Thinking Like a Lawyer & Antifragility

Thinking like a lawyer is what law school is supposed to be all about, and to some extent, it is. Now many people, like Daniel Pink or Gerry Spence, agree that is true--and woe to us all. And to some extent, that also is true. Word nitpicking, “word gravel” (Spence), and endlessly argumentative perspectives (for the purpose of delay or battle by attrition) are all too common in the legal profession. But I want to emphasize a more positive way of thinking about this topic. In fact, I want to consider legal thinking in the context of how lawyers tell laypeople to think about the legal issues put to them, because in this case—especially with juries—we have to put our perspectives in terms that everyone should be able to grasp. 

The Legal System, Torts, and Negligence

I’ve thought about this because I’ve recently finished Nassim N. Taleb’s Antifragile, his intriguing (further) consideration of how risks can affect us. Because I will review the work in a separate post, I won’t go on at length here about the many aspects of the book, but I do want to point to some salient features. One, following a pattern that NNT set forth in his two previous books, Fooled by Randomness and The Black Swan, he favors practitioners over academics. He preaches empirical skepticism from a linage coming starting with Menodotus of Nicomedia through Sextus Empiricus down to the present. He criticizes much of academic medicine because of its rationalist (as opposed to empirical, skeptical) mindset. The mindset that he criticizes says, “If we can do it, we should”, which leads us to think that we can fix a problem by doing this or that without consideration of system effects. He offers a number of examples that make sense. 

However, one thing that he doesn’t address much is lawyers and the common law legal system.* Perhaps it’s because he’s only been exposed to contract-drafters and securities regulators, the sorts of attorneys who attempt to extinguish risk and minimize every manner of Black Swan. Unfortunately, he doesn’t address the common law world of tort laws, for instance. Tort law developed in the U.S. in part as a response to increasing industrialization and commercialization. In short, we had more not governed by contract or status. We had a number of more casual but often consequential interactions that required the law to decide who lost and who gained in such interactions. For instance, who paid what to whom if farmer Brown’s cow was on the railway track and was struck by the train? (Such collisions could damage the train, but the cow usually came up the worst; locomotives have cowcatchers, but cows don't have train catchers.) With the advent of automobiles, all of this became much worse. Now autos could run into trains and to each other. So how did the law respond? 

Following a pattern laid down in the British Isles before the American Revolution, the courts laid down principles on a case-by-case basis, using prior decisions as precedents to establish the norms for later courts and parties to follow. This system dealt with the practicalities of the law at the level of actual litigants and in light of practical necessities. This should make NNT happy: practitioner and practice-based guidelines established according to need. Of course, sometimes the system seemed too overgrown and complex and needed some rational pruning (my Garden metaphor again!), but generally, the rationalization process was a distillation and not a complete overhaul. Some standardization occurred, but not a huge amount. One state could look at what another was doing and could adopt or reject a practice as it saw fit. What works in Iowa might not work in California or New York, but it might prove quite useful (and enlightened) in Nebraska. 

Consider the legal concept of negligence, from the realm of torts described above, which attempts to weigh whether a loss suffered by an injured party (plaintiff) should shift to another party when the plaintiff believes the defendant should have acted differently to avoid the plaintiff’s loss. The plaintiff can shift the loss (obtain a judgment for damages) to the defendant, if the plaintiff can prove by a preponderance of the evidence (more about burdens and evidence later in this essay) that defendant should have acted to prevent the harm from occurring.

We say that defendant had a duty to act to prevent the harm from occurring by acting as a reasonable person would act under like or similar circumstances. The logic of negligence most widely known in legal circles comes from the decision of Judge Learned Hand in U.S. v. Carroll, a case about a barge that broke loose and sank after a tow ship accidentally severed a line anchoring the barge to a pier. The U.S. government, owner of the barge, sued the tow ship (Carroll) for the damages caused, alleging negligence. Justice Hand established a “calculus” of negligence that has remained quite influential throughout the years:

         

[T]he owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL.

To expand on this, one can state: If (Burden < Cost of Injury × Probability of occurrence), then the accused will not have met the standard of care required. If (Burden ≥ Cost of injury × Probability of occurrence), then the accused may have met the standard of care.

This classic formula has served at the touchstone of thinking about negligence since it was written in the Carroll decision back in 1947. When you think of the issue in this manner, it makes a lot of sense to formulate things this way. Analytically, it’s very clear and concise. Of course, in practice, it’s much messier. Indeed, as any experienced tort lawyer will tell you (or the Iowa Rules of Appellate Procedure for that matter), questions of negligence are normally decided by applying the principles to the facts of the case, and what does or does not constitute negligence normally lies with the fact-finder, which is usually the jury. Thus, predicting what is or is not negligence becomes difficult because the issue is by definition fact and context-specific; indeed, juries bring in attitudes from their communities that vary over time and place. For instance, what juries accepted as negligence 30 years ago might be rejected today because of changing community attitudes (from business interests campaign against tort claims brought against them) or by distance (how a jury might dispose of a claim can vary from place to place (and even jury to jury). All of this remains decentralized and ad hoc, thus allowing change over time without recourse to the political process (for the most part; much of so-called “tort reform” is an instance to trying to freeze the system to limit damages set by jurors for injury awards). To the extent juries aren’t limited by new reforms, this most democratic (in both its good and bad manifestations) process allows some predictability overall while allowing for change and individual variations over time and place. This, to me, seems a workable system, for all of its faults, which I’ve come to know well in the course of over 30 years of practice. 

Burden of Proof

Another key area where I think that the law has some useful insights to offer all of us concerns the burden of proof. Specifically, who has the burden of proving (or disproving) a proposition (e.g., “Jerry was negligent and this injured me”) and how much proof is necessary for an actor (the court system) to accept that the proposition as proven sufficiently to act upon it (e.g., order Jerry to pay Sandy money for the harm caused by his negligence). 

Generally speaking, a party seeking to establish a proposition has the burden of proving it. In other words, if you want the court to order something, such as payment of money damages or to order a person to refrain from acting via an injunction, you must prove the necessary elements. The standard of proof is the amount of proof necessary to establish a proposition sufficiently for a court to act upon it. In most civil cases in most jurisdictions, this standard is a preponderance of the evidence; in criminal cases, beyond reasonable doubt (and with various other permutations available for less common cases). For instance, for me to obtain a judgment against you for ten million dollars, I need only prove the legally required facts by a preponderance of evidence; however, if the State wants to send me to jail for a day, it must prove all of the legally relevant facts beyond a reasonable doubt. Criminal punishment, including fines, requires a higher standard of proof than a recovery of any sum of money in a civil action.

Think about this in light of the daily decisions that you make. Do you need to know something “beyond reasonable doubt” or by a “preponderance of the evidence”, or perhaps “maybe” works. It depends mostly on the magnitude of the consequences of the decision. Will I like a new ice cream flavor? “Maybe” might provide a sufficient burden of proof for you to try the new flavor. Others may have a higher standard; for instance, another person might believe that she probably will not enjoy the new flavor more than her established favorite (which is chocolate, of course). 

So how skeptically and conservatively (as a matter of judgment, not politics) we may choose to act becomes (to some extent) a function of the magnitude of the risk involved. Let’s take global climate change as an example. On one hand, NNT argues that we are poking Mother Nature with a stick and that we shouldn’t. ("Burden of evidence: The burden of evidence falls on those who disrupt the natural, or those who propose via positiva policies." Antifragile, 429.) The burden, because of the huge consequences if human conduct is upsetting the global climate structure must be upon those who want to maintain the status quo (a via positiva if there ever was one!); i.e., those who don't want to take active steps to counter any human-caused climate change. (Technically, we get into burden-shifting here. In other words, if the plaintiff provides some evidence of proposition A, then the defendant can offer evidence to rebut the proposition, and then the plaintiff must have enough evidence to respond to the defendant’s contrary contention. Plaintiff has the ultimate burden, but it switches back-and-forth during the course of the trial.) 

Blogger, self-experimenter, and UC Berkley-Tsinghua psychology professor Seth Roberts, on the other hand, is a climate change denier. (He will more likely call himself a skeptic and attempt some burden-shifting of his own, but given what I’ve read him to say about this, I think he belongs in the denier camp because of his displays of confirmation bias when considering this the issue.) Like others I’ve read recently, persons I otherwise can find quite persuasive and intelligent, like Roger Scruton and Deirdre McCloskey, suggest that we’re overreacting when we say that we need to change. They argue, I think, that there is no Black Swan (or White Swan, for that matter) of risk, that human-caused global climate change is all a mirage. Roberts and the others argue in effect: 

I know I might be the turkey and they say that there’s this Thanksgiving Day that might terminate my well-being with extreme prejudice, but how do I really know that this will come to pass? I know that I hear the farmer sharpening long, metal blades, talking about this upcoming holiday, and looking longingly at me, but really, this might all be something else. We shouldn’t take any action unless we know for sure that this Thanksgiving thing that you think is coming is proven by  . . . ." 

What, an actual occurrence? This strikes me as a bit late, but that seems to be their preferred position. 

I mention this, because I’ve made lawyerly arguments on Roberts’s blog when this comes up, but my points about burdens and standards of proof don’t elicit a response. I admit that I’m not sure about human-caused global climate change since I don’t have the credentials to independently verify and interpret the data (as I don’t for most of life’s biggest questions). But from what I do know is that if those arguing that we humans are causing global climate change and that there are things that we should be doing to alleviate its impact (it’s beyond stopping now, according to most), then we darned well ought to do all we reasonably can given the magnitude of the risks. (Refer back to the negligence calculus for a refresher on how to think about this.) The climate change deniers don’t seem to want to respond to this. The changes will cause big dislocations (to put it mildly) whether we choose to make changes ourselves or we choose to allow Mother Nature to make them for us. In other words, either our economy changes or Earth's climate changes. 

There are those who might argue that while we’re causing global climate change, we’ll innovate our way out of the pickle. “We’ve done it before and we can do it again and we can do it again.” Maybe. (See Thomas Homer-Dixon’s The Ingenuity Gap about the limits of our ability to innovate our way out of climate change.) However, t this strikes me as a very big gamble, and frankly, one I'd not like to bet upon (I've too much to lose).

All of this may seem quite discursive, but I hope that I’ve made a point that at least in some ways, “thinking like a lawyer” actual can prove useful, albeit demanding. (We don’t like to expend the energy that thinking requires of us, so we dodge it whenever we can). Thinking like a lawyer may not allow us to see Black Swans, but because of the turbulence that lots of everyday decisions in law and business inevitably create, so long as they are disbursed and have some degree of independence should allow a measure of antifragility to arise.

 
* While reviewing Antifragile to make some notes I did find the following, which qualifies the statement made above. I will be looking for any other references to the law as I continue my review: 

The same bottom-up effect applies to law. The Italian political and legal philosopher Bruno Leoni has argued in favor of the robustness of judge-based law (owing to its diversity) as compared to explicit and rigid codifications. True, the choice of a court could be a lottery—but it helps prevent large-scale mistakes. (90)

I argue my effort has been to further elucidate this passing remark.

Movie Reviews: Zero Dark Thirty and Oblivion

ZeroDark Thirty was okay. Just okay. It left one pondering a number of things that might have been explored, although by documentary might have been a better format; for instance, the efficacy (in terms of gaining information) of torture (as shown in the water-boarding scenes), the effect of torture on the torturers, how the widespread knowledge about the U.S. government use of torture affected U.S. standing and prestige in the world and particularly in the Islamic world (i.e., did it create more jihadists?). Of course, no Hollywood movie wants to go down that rabbit hole (not to mention the morality of torture). So, we have to say that while this film hints at such issues, it skirts them.

The film could have been made more interesting if the character played by Jessica Chastain had been interesting, but she was not. During the course of the film, from her initiation into “enhanced interrogation”, through her experience of a terrorist bomb, the death of her friend through lax security and naiveté, to a gun attack, and finally to stationing at Langley and participation in the bureaucratic politics, she doesn’t seem to change. (A tear in the final scene in the hollows of a C-130 doesn’t really reveal much.) Chastain’s character was to serve as the thread of the film, but she appears inert to the world around her, so how was her character (and by necessity) the film to prove interesting beyond the details of the attack and killing of OBL? Compare her character to Claire Dane’s character in Homeland (Season 1). While I wouldn’t want Dane’s character working for the CIA, she is an interesting character (well portrayed by Danes). Thus, in reality, give me Chastain’s rather bland character working for the CIA, but for drama, Danes’s Carrie Mathison proves by for more interesting vehicle for driving a story. 

Oblivion, the new Tom Cruise movie, is billed as homage to 1970’s SF, and within that modest goal, it works reasonably well. The plot hangs together pretty well. The post-apocalyptic landscape (complete with NYC landmarks) seems appropriate. Ecological disaster combined with alien invasion brings in two familiar motifs. Yeah, I get it. 

On the other hand, it doesn’t break new ground. IG, who, despite her prejudices against SF, attended, thought it a rip-off of Star Wars. Only in the 70’s SF look, I’d say. Mad Max might be a better comparison (although take a look at Morgan Freeman’s helmet . . . . hmmm, where have we seen that before?). Cruise is adequate to the role. He’s not yet too long of tooth to play this type of adventure hero role, but he’s getting close. So, on the whole, worth seeing if you enjoy SF and a nod back to some earlier flicks.

"The horor, the horror": A Review of Heart of Darkness by Joseph Conrad, performed by Kenneth Branagh

Anyone who knows me or reads this blog knows that I'm a big fan of audio books. Other than having a loved one read to you, it's it's the next best thing. Of course, some books are better suited to this mode of enjoyment than others; indeed, some books certainly shouldn't be read aloud. (And most shouldn't be read at all!) However, Joseph Conrad's The Heart of Darkness, performed in this instance by Kenneth Branagh, is perhaps best enjoyed in this reading performance. 

About Heart of Darkness:  I first read it for Dave Morrell's Modern Fiction class my senior year in college. He assigned it as the first book, indicating its status at the head of modern fiction. It was quite a read. Shortly after that time, the book acquired some popular fame because Francis Ford Coppola used it as the source text for his film about the Viet Nam war, Apocolypse Now. It's a tale of a man corrupted by what? His greed, his pride, his encounter with a alien land and culture? Well, perhaps all of these. It's a book that bears re-reading for many reasons. 

And as an audio book, Heart of Darkness is perfect for the medium because the book is a tale within a tale. A narrator begins the book as he starts a journey down the River Thames, and then his narrative becomes a recounting of the tale told by Marlow during this same journey. Marlow recounts his journey up a river in the Congo to eventually encounter the man (and the myth) of Kurtz. 

Branagh is an actor of the first order, and his performance of this tale does not disappoint. He delivers his performance with the characterization that brings the tale to life. I have to admit that I have a thing for reading voices that some have for singing voices; while some talk of Callas, Caruso, or Pavaroti as the great voices, I swoon at Geilgud, Olivier, Guinness, Evans (Dame Edith), Burton (ah, Burton!) and younger actors such as Branagh. (My prejudice for the Brits is evident here; not that American actors aren't quite good, but there unaccented voices (to me) can be rather flat out of specifically American contexts. Exceptions, of course, abound.)

In summary, a terrific performance of a terrific book.

My Latest Letter to Grassley re Guns & Political Corruption

Dear Senator Grassley,
I was deeply dismayed--and ashamed--to read that you voted to prevent consideration of any legislation to enact reasonable gun limitations. When 16 Republican senators voted to at least allow debate, I hoped that I would see your name there.

I am deeply disturbed at how anti-democratic and corrupt the U.S. Senate and our whole political system has become. However, I will not become cynical, but I will instead work to change the system and stop economic and ideological minorities from disabling our system, from gun control to climate change and on numerous other issues. You, of course, can continue safely in your seat for now, but I'd much rather that you stepped up to the reputation that you once held for independence and fair judgment. I will be watching your performance, as will a number of other Iowans. You can hope that they all toe the NRA line, but the times they are changin', and you should, too.

Thank you for your consideration,
Steve Greenleaf

Sad to say, but our system has become terribly corrupt. Money, of course, is an issue, but the scorched-earth policy of conservative Republicans (alas, are there any others?) has also caused huge problems, from shameless gerrymandering to the use of the filibuster. I've started following Lawrence Lessig's efforts at reform, but we need even more. Of course, the first thing for Iowans must be to elect Bruce Braley to take Tom Harkin's U.S. Senate seat, but replacing Grassley with someone mainstream is crucial, too. However, Iowa Democrats don't have an easy-choice candidate like Braley.

 

Scoring Points: A Review of Point Made: How to Write Like the Nation's Top Advocates by Russ Guberman

The point of Point Made can be easily summarized: good legal writing differs little from good writing in general, especially in the particulars of getting to the point with pith and clarity. Guberman shows and tells us this through myriad examples. Indeed, I think that one has to read this book in small bits, otherwise it suffers from the sins that it criticizes: too much quotation! However, as a "how-to" book with a lot of models, it can prime the brain for a better effort. Most legal writing is, in the memorable words of Gerry Spence, "word gravel". Younger lawyers, especially, seem to want to hide behind nondescript words and phrases, attempting to hide their advocacy. As these models demonstrate through Guberman's helpful classifications and his own pithy descriptions, legal writing needn't prove so awful. If you do write legal briefs (or memos), this book may not be the first I'd recommend (probably one of Bryan Garner's would gain that nod), but it would make the cut for helping develop these crucial skills. 

The Manchurian Soldier-Spy: A Review of Homeland, Season 1

N.B. Spoilers follow


Iowa Guru and I have now completed Season 1 of Homeland, a gift brought to us from the homeland (would it sell in India?) by the Panda (Inscrutable or Hungry, depending on circumstances). I can sum up my response by suggesting that I feel about Homeland the way that the viewers of Frankenstein's monster must have felt upon seeing it for the first time: an ugly, patchwork, but kind of fascinating. 

Literary critic Harold Bloom has written about the "Anxiety of Influence", how poets and other writers worry about the influence and implicit lack of creativity thereby imputed to them by the work of their predecessors. We now have a test, and this theory appears not to affect the writers of Homeland (based, according to the credits, on an Israeli book).  They seem to want to borrow from two sources, at times rather openly. One source is the great film, The Manchurian Candidate (please! I'm referring to the Frank Sinatra, Angela Landsbury, Lawrence Harvey classic; not the Meryl Steep--Denzel Washington mistake). The other source is John le Carre's Smiley books and the brilliant BBC productions of them. (Again, please, don't go for the Gary Oldman--Colin Firth film, which was close, but no cigar. The New Yorker's David Denby explains quite well the brilliance of the BBC production and the implicit limits of the film.) Great precedents both--but you have to choose! 

In fact, I doubt either precedent really works in the current climate. Jihadism and World Communism both have strong religious elements to them. But the Cold War is quite different from Jihadism, whether fought through the science fiction of total brainwashing (coming as it did out of the Korean War) or through the true-to-life betrayals by British elites buying into the Communist utopia. OBL's efforts to reestablish the caliphate had no mass appeal. Who, among any developed country (Muslim or non-Muslim), has a desire to see Jihadism succeed? Exceedingly few, I wager. While a large segment of the well-educated and the intelligensia supported Communism (openly or covertly--including some in high-ranking and prestigious government and academic institutions), Jihadism holds no such allure. So we have a problem with the basic premise: Brody's motivation. 

Over the course of time, Brody is defined as a convert to Islam (it's happened millions of times before, but to U.S. Marines captured and tortured by Jihadists?), and he's defined as an avenger for the killing of the boy Issa. Alas, I don't doubt that drone strikes and the killing of innocents are generating huge resentments against the U.S. and are a recruiting tool for Jihadists, but to a Marine serving in combat, does this seem so awful when his life and that of his buddies are at stake? Against this premise, we must consider Brody's love of country, family, friends, and self: all seem overridden, but not by someone brainwashed or turned into some kind of automoton. Of course, Brody suffers from PTSD, but then the writers, while demonstrating this, choose to ignore it. (Would we really ignore and fail to treat the extreme injury that Brody or any POW in this war must suffer? If so, shame on our government for its callousness and stupidity, but I hope that this is a scriptwriter's ignoring reality.) This guy, despite the torture, despite the yawning chasm of loyalties and motives, chooses to stick with his Jihadist goal of revenge killing. So Brody's a robot who acts crazy yet remains ready to fulfill his mission to the death--until he heeds the call from his daughter. (Under these circumstances, it's so easy to forgive the just-in-time call in the plot.) One of the two main characters doesn't work. How about Carrie? 

I hope that she has no real life model. Claire Danes does crazy really well, but I pray that we have no loose canons in the CIA or State like her. (Well, perhaps we do. See this NYT Mag article, but I hope no certifiables.) Her character is wrong in some many ways (I know, I know, except the big one, off and on), but she gets hard to take. No wonder Saul turns her in. 

And the vice-president. What a dick! How realistic is he? Such a dick . . . dick . . . Dick . . . Dick Chene . . . . Okay, his character works. 

Mandy Patinkin as Saul is very good. Indeed, the acting is excellent pretty much throughout the cast. 

Okay, will I watch Season 2? Would I look away from Frankenstein's monster? And also, we have reason to believe that there really is a mole in the C.I.A. Somebody is spilling beans that isn't Brody and never was Walker. The scriptwriters have withheld information, and  I expect that I'll have to tune in to see where it goes, this monster.