Friday, November 15, 2013

Anti-Bullying Campaigns

On a recent car ride with my 6-year-old, we heard an anti-bullying commercial on the radio that began with a man verbally berating someone else before switching gears to ask, "What if someone talked to you like that?" My 6-year-old fell dead silent during the opening tirade and remarked afterwards, "That was really bad to say." I had to explain the purpose of the commercial. When I used the word "bullying," her ears lit up. "Bullying is bad." I asked her what bullying is, and she said, "It's when someone feels bad about themselves and so they say really bad things to other people to make them feel bad too." I cringed.

On the one hand, I am happy that schools are addressing the bullying issue early on, and trying to get kids to be nice to each other. I am all for playing nice. But on the other hand, I find the turning of the tables to question the psychological soundness of the bully to be distasteful and unnecessary. It got me thinking about how there is a cultural shift taking place, driven by public schools' reaction against what appears to be a serious and growing problem with bullying in schools. It is a shift toward handling everyone with kid gloves.

I remember learning the concept of the eggshell plaintiff in Torts class in law school. The basic idea is that once a person acts with bad intent (be it negligence, recklessness, or purposeful behavior), he is liable for any harm that flows to another person from his behavior, even if the harm exceeds what could normally be expected. For example, if I were to purposely drive someone off the road, and it just so happened that my victim had a bad heart, suffered a heart attack and died as a result of my aggression, I would be liable for the death even though one would not normally expect a death to result from this type of bad behavior.

I meditated on that concept for a long time, and it seems deeply fair to me. It has changed the way that I view people and has made me more careful, more prone to assume that people have weaknesses that I will never see and which should cause me to approach them with a deeper humility. I think this is the basic concept behind changing the cultural rules as to what is an acceptable way to treat other people, and it is good, at bottom.

But I also remember with amusement and some fondness a game that I used to play in one of my childhood neighbor's basements with a bunch of other kids. They had a wood burning stove down there with a small hearth. Each child in his turn would stand alone on the hearth for a couple of minutes and the rest of us would pepper him with whatever insults came to mind. The person on the hearth was not allowed to respond. We were each the aggressor and the aggressee, and then we went off and played other games together, games where we cooperated with each other, and games where we pitted ourselves in teams against each other.

I also remember being made fun of on a regular basis at school, and doing it to other kids too. There was some maliciousness involved, but not a lot- it was how in-groups and out-groups were formed. It was a normal process.

There seems to be a more sinister edge, however, to the bullying taking place in schools now. There was a recent story in the Buffalo News about an 18 year old girl who ran down her classmate with her car because they had been having a fight over text messaging. Perhaps the removal of the face to face insults, and the migration of bullying to the digital environment has blown what has always been a normal, if somewhat discouraging, part of childhood into a huge social problem.

I don't feel entirely uncomfortable with trying to wipe out this process. I think it has to happen (and probably will anyway, despite our best efforts). I think it teaches something that adults need; it is part of our social skill set. I do draw the line at violence against each other, but I think we have to be very nuanced and careful in our attempts at educating children against bullying, that we don't create a world in which we take the eggshell plaintiff rule too far. We should assume responsibility for the fragility of people whom we have wronged. But we shouldn't over-extend the boundaries of what is considered a "wrong."

Friday, November 8, 2013


Two conversations overheard today while I was waiting:

(1) Two men in business suits, moving with gestures reminiscent of two buddies at a ball game, sit across from one another sipping coffee and remarking on how they haven't seen each other since high school, when they played hockey together and would gather in someone's big kitchen. They compare notes on how it felt to clear out their parents' belongings from their houses after they passed away, working with their siblings on the final act of childhood. Then one's cell phone rings and he talks about a property down in Ellicottville- it becomes clear he is a lawyer for the property owner, and he's advising his client to better cover up an open foundation for the winter so that a child does not fall in. He apologizes to his childhood friend, explaining that he can never get this client on the phone and that he needed to seize the opportunity. His friend responds with genuine sympathy. They sip. They are both lawyers.

(2) A man with shoulder length white hair and foam letters adorning the back of his tan corduroy blazer reading, "Jesus saves" walks up to two similarly aged women who are nibbling at eggy breakfast sandwiches as seagulls swarm outside the window in a grey sky. "Mind if I sit here?" They say yes politely, one through fuchsia and one through rouge lipstick. He tells them of a woman he talked to. He asked her, "Do you need to be saved?" and she said no-- can you believe it? All three shake their heads, sip their coffee.

Wednesday, November 6, 2013

How Lawyers Handle the Truth

After I graduated from college with an English degree and no real career plans, I ended up working as a paralegal at an immigration law firm, based on an ad that sought out individuals with creative writing skills. I admit to being skeptical at first as to why creativity would be required to do legal writing; I assumed at first that the lawyer wanted someone willing to bend the truth. So I asked about this in my interview, and the lawyer (now my boss of 12 years) explained to me, with some bemusement, that creativity in legal writing means something different than what might normally be considered "creative writing."

It was only after working as a paralegal for a couple of years that I understood more fully what the lawyer's role is, and why creative thinking (more than creative writing) is required for the job. Around that same time, I decided to go to law school.

Since then, I've become more sensitive to the way the legal profession is portrayed by the media, fostering the popular (and perhaps somewhat deserved) conception of lawyers as being concerned more at getting a lot of money for their clients and/or themselves than for getting at the truth or ensuring a fair outcome. But from my day to day work in the field, I have seen another side to the story that often goes overlooked.

I recently served as a guest lecturer at a local college. The class is a survey of Professional Writing, and features guest lecturers of various professions, all of whom give the students a writing assignment typical for their field. I asked the students to draft a legal brief, and explained how it is done. I reviewed the papers when they were done, and was pleased that most of the students had properly constructed the legal argument, explaining why a fictional client, despite having been charged for theft, remained admissible to the United States. However, I later learned from the professor that the students were troubled by the assignment because they felt that the person really should not be admitted to the country, but were forced to argue otherwise.

This type of thinking, the belief that one's personal moral intuition should be trusted as a more reliable guide for the administration of justice than a formal legal system, lies at the heart of people's mistrust of lawyers.  If these same people thought about it more deeply, they would distrust the entire notion of having a legal system based on the concept of impartiality at all.

The reason the fictional client in our hypothetical case remained admissible to the U.S. is because the formal charges against her were dropped and she never was convicted of the crime. The law only makes people inadmissible to the U.S. based on crimes of which they actually were convicted or of which they admit to having committed. And for those who are convicted of crimes, only certain crimes make them inadmissible. The law provides for many exceptions. The purpose of this labyrinth of rules is to ensure that truly dangerous individuals are not allowed into the country, but to allow most otherwise-qualified people to enter the country.

A fundamental concept in determining admissibility for those with criminal convictions is that the adjudicator cannot look behind the record of conviction. In most cases, the government officer determining admissibility is only permitted to review the statute under which the alien was convicted to determine whether the crime, as defined by the statute, is one that prevents an alien from entering the country. This is an important safeguard as it ensures that rules will be applied mechanically. It also shields the adjudicator from hearing the narrative surrounding the course of events that led to the arrest and conviction; narratives can powerfully affect one's opinion of how "bad" a crime is. But allowing the officer to look at the narrative would subject the alien to a second determination on culpability for the offense, a process that should occur only once, and in the context of the criminal proceeding. The determination of admissibility to the U.S. is not a redetermination of moral culpability for a crime; it is simply a determination as to whether someone so convicted ought to be permitted to enter the U.S.

One of the foundational principles of our legal system is impartiality in the administration of justice, and this is often achieved through the control of information that is given to decision-makers. We artificially strip narratives down to relevant facts so that legal principles can be appropriately applied. While additional facts may yield a different outcome, that is often because it is based on emotions aroused by the narrative rather than by carefully considered and balanced interests.

Because lawyers' job is to package information in this calculatedly artificial manner for judges, juries, adjudicators, and the like, we are often viewed as manufacturing a false version of reality. While it is true that the version of the facts that we create is artificially stripped down, this is done for a very important reason. We shear away the facts that are not relevant to the legal issue at hand. We mine the dense narratives presented by our clients for the legal issue. Once the issue is clear, there is a very limited set of relevant facts to be presented. This may be artificial, but the alternative is to determine guilt and innocence by mob rule or by the feelings of a single or a small group of individuals bent on protecting their own interest.

The administration of justice, the finding of culpability for crimes, is never a pretty business. There are very few ways of doing it, and modern society's system, based on impartiality, may not be perfect but it safeguards individuals' liberty, ensures fairness and equality before the law, and prevents decisions based purely on emotion. It could be a lot worse.