Sunday, November 20, 2011

The Rhetorical Divide: Lawyers and Love

This week, I was privileged to be asked to speak to the Dallas chapter of the Christian Legal Society. This blog is the text of my speech.

In First Thessalonians 4, Paul writes this: “Now about brotherly love we do not need to write to you, for you yourselves have been taught by God to love each other. And in fact, you do love all the brothers. . . . Yet we urge you, brothers, to do so more and more.”

I want to start with something that will surprise you. I want to read to you part of a letter I wrote about a month ago that was published in The Battalion, the Texas A&M school newspaper, the week after the Aggies demolished my Baylor Bears. (At this point, I quoted from the letter to the editor that I reprinted in full here.)

I have a unique job. I am proudly a lawyer, trying cases and showing up in appellate courts. But I also wear the hat of client. With a case load of between 2500 and 3200 cases in at least 28 states, I work regularly with fifty or more outside firms. These dual roles give me a fairly unique perspective on our law practice.

I want to talk about an important topic today, a problem that I think is perhaps the most significant issue we deal with on a day to day basis, and what we lawyers can do about it … although none of us had a class dedicated to it in law school.

I want to start by talking about the substantial level of incivility and unpleasant talk, what I call the rhetorical divide, that colors – or fouls – way too many conversations that surround us. You all know what I am talking about.

It pervades our politics of course. I cannot go a week without receiving, on one hand, emails that talk about the godless, socialist, Dem-Libs and, on the other, polemics bewailing the idiocy of the backwards mouth-breathers in the flyover states. One side angrily screams “class warfare;” the other side is incensed that their opponents would dare accuse them of “class warfare.” And on it goes.

(The next three paragraphs will be familiar to you if you are loyal reader of Blogarithmic Expressions, as they are lifted from a previous blog.)

I have a friend who goes all the way back to elementary school. We were in the same church youth group. We have not seen each other since high school, but through the magic of Facebook, we are once again “friends.” She has spent her adult life in politics, now writing for news magazines that you have heard of and advising candidates of a certain political persuasion. She feels compelled to post editorials – some by her and some by others – on Facebook. I try hard not to take the bait… but one time I was weak, and I asked a question about a position she had taken. I got a response that started with “with all due respect.” You know to brace yourself when you see that, because you are about to get clobbered.

Anyway, she proceeded to write for about seven paragraphs, ending by proclaiming … I kid you not … that anyone who would ask the question I had asked was, and I quote, “proven to be not only an abject failure” but also “immoral.”

This is where our political dialog has gone. In what should have been a light-hearted exchange between two old friends, I was called both an "abject failure" and "immoral." If a semi-public forum where a politico is responding to a "friend" produces this type of name-calling and insensitive rhetoric, it is not hard to understand how bad the hard-core political debate has become. Too many of us want everyone else to shut up so that we can speak. We simply cannot tolerate opposition. We no longer try to get along in what our grandparents would have called the required fashion.

I believe that there are some obvious things to blame. Our emphasis on freedom of speech has – rightfully in my view – strengthened in recent years, and with it has come burgeoning courage to speak our minds. Understanding our rights has led people to feel free to express themselves. And I guess that is the point, but the exercise of freedom without accompanying it with some common sense is often a mistake. The deregulation of the airwaves has led to talk radio of every stripe. Married to all of that, of course, is technology and its great and terrible gift inflicted on us, the internet, which has given a microphone to everyone and access to just enough political information to make us all think we know everything. Too many think they should be on talk radio, and when they can’t get through, they take to cyberspace.

With the tenth anniversary of 9/11 a couple of months ago, we heard a lot of hand-wringing about “why can’t the nation just come together like it did a decade ago?” I understand this – after all, we were, in a way, united. Less than a year after Bush v. Gore and the circus atmosphere that surrounded the 2000 election, we shared momentous times of tears, patriotism, and resolve. What we forget is the hatred that was immediately registered towards certain Americans based on their religion. What we don’t recall is the debate that ensued about the role of God in flying those planes into the World Trade Center and the Pentagon. While we were united under the red, white, and blue, much of our political rhetoric was divisive and cruel. And, of course, any such solidarity was short-lived. Fast forward to the emails you all remember getting about candidate Obama on one hand and candidate Palin on the other and you will readily admit that 21st century American dialog has sunk further.

The same issue has infected our practice of law. We all know what it is like to deal with lawyers whose strategy in the courtroom is trial by ad hominem: the attempt to convince the jury that either we or our clients (or both) are inherently objectionable and therefore whatever we say must be discounted. In our sound bite world, too many lawyers have bought into the idea that jurors expect Rambo litigation filtered through Howard Stern. Courts by and large exercise their discretion not to intervene with even a curative instruction, so the lawyers who practice this way feel encouraged to continue. Our temptation to fight fire with fire and turn up the sarcasm and vitriol is palpable.

The rhetorical divide also shows up, ironically and disastrously, in our religious life. My own denomination has been riddled for over thirty years with accusations, name-calling, rejection, and abandonment. I do not believe I am going out on a limb to suppose that most of you can point to the same kinds of history in your own church – whether the issues are related to gender, sexuality, abuse, biblical interpretation, social justice, or politics.

But maybe the full affront of this divide did not really come home to me until I was … wait for it … playing internet spades the other night. Let me just say, the world of internet spades is full of crude, rude, and downright mean people. I fancy myself a pretty good player, and I routinely get cussed out, called R-rated names, and generally denounced as subhuman. These comments are directly related not necessarily to how well I am playing but instead to how closely I agree with or track the pattern of the person doing the talking. I am not the only victim – even when my play is deemed up to snuff, I watch the conversation among the other players. It is demeaning and, to me, a little frightening.

Among the many benefits of my competitive debate career – learning about a vast array of topics and public speaking and organization and thinking quickly on your feet among them – the most important thing I got out of it was the recognition that there are at least two sides to every question. It was not unusual to argue against a certain case in a negative round and then turn around in the next debate and argue in favor of precisely the same policy. I do not suggest that this translates perfectly into the real world – no doubt many arguments and positions we hear and read are not well thought out and are made mainly to harass. Still, the ability to understand the thought processes and rationale of those with whom we disagree is a skill that should be displayed more often than it is. It was Aristotle who said that the mark of an educated mind is to be able to entertain a thought without accepting it.

Please don’t think I am just throwing stones at everybody else. It is not just everybody else. I suffer from the same disease. I try not to send the snarky emails, and I assure you that I am overwhelmingly polite when I play internet spades. But I can snap at my wife and be unreasonable with my kids. Somehow, at work, when I think I am just being direct and to the point, I can come across to others as being rude. Unpleasant, even.

The First Amendment and talk radio and the internet and our inability to see both sides of the question and bad spades etiquette are all causes of this problem that you can read about in Psychology Today or hear about on the Today Show. To say that is not news.

So, after recognizing what we all see and hear, it is time to address what I think is the problem that underlies all of this, a difficulty that is far more threatening than an insufferable talk radio host or a malicious email.

The problem is this: We don’t love each other enough.

Jesus commanded us to love one another and told us that the way people would know that we are His disciples is by our love.

We don’t love each other enough. We don’t like each other. We are unwilling and apparently unable to put up with our differences. We feel compelled to correct each other. We distrust each other’s motives. If someone disagrees with us about a point of policy, we decide that their entire ism runs contrary to ours, and we then decide that they cannot be trusted.

We don’t love each other enough.

Love is not a feeling. Love is not a reaction. The love of God, fully revealed in the love of Christ, is expected of us. Christian love is modeled on the love of Christ for us. 1 John 4:8 tells us that God is agape, a term best defined in first Corinthians 13. We read that scripture and understand that love is patient, and kind; it does not envy or boast or seek its own. Love is not rude or easily angered. It is not self-seeking, and it keeps no record of wrongs. Love is a serious of choices, of actions, and of intentional concessions; but it is not a feeling.

We are not kind to each other. The exercise of patience with the opposition is a lost art. Boastfulness abounds. Seeking our own way is the new normal.

What do lawyers have to do with all of this? It is not our fault, right? We don’t cause the problems; we just zealously speak for and on behalf of the people who are fighting with each other. We do what we are told – that is the essence of representing clients, right?


We all know the command of Christ and the language of 1 Corinthians 13, but we do the lawyerly mental gymnastics that result in exceptions. The result is that we deem certain others as unworthy of our love – offensive opposing counsel, abusive judges, uncivil members of the public (whether they are serving us at the drive through window or cutting us off in traffic), ungodly co-workers, and apparently just about anyone who strongly disagrees with us.

(Again, the next four paragraphs are lifted from a previous blog of mine.)

What compels lawyers to make these exceptions? What makes us feel able - even bound - to change the rules when they apply to us? Could it be said that we are playing God? After all, that is the first and greatest temptation, found in the third chapter of Genesis: “Don’t you want to be like God?” The forbidden fruit story is about the lie that the serpent offers: if we eat the fruit, we can be like God. We lawyers are not like a four-year-old who does not know better when we are tempted to disobey; no, the temptation is all about what we do intentionally. The lie is that we can know good and evil just like God does. This is what speaks to us – the chance to make more of ourselves than is intended, than is good for us, than we can really be.

In the end, while the fruit may have been lovely to look at, its taste would not have compelled Adam and Eve to break the rules. What made the difference was that they wanted to know what God knows, to see what God sees. The temptation was to go beyond their limited human view and to become godlike.

That is, always has been, and always will be Temptation #1. We do not like natural limitation. We chafe under the idea that there is something out there that is better, stronger, faster, smarter than we are. That is why “The Six Million Dollar Man” was a hit TV show. It is why movies like “Transformers” and “Superman” and “The Incredibles” tickle our fancy – the idea that we can transform into something more godlike holds great sway. The ubiquitous nature of WWJD bracelets and bumper stickers adds to the temptation, because the truth is that we are not Jesus and cannot do what Jesus did in every situation – our call is to do what Jesus called us to do. We can almost never walk on water or raise the dead, and we don’t get to make the rules. That is the province of God.

To let go of this temptation is to accept that we are only what we are. We can achieve, we can grow, and we can learn; and indeed, we can often do what Jesus would do. Still, there is only so far we can go. That acceptance – which is ultimately the key to reliance on God – is difficult for most of us lawyers. We can’t accept that there are things we do not understand, that we cannot do. Ultimately, it plays out in our making exceptions. We play God. We choose not to love.

What are you doing to demonstrate the love of Christ in your work?

About six weeks ago, I was leading a retreat for a church in San Antonio based on Brother Lawrence’s work “The Practice of the Presence of God.” Lawrence was a famous French monk who spent his life working in the kitchen and fixing sandals. In my sermon on Sunday morning of the retreat, I quoted these words of his:
The time of business does not with me differ from the time of prayer. In the noise and clutter of my kitchen, while several persons are at the same time calling for different things, I possess God in as great tranquility as if I were upon my knees at the Blessed Supper.

Do you remember when you Christians decided to become lawyers? Do you remember the excitement about actually helping people and those long nights pondering how you could make the law work within a biblical construct? Do you remember asking yourself questions about how you could reconcile everything that you were learning in law school with what you were learning in Sunday School?

Sure you do - we all wrestled with questions in law school about how could we square our Christianity with the practice of law - how could filing a claim be consistent with forgiveness, how could cross-examination and praise flow out of the same mouth, how can we defend rapists, how can we help big corporations shamelessly pursue the almighty dollar – and we reached a place of comfort.

We learned that we can be forgiving and praising and comfortable with the choices of our profession and actually help people. We stepped up to a profession where we could be trusted. We wanted – rest assured we felt righteous about wanting – to be the one in whom the world puts its trust, because we are Christians and we can make a difference. We were ready to be Brother Lawrence in the courtroom and the board room.

What does love mean to a lawyer? Does loving require us to be weak? I don’t think any of us would describe Jesus as weak.

Does love mean we must always agree to requested extensions? I don’t think so. I don’t think love means we abandon zealous representation of our clients. I do think we will be easier to work with than lawyers who are not practicing in love, and I do believe that we will likely extend courtesies more often than others.

How can we turn the other cheek and stay in practice? Can we be aggressive while being faithful? Is it possible to disagree passionately while still loving?

I believe the way I was treated at a football game by some A&M students begins to answer some of these questions. We introduce ourselves and have a relationship before a conflict starts. We understand and address the potential for dispute before we start sniping at each other. We love each other.

I am not going to give you a laundry list of pointers on how to practice law in love today – I could no more do that than I could give you an instruction manual on how to raise your children in love or deal with your spouse in love or be loving while attending a Cowboys game. Love comes from our relationship with the One who is love. The solution comes not so much from having an instruction manual as it does from recognizing that we must love at all times, even in our workplace, even when we disagree, even in the midst of a discovery dispute.

That said, I can give you some broad ideas. I believe that there are at least three areas that we have to recognize as our domain for addressing the rhetorical divide, three places where we lawyers can love enough.

First, there is our conversation. Let me quote Robert Redford’s lawyer character from that mediocre 80s movie “Legal Eagles:” “well-chosen words are the tools of our profession.” We can – we must – take ownership of our words. Some of us have been so close to our profession for so long that we have lost sight of the power of our words. The rest of the world looks to lawyers to pick the words by which we live. We are the wordsmiths, the models, the writers. It has to start with us.

You litigators in the room – let me say that better – we litigators in the room have choices to make. Without in any way weakening our positions or diluting our rhetoric, we can radically affect the tone of our dialog with one another. Some motions simply need not be made. Many others can be made honestly and directly – and persuasively, I might add – without lowering ourselves to our baser impulses.

You non-litigators are not exempt here. You make the phone calls, and you posture, too. Perhaps more directly, you draw the lines and set the wheels in motion that can run afoul of the rule of love.

We lawyers are the users of words, the masters of the lexicon. The term “silver-tongued” does not have to be followed by the word “devil.” We ought to retake ownership of our language and our turn of phrase to start the rhetorical world spinning in a different direction.

Perhaps something as simple as being the one to seek reconciliation is the right first step. I once had an assistant who wondered why I was the one always writing the “I’m sorry we have gotten crosswise” letter or email. The answer, of course, is that being right is rarely as important as loving one another.

No, we will not change the politics and the entertainment and even the email world very quickly. But we hold the key. We are the lawyers.

Second, we need to love better in the decisions that we make, the advice we offer, and the judgment we exercise. We lawyers are the guiders of decisions. When I started my law practice in Nashville, the very wise senior partner of my firm pointed to all the books in our law library – remember the days when law firms still used books? – and said, “Lyn, anybody can learn how to look something up in a book if he knows where to look. Our job is to know where to look. Nobody can know all the law, but good lawyers know where to find it. We are hired, not for our knowledge, but for our judgment.” You can blame choices on your clients all you want to, but every one of us knows that the world looks to our judgment at crunch time. The question then becomes – for us, for the Christian lawyers – how our faith informs our judgment.

How can that matter? We have to pursue our clients’ best interests. We are not in the business of changing our clients’ minds, are we? Well, remember that I am a client as well as a lawyer. There are many times that the railroad will make a decision based, at least in part, on the advice and judgment of our outside counsel. In my mixed client/lawyer role, I often find myself suggesting that we take an appropriately aggressive course that will not do as much personal damage as an alternative. We don’t have to make the motion for sanctions at the same time we ask for evidence to be excluded. It is a choice.

Now, I am not suggesting that as Christian lawyers we should advise our clients to abandon their best interests. I am not suggesting we leave the law books behind in favor of Sunday School quarterlies. But I do challenge you, the Christian lawyers, to ask yourselves if, in the exercise of your professional judgment, you can make a difference. I ask you to measure your judgment to see if it includes justice, mercy, kindness, patience, and love.

Third, and most important, we are depositories of trust. We have a model here, since our faith is all about placing our trust in Jesus Christ. You all know that, as lawyers, we are in positions of trust. To do our job, we have to have the trust of our clients. We want it. We seek it. As Christians, we have to be worthy of that trust.

Do you deserve it?

Those of you in the room who are parents, think about what you do to make yourself worthy of the trust of your children. Imagine being less than your absolute best, most loving parent when your child is counting on you most.

I know that lawyering and parenting are different. I know that our kids are more important than our clients. But the position of trust is analogous. The law calls it a fiduciary responsibility – for you and me and all of us Christian lawyers, it means walking worthy, having the mind of Christ, loving enough, whether we feel like it or not.

We can look around this room to see lawyers who deserve to have this trust because they operate on the basis of love. Famously, lawyers like Abraham Lincoln inspired this trust because of their choices growing out of their lives of faith and love. I think of my own grandfather, C.F. Wellborn, city attorney in Gladewater, Texas, who made countless choices that many other lawyers – his own wealthier and more famous lawyer brother among them – would not have made because they were the right and loving thing to do. He probably left some dollars and some elections on the table, but when the chips were down, people trusted him first.

We don’t love each other enough.

That has to change. The rhetorical divide has to be bridged. We have to love each other more.

And I say, let the lawyers lead the way. Let’s model love. Let’s be kind. Let’s choose words that don’t injure. Let’s don’t keep a record of wrongs. Let’s start bearing all things and hoping all things and believing all things. As hard as it is for this Bear to say, let’s start emulating some young Aggies I met at Kyle Field a month or so ago.

It is cliché to say “why can’t we all get along.” And it is cliché, in 2011, to answer that question with excuses about the internet and our freedom of speech and talk radio. It is not even enough to blame it on internet spades.

Let’s start loving each other more. And let it begin with us lawyers.