability to function. They wanted protection from material that they believed could jeopardize their mental health by “triggering” them, or making them “feel unsafe.”
The solution offered by Lukianoff and Haidt is to take a moment to stop to recognize what they call the “Three Bad Ideas.”

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Trump’s Three Main Techniques for Avoiding Honest Communication

I have a difficult time even wanting to think about the man who is further degrading the Presidency every day, but it is important that we cut through the noise and work hard to understand how he convinced so many people to vote for him. John Oliver identifies three specific techniques Donald Trump uses to avoid meaningful communication:

  • Delegitimizing the Media
  • Whataboutism
  • Trolling
This video is filled with video illustrating these problems. This video is one month old, but very worth watching for its precise analysis of these problems.

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