The 80% Rule to Avoid Letting Others Get Under Your Skin

Bottom line, we all can be happier if we disregard 80% of what anyone else tells us. If you stop and consider carefully the words that typically come your way from others, most of them consist merely of argument, bias, preferences, or ungrounded (often unsolicited) recommendations and conclusions that some other person feels compelled to send your way. Lawyers, in particular, have to listen to a lot of argumentative, biased blather from opposing parties, etc.

Related to the above point, as I was driving to my office today I thought about how far too many individuals (e.g., assume Person A) allow others (Person B) to hook them and get under their skin too easily, with a feeling that Person A, thereafter, has an obligation to respond to or convince Person B as to why Person B is wrong, etc. On the other hand, and under the 80% rule I stated above, my view is that Person A is wasting otherwise valuable time that does not need to be wasted on Person B, or on responding to about 80% of what Person B said. Just simply let about 80% of what you hear go in one ear and out the other.

I frequently remind my girls about the above 80% point. I also periodically suggest that they consider (i) not accepting others’ framing of a perspective for any situation; but, rather for them (my girls) to step back and first take a moment to consider their own framing of the situation; (ii) then, next, listen to what the other person says to determine whether to accept any part of what that other person is saying that might be accurate, instructive or helpful; or, in some cases, simply disregard entirely all of what the other person is saying. In all cases, I suggest one should be civil, kind, and empathic. Just don’t buy into all that someone else says.

And, finally, readers I hope you apply these same recommendations to this blog post. I understand fully that not everyone will, or has to, agree with my comments, or even 80% of my commentary.

The Misdirected Framing of a Defense Argument in the Arbery Case

The blog post points ultimately below to my continuing, strong criticism of Gregory McMichael, Travis McMichael, and William Bryan’s inevitable defensive attempts to turn the table on Ahmaud Arbery and make Arbery out as the aggressor, against whom Travis McMichael was the victim who had to defend himself by fatally shooting Arbery three times with a 12-gauge shotgun.

I am not going to repeat details of this McMichael / Bryan killing here that are more than abundantly available in the media and on the web. The point I wish to make is to urge readers not to allow themselves to get pulled into this “Arbery-aggressor” argument. In my opinion, it is a misdirected framing of an argument the defense attorneys hope they can spin as a winning theme for the McMichaels and Bryan.

In short, and based on my review of the recent Arbery probable cause court hearing videos, the McMichaels / Bryan attorneys are (not a surprise) beginning to advance their self-defense argument, as follows: That is, just moments before Arbery’s death, Arbery “squared up” in a fighting stance and attacked Travis McMichael, who was standing by the side of his pickup truck brandishing a 12-gauge shotgun. Travis McMichael felt he was in threat of bodily harm and shot Arbery in self-defense. Travis McMichael’s attorney refers specifically to this defensive argument in his Closing Arguments during the recent probable cause hearing. Click here for a YouTube video of the Closing Arguments (listen, in particular, to the first 60 seconds).

Don’t fall for this misdirected framing of a defense by the McMichaels / Bryan attorneys. This defense is deja vu of the argument that enabled George Zimmerman in 2012 to walk free from his killing of Trayvon Martin.

I strongly criticized the 2012 Zimmerman acquittal because, in my opinion, when Zimmerman moved forward in order to hunt for Martin as part of Zimmerman’s attempt to investigate and find Martin, etc., all bets should have ended at that point for any “self-defense” or “stand-your-ground” argument for Zimmerman. In my view, when Zimmerman took it upon himself to make a move toward Martin to find him, etc., Zimmerman became the aggressor with no basis thereafter for a self-defense or stand-your-ground argument. Below is a simple example in line with my argument that Zimmerman became the aggressor.

Assume my wife and I are walking down the sidewalk at night. Some guy walks past my wife and me and appears purposely to bump into me with such force that I fall down on the ground. The guy keeps walking away from us. But, I reverse my direction, brandish my handgun, and chase down the guy; he “squares up” and moves in my direction aggressively to hit me; I shoot and kill him with my gun.

Now, in this example, one might argue this guy was the aggressor when he bumped into me, or when he “squared up” toward me, etc. However, I am the first aggressor relevant to my use of the gun. I am, therefore, the aggressor with the gun. My killing of the guy, in this example, likely would not have occurred (i) as he was walking away from my wife and me in the opposite direction, and (ii) I intentionally changed my direction and went after the guy while brandishing (and ultimately using) my gun.

I believe the example above with my wife and me is sufficient to convey my point contrary to the McMichaels / Bryan defensive framing of the issue. The McMichaels / Bryan were the first (and only) aggressors with the guns. It is entirely unreasonable to try and cast Arbery as the aggressor for purposes of the underpinning of the defense lawyers’ self-defense argument.

Finally, as a broader notion, assume you have a 25-year old son. Your son has been chased for approximately four minutes by three grown men using two vehicles. Your son becomes essentially trapped by the three men, and is likely so exhausted he can no longer run. One of the men is out of the truck brandishing a shotgun at your son.

As yourself these two questions: (i) what in that moment do you believe your son would have done?, and (ii) what in that moment should your son have done? In answering the second question, and now that we know Arbery is dead, can you realistically — with full conviction not affected by hindsight — state that in that moment your son should have simply put his hands up and surrendered?

As an aside, I certainly believe your son should put up his hands in any situation where the police are the pursuers. But, key to the Arbery case is that the McMichaels and Bryan were not police, were not dressed in law enforcement uniforms, were chasing Arbery in pick-up trucks; and were brandishing weapons; they, likely from Arbery’s perspective, appearing to be taking no survivors in their aggressive, exhaustive, two-vehicle corralling of him. Click here for my previous Arbery post about this vehicle corralling.

My ending point: Your framework for how you view this Arbery case should start at a point well before the defense lawyers’ efforts to have you too narrowly see this case only as a self-defense “squaring up” moment before Arbery’s death.

Ahmaud Arbery’s Death: The Tragic Four-Minute “Citizens Arrest” Chase (revised 5.26.20)

This post centers on Gregory McMichael, Travis McMichael, and William Bryan’s apparent four-minute vehicle chase in Georgia that ended in the tragic death of Ahmaud Arbery; and, in my opinion, that fails to any extent to fall within Georgia’s “citizens arrest” statute. I will soon write a second blog post with more details about the inapplicability of this citizens arrest statute.

My underpinning for today’s blog post is a recent May 16, 2020 video in the web version of the New York Times, captioned “Ahmaud Arbery’s Final Minutes: What Videos and 911 Calls Show”. Click here for a link to this NYT video. This video is a reconstruction of the 12 minutes prior to Arbery’s death, based on the construction site security camera, cell phone information, and 911 call data.

Below are the points I wish to make with this blog post.

One. This NYT video shows, quite shockingly and extremely painfully, how Ahmaud Arbery apparently was chased by one vehicle driven by Gregory and Travis McMichael, and by a second vehicle driven by William Bryan, before being trapped by all three men and ending with Arbery’s tragic death.

More specifically, the McMichaels and Bryan appear — in this NYT video reconstruction for a period of approximately four minutes — to have used their two vehicles to chase and trap Arbery. Arbery — running on foot from the two vehicles — apparently changed his direction twice in unsuccessfully avoiding getting overtaken and trapped. This apparent four-minute vehicle chase is not information I was aware of until seeing this NYT video.

What also jumped out to me powerfully from this video is that the McMichaels and Bryan appear to have twice turned their vehicles around along the roadway in their ongoing four-minute trapping of Arbery. The first of two reversals by the McMichaels is when Gregory McMichael apparently jumped from his truck cab into the bed of his truck and began wielding a .357 handgun as the chase for Arbery continued. In this NYT video William Bryan was apparently the first in this chase to reverse the direction of his vehicle as he continued to pursue Arbery, followed with a similar reversal by the McMichaels.

Two. My second point here is my own subjective perspective. It stems from my having lived in Atlanta my entire life. And, my observation in Georgia of the still-present deep level of racial prejudice, especially by many in the age 60+ range. And, no better than the overt racial views I observed in Georgia as a child during the 1960s is what I perceive at present to be a quiet, unspoken, “wink-wink”, still-deeply-seeded racial prejudice in Georgia. These are individuals who either are too cowardly to be candid and forthright in acknowledging their racial prejudice, or who have no interest in facing squarely a need to stop and challenge themselves about why and whether they are willing to contemplate a more-evolved perspective.

Three. This last point goes to the appearance of recent Facebook posts and web references in which individuals are placing the criticism and blame of this tragic killing on Ahmaud Arbery. To the contrary, I consider blame directed at Arbery to be nothing more than a premature, knee-jerk attempt to support a preconceived, racially-biased conclusion against Arbery.

So, please take a moment to ponder what your innermost race-factor reactions are to this Arbery killing, especially the apparent four-minute chase factor in the above NYT video. Ask yourself if you are jumping immediately to conclusions against Arbery, such as “Arbery had tattoos and looked like someone who is a criminal”; “Arbery had an afro [or dreads, etc.]”; “Why was Arbery running if he didn’t do anything wrong?”; “Arbery should not have walked into that house construction site”; or, “Why did Arbery resist if he was not doing anything wrong?”, etc. Or, is your reaction a passive acceptance simply that “This is what happens when a black man tries to run. Arbery should not have run.”

My forthcoming blog post will show, quite persuasively from my view as a lawyer, zero support for the McMichaels and Bryan being able to rely on the Georgia “citizens arrest” statute as a winning defense for their actions. These three men possibly may have thought they were properly making a citizens arrest, but whatever they thought likely was powerfully, and tragically, motivated by their own preconceived and prejudicial attitudes and beliefs about blacks, especially a black man running.

Revision today 5.26.20 — This NYC Central Park incident just in today illustrates very well the embedded racial bias we as a society collectively need to acknowledge and address, directly and with a receptive spirit. Click here for the update.

Here is the 5.12.20 Trump tax returns U.S. Supreme Court oral argument link

I listened yesterday to the lawyers ‘ recent May 12, 2020 oral argument before the U.S. Supreme Court in the Congressional House’s subpoena attempts to obtain Trump’s tax returns and various other business records. The subpoenas were not served directly on Trump himself. The subpoenas are for tax returns and business records held by certain other third-parties for time periods prior to Trump’s election as president.  This subpoena question is an extremely novel, and complex, separation of powers question.

Click here for the link to the U.S. Supreme Court webpage that includes the audio of the oral argument, as well as a pdf transcript of the argument.

I certainly have some thoughts from my lawyer perspective that touch on both sides of this subpoena issue.  But, more important than my own view, is this opportunity for you to listen to the oral arguments yourself.  Let me just say that the issue is not merely a simple, conclusory “What’s the problem? Just force them to turn over the records”.  In my view, whatever conclusion the Supreme Court makes in response to this case will be constitutionally monumental.  Your grandchildren will, no doubt, seriously study this case in their law school constitutional law classes.

A Quarantine Pastime: Listen to Georgia Court of Appeals Oral Arguments (on the Internet)

The title to this blog post is probably not stopping many readers quickly in their tracks to see what it is about.  I understand.  The blog title also is likely not edge-of-seat dinner party fodder.

Nonetheless, I generally each week read the current Georgia appeals court opinions so that I can keep up with the broad range of legal issues, changes, developments, etc. Today, among the recent opinions I read, is the March 11, 2020 opinion in Doe v. State. Click here for a copy of the Court of Appeals opinion. Click here for the website link for the related appeals court oral argument for Doe v. State.

Briefly, the above Doe v. State does not fall within my area of law practice;  but, deals with an individual who was acquitted of certain felony criminal charges and who sought to have his record expunged under the procedures of O.C.G.A. Section 35-3-37.  Here, however, is one general take-away point from this particular case. A person’s arrest record (even if not ultimately convicted) remains a public record unless the person can sucessfully get his or her record removed under these procedures.  I chose this Doe v. State for this blog post simply because it is the opinion I last read this morning among the recent opinions from the past week.  It is essentially my random selection for purposes of writing this blog post.

My suggestion, however, especially during our long, home-bound quarantine days, is that readers might find very interesting the Georgia Court of Appeals website with the audio-video recordings of the appeals court oral arguments.  This is where the lawyers stand before the Georgia Court of Appeals judges (typically three judges) and present an oral (verbal) argument to try and convince the appeals judges to see the case their way.  The judges often prod the lawyer’s argument with point-on questions, comments, requests for clarification, etc.

Very briefly as background information, litigation cases can sometimes “go up” on appeal with the appeals court having the power generally to determine whether to affirm the lower court’s decision of the case (typically the trial court); to reverse the lower court; and/or to remand the case back to the trial court. Keep also in mind when a matter goes up on appeal that the lawyers cannot for the appeal add any additional evidence, testimony, documents. There are various levels of state and federal appeals courts (e.g., Georgia Supreme Court; The Federal Court of Appeals for the Eleventh Circuit;  the U.S. Supreme Court, etc.).

The purpose of this blog post is not to elaborate further on the procedure, structure, and design of appeals courts.  But I do point out that any case on appeal is as good as it can get at that point of the appeal, depending on how well the trial court lawyers put on, and preserved, the appropriate evidence and how well they procedurally — during the trial — preserved the disputed legal questions for the appeal (This all gets into the procedural details I purposely do not include in this blog post).

Now, back to using the above Doe v. State as an example. I find virtually all appeals arguments very compelling and instructive for the following three primary reasons:

One. The Georgia Court of Appeals allows only 15-minutes of oral argument for the lawyers who represent each party in the case. This is each lawyer’s opportunity to try and hone down — convincingly — the essence of his or her 15-minute appellate argument in a focused, understandable, concise, and persuasive manner.  Keep in mind the lawyers have already previously filed written summaries of their appeals arguments (called Briefs).

This limited 15-minute oral argument means, from my liking, that the 15-minute argument compels the lawyer to get immediately to the heart of the matter without blustering, grandstanding, sidestepping, and purposeful obfuscation. By contrast, these run-of-the-mouth factors are what we lawyers (and clients) too often hear from opposing lawyers in other contexts (phone calls, discussions, trial court hearings, mediation, etc.).  I greatly enjoy the relief of brevity for these 15-minute appellate arguments.

Two.  The boiled-down directness of the lawyers’ arguments, and most often with to-the-point prodding and questions from the appeals judges, give us listeners an audible pathway directly to the heart of the issues, along with the crux of what the appeals judges are considering from their perspective. In my view, listening to these oral arguments is better than CLE (continuing legal education) in that I get can grasp and consider the essence of the issues in 30-minutes or less.  And, in a real-world context.

Three.  The appeals process (in any appeals case) often highlights the deficiencies in how the lawyers conducted the lower-court trial, particularly the existence of insufficient evidence for consideration on appeal, etc. Every appeals court opinion (and the oral arguments) provides great learning material.

Go back above and click the oral argument link.  Will cost you only 30 minutes of time.

The Boding Danger of the Trump Impeachment Process

This blog post is merely to provide my key thoughts about this Trump impeachment process from my lawyer perspective.  I also realize my perspective is only one of millions.  It realistically has no more weight among all other views than a grain of sand.  But, nonetheless, I voice my comments not for purposes of stating my position one way or the other about what I believe should have been, or will be, the conclusion of this present impeachment effort.

Rather, I express my great concern about the persistent chipping away — for the past 40 years or so — of the sanctity of our three-branch system of government.  Our system appears to move each year toward a myopic vision of a simple-minded, one-party political system of government, blind to the three-branch element (regardless of which party).

And, I do not use the word “sanctity” in any sense of religion, morality, or political party; but, more importantly, from my great and deep respect for the ultimate importance and inviolability of our three-branch system.  In my view, the longstanding success and freedoms we have in the United States rest on the three-branch system of checks and balances. This, in my opinion, is the primary reason our country has succeeded during its long test of time.

Here are my key comments:

(1)  The House blundered, tainted a key underpinning of their procedural process, and by doing so failed to respect our three-branch system of government by not seeking judicial review of (or by not issuing) House subpoenas.  A fundamental element of our great freedom in the U.S. is the ability to obtain judicial review when we are subpoenaed and assert grounds for objection to the subpoena or to the scope of the subpoena. The government (including the House) also has the ability to obtain judicial review and assistance in determining the necessity and scope of a subpoena.  For you historical legal readers, the first U.S. Supreme Court opinion addressing House subpoenas was in 1880, in Kilbourn v. Thompson, 103 U.S. 168 (1880).  Click here for a copy.

(2)   President Trump’s blanket snubbing of the entire process of subpoenas and witnesses is itself another serious failure to respect the sanctity of our three-branch system of government.

I wrote a blog post a few months ago about the Richard Nixon subpoena situation. Search “Nixon” in my blog search above. I repeat, now again, essentially what I said in my Nixon post. That is, the following question my constitutional law professor at Emory Law School (in Atlanta) posed to our first-year law class many years ago, which I have never forgotten: “If President Nixon had refused to comply with his subpoena, we would have experienced an extremely serious (and still-unanswered) constitutional crisis that would have substantially stress-tested our three-branch system of government. And, possibly the system would have failed. The crisis would have centered on “Who would, or can, force President Nixon to comply with his subpoena?”

Keep in mind the Nixon subpoena had been issued by the Department of Justice, a part of the executive branch (not issued by the House).  Thus, if Nixon, as head of the executive branch, opted not to have his own executive branch enforce his subpoena, who would have acted to enforce it?  Our Emory constitutional law professor posed the possibility of a military coup, or military tanks rolling up to the front of the White House, to step in and take over the enforcement effort, etc.

(3)   I, candidly, have always been concerned the U.S. would not have withstood the above Nixon constitutional crisis if it had been pushed to an ultimate limit, nor recover minimally unscathed. This is the reason that particular law school class discussion is burned deeply into my consciousness. I truly believe the above Nixon crisis could have effectively dismantled, or substantially damaged, the longstanding balance of our three-branch system of government. One political party would have won the battle, but we all would have lost the war.  A crucial question we each should consider at every juncture of our own respective political moves and attacks is whether we are helping to sustain, or erode, our three-branch system of checks and balances.

(4}   We each, therefore, should also ponder seriously how all facets and participants leading up to this current Trump crisis have, or are, affecting this balance.  And, we need to rethink everyone’s relative contribution to this situation.  As an aside, I  believe Nixon understood his tremendous constitutional crisis for our country, leading ultimately to his voluntary compliance with the subpoena, and ultimately his resignation.

(5)   Back to my statement above about the success of the U.S. being based on the three-branch system of government. In my view, I do not care where one places himself or herself on a religious, moral, or political spectrum. That is one’s gift of liberty, and personal prerogative. However, the substitution of a controlling element of religion, morality, or politics, etc., as a decisive or tipping-point factor sidestepping our three-branch system of government places far too much power with, and simply by the whims of, those asserting — at any given time — their majority religious, moral, or political views.  Keep in mind, everyone once knew the earth was flat.

We begin 2020; “the strings are all in one another’s way . . .”

As we start the new year 2020, I begin with, what I consider is, a great passage from William Faulkner’s novel Absalom. Absalom!   I grew up with my father being an avid reader, including his great liking of William Faulkner.   My late father, a lawyer, would say that Faulkner’s novels were very appealing as Faulkner never shied away from acknowledging the negative underbelly of life, but at the same time never included these elements with a sense of judgment or preaching. These negative elements are depicted as an inevitable, and universal, component of our lives.

On the flip side, my father also often reiterated that this non-judgment does not mean that we simply become a passive doormat and let the world’s negative elements run us over.  No.  We should deal, as necessary, head-on with these elements using whatever response, including reasonable force, is required.

Now, after I have been lawyering for many years, where I believe we tend to veer off this non-judgmental path is when we fret and fume about the principle of a negative element. If not held in check, we focus more on being upset, and wasting valuable time, pondering and ruminating in principle about the “why”, “how dare they”. “why does it have to be this way”, “why do we have evil”, etc. Instead, I believe we are better off trying to concentrate only on actually addressing these situations directly and head on without the wasted expenditure of unnecessary fretting and rumination. This is simply my offer of food for thought as we begin 2020.

Below is the Faulkner excerpt that, in my opinion, plays directly into the suggestion I set forth above for all of us (including for me).  I believe Faulkner’s commentary is a great, realistic summary of life that can help us not fret and fume in wishing it were otherwise:

You get born and you try this and you dont know why only you keep on trying it and you are born at the same time with a lot of other people, all mixed up with them, like trying to, having to, move your arms and legs with strings only the same strings are hitched to all the other arms and legs and the others all trying and they dont know why either except that the strings are all in one another’s way like five or six people all trying to make a rug on the same loom only each one wants to weave his own pattern into the rug; and it cant matter, you know that, or the Ones that set up the loom would have arranged things a little better, and yet it must matter because you keep on trying or having to keep on trying and then all of a sudden it’s all over and all you have left is a block of stone with scratches on it provided there was someone to remember to have the marble scratched and set up or had time to, and it rains on it and the sun shines on it and after a while they dont even remember the name and what the scratches were trying to tell, and it doesn’t matter.

William Faulkner, from Absalom. Absalom! [Vintage International Edition 1990]

Platitudes are Most Often Useless (and Ineffective); and Dr. Martin Luther King Jr.’s Recently-Discovered December 7, 1964 Speech

I often tell clients I did not become a lawyer to “help” people.  In my view, “help” is nothing more than a conclusory term with no common meaning sufficient to guide a client or his or her lawyer through difficult disputes (and related litigation).  It is also simply  a relative word that I assume each lawyer in a dispute can easily voice as to how he or she is “helping”  their own client. Using the word “help” more accurately means a lawyer is “fighting” for his or her client’s position.

As to these kinds of legal fights, the passion and joy I get from lawyering is helping level the playing field when another party unreasonably overreaches.  The overreaching can occur for a myriad of reasons, including, as examples in many cases, an elevated sense of entitlement, an assumed superior right, or closed-minded ignorance.  As I continually assess the progress of my litigation cases, I not only have to be well-versed on the facts and law of the case, but also attuned to assessing motivations of an opposing party; again, especially when I conclude entitled overreaching is at play.

Now, what do platitudes have to do with the above paragraph, such as “be friendly”, “be a team player”, “be kind”, “be considerate of others”, “turn the other cheek”, “pull yourself up by your own bootstraps”, “god helps he who helps himself”, etc.?  My sense is these platitudes originated from those already sitting in the upper winning or dominant position.  Platitudes are merely armchair, conclusory statements that assert nothing more than their own conclusion or result.  For example, merely repeating a platitude fails to consider why someone might not be able to “pull” himself up from his own bootstraps, or why a person might need to know what to do after once turning the cheek (e.g., what does he or she do next?). Platitudes in most cases are simply diversionary icons that do nothing more than suggest their own non-substantive meaning.

I could write pages about this platitude topic in its many everyday forms and effect. But, I will not bore the reader.  However, last night I stumbled across an extremely compelling example of a speech that effectively goes well beyond simple, conclusory platitudes.  This is a December 7, 1964 speech in London by Dr. Martin Luther King Jr. that was discovered only recently by Pacifica Radio Archives.  Dr. King gave this speech before travelling shortly thereafter to Oslo, Norway to receive his Nobel Peace Prize.   Click here for his speech.

I urge readers to listen to this speech in its entirety, and keep in mind one can still substitute — even today — in the context of Dr. King’s powerful speech all marginalized groups (who are persistently subject to entitlement-minded overreaching by others). This speech, in my opinion, is an extremely effective argument against the above simple use of platitudes.  It also speaks to leveling the playing field, right up my alley.

At a minimum, listen to this speech beginning at 37:20 where Dr. King’s commentary about non-violence illustrates superbly the difference between someone merely voicing  “non-violence” as a feel-good platitude, compared to Dr. King’s powerful and substantive expression of how one actually can practice non-violence.


Don’t Accept 80% of What Anyone Tells You

The title of this blog post is purposely a teaser, hopefully getting you to take a moment to read it. But, on a serious note, this title goes to a theme I believe we all should follow; a theme I also express consistently to my daughters to help them chart their way in life more successfully, more powerfully, with greater happiness, and with fewer hurdles and stumbling blocks created by others.

I express these same points often to clients as a preventive recommendation in an effort to help them avoid problems and issues (legal and non-legal) that otherwise occur from merely responding to life with a “go along to get along” attitude. I also refer further below to a related book I just finished yesterday about the Vietnam war: “The Things They Carried” (1990), by Tim O-Brien.

The key point is that we all should not simply, and without question, accept 80 percent of what anyone tells us.  Yes, from anyone. My reasoning is not that others are necessarily dishonest or purposely trying to mislead us with misinformation. But, rather, that we all communicate with inevitable limited information, bias, partiality, dogma, etc. We most often communicate only within the limited sphere of our own experience. This is normal. We also shade our communications frequently in a way to try and trigger a certain feeling in the listener (or reader). It is extremely difficult, and ineffective, to communicate only with unbiased, objective, neutral facts. This might sound possible in theory, but, in my view, it is fundamentally unrealistic.

Therefore, resting on the notion that there can be no (or very little) unbiased, objectively neutral discourse, we should discount most of what we hear from others, until we thereafter run it through our own framework. In other words, stop and view the information through your own perspective before simply accepting the information someone else places before you. You will be much happier in life, and (because this is a legal blog) likely end up with fewer unintended, or blindsided, problems that require you to seek costly legal counsel.

Now, my last point. Feelings? Seriously? Why do I refer to our wanting to convey a certain feeling to others in the context of our communications? What I am trying to say is that our communications are much more effective if we can trigger a desired feeling in the context of what we are trying to communicate. Whether we are consciously aware of it, we are bombarded every day with communications, arguments, platitudes, dogma, advertising, all designed to influence how we feel about the information.

This idea of purposely triggering feelings really jumped out to me in the book The Things They Carried, by Tim O’Brien. Click here for more info about this book. It is about O’Brien’s late-1960s infantry stint in Vietnam. It is one of the most powerful Vietnam books I have ever read. O’Brien discusses along the way in this book how he purposely augments and fictionally shades certain of his war stories in order best to convey the feeling he trying to express to the reader.

In other words, without O’Brien augmenting his war stories with these shadings, a reader might become aware only of the objective, factual nature of the war event, but will not feel the experience. I have never prior to reading The Things They Carried had anyone better than O’Brien express this “feeling” distinction about the art of writing. I also have never felt a war experience from any book more powerfully than from The Things They Carried. I highly recommend this book for anyone who is interested in further refining the art of writing, or who simply wants to envision and feel what it was like to have fought in the Vietnam war.

Finally, and as to my legal work, I am not suggesting we shade or fictionalize facts when we are required to present those facts ethically, truthfully, and honestly. But, we need to be aware (and be on alert) that even a recitation of ostensibly truthful facts can be presented in a manner (with inflection, rhythm, adjectives, related metaphors, etc.) substantially coloring how one might feel or react to those facts.

Really? Gone with the Wind


I am working with a lawyer who grew up, and lives, in California, virtually her entire life in LA, and who attended undergrad at UC Berkeley as an English literature major.  She has never lived in the South. Over lunch recently in LA we were talking about our favorite books, etc.  To my great surprise, she said Gone with the Wind (by Margaret Mitchell) is one of the books she most frequently has re-read over the years.

I was shocked.  I asked “why”?  I told her I had never read it, and candidly never had an interest in reading it.  I thought Gone with the Wind was just a simple, overly-long, southern romantic novel. To the contrary, her response was that Gone with the Wind conveys more powerfully than most any other book she has read the difference between those who survive and those who do not survive, and the dimensions of that distinction.

I am now one-third into reading Gone with the Wind, and admit I was greatly mistaken, narrow-minded, and uninformed about this brilliant Margaret Mitchell novel.

This blog is merely to convey my recent reaction to one extremely powerful passage from Gone with the Wind, as I state further below. [Mitchell was a phenomenal writer;  there are dozens of other such passages that struck me very powerfully.]

But, let me first clear the air in stating Gone with the Wind very effectively conveys the broader, tragic, and costly narrow-minded ignorance of the South in its Civil War opposition to the abolition of slavery.  Also, Gone with the Wind is the only portrayal of the horror of war that took place in the geographic area I know so well, Atlanta. No doubt, wars that have taken place elsewhere are no less tragic, but reading Gone with the Wind as it took place in Atlanta, with Americans killing other Americans, gives me a powerfully vicarious extra-dimension, that I have never previously experienced.

Now my primary blog point. And, this is a spoiler if you plan for the first time to read Gone with the Wind.  The excerpt below from Gone with the Wind is after Scarlett O’Hara returns to her home “Tara”, in Jonesboro, Georgia, after General Sherman overtook Atlanta. She is 19.  Her mother Ellen died the day before Scarlett makes her arduous journey back from Atlanta to Tara.  I purposely, so as not to expand this spoiler, do not detail what events lead Scarlett up to her following internal dialogue, as she pondered her horrific, changed world:

Nothing her mother [Ellen] had taught her [Scarlett] was of any value whatsoever now and Scarlett’s heart was sore and puzzled. It did not occur to her that Ellen could not have foreseen the collapse of the civilization in which she raised her daughters, could not have anticipated the disappearing of the places in society for which she trained them so well. It did not occur to her that Ellen had looked down a vista of placid future years, all like the uneventful years of her own life, when she had taught her to be gentle and gracious, honorable and kind, modest and truthful. Life treated women well when they had learned those lessons, said Ellen. Scarlett thought in despair: “Nothing, no, nothing, she taught me is of any help to me! What good will kindness do me now? What value is gentleness? Better that I’d learned to plow .   .   .    .

Oh, Mother, you were wrong!” She did not stop to think that Ellen’s ordered world was gone and a brutal world had taken its place, a world wherein every standard, every value had changed. She only saw, or thought she saw, that her mother had been wrong, and she changed swiftly to meet this new world for which she was not prepared.

Excerpt from Gone with the Wind (Chapter 25) [I added the bolding].

So, why do I like the above excerpt enough to include it in this blog post? I will not bore you with a long-winded explanation. But, I state two reasons.  One, in my view Scarlett arrives at the correct realization that the world is not simply some nice, loving, everyone-should-be-good, kumbaya platitude. This platitude in my view, generally from parents, schools, religious organizations, those already holding the upper hand, is too frequently and easily expressed, with a silent denial of the other side of life (which Scarlett is forced to observe and accept). As a father of daughters, I also believe girls — to their longer-term detriment — are expected to buy-into this little nice, neat platitude as an unfortunate goal so as to “go-along to get-along”.

Two.  This point goes to why I enjoy being a lawyer. With a realistic acknowledgment that the world is not simply made up of positive, mutually loving, lack-of-self-interest elements, my primary goal is to help level the playing field for my clients as to the other negative side of the coin, especially when the other party greatly overextends its own self-interest, power, advantage, etc.  Also, from a preventive perspective, I find many clients end up with costly litigation or other legal problems simply because they signed documents, or agreed to inequitable terms or circumstances, or failed to object to situations, on the notion that they did not want the other side to get mad, or they assumed the other side was being fair and equitable, etc.

Finally, the more-balanced conclusion Scarlett expresses above, in my view, will add to her longer-term happiness and response to life, even though she has to dismiss the fairy-tale notion of a kumbaya world. A more realistic, and balanced, acceptance of both the good and bad elements of life is akin to the comfort of knowing you have on your seatbelt.  Realistically take into account the worst, but hope for the best.