Under Analysis: Average Joe's cigar party thoughts

Mark Levison, The Levison Group

As most of us know, I am a deep thinker, constantly contemplating profound thoughts designed to pull mankind back from the perimeter of oblivion to a more comfortable place, like, Atlantis — or perhaps Miami Beach. It is therefore with some surprise that the Aspen Institute (a think tank for the good of mankind), did not even send me an e-vite to its current meeting of the Aspen Leaders Action Forum — let alone ask me to be a guest speaker!

We are informed on its website, that the Aspen Institute conducts “policy studies to foster leadership based on enduring values,” with a goal of determining what “makes good society.” Since this is a laudable endeavor, I’m not sure why its global leadership network, composed of “action-oriented leaders” makes me nervous.
Maybe it has something to do with a bunch of professor do-gooders and government bureaucrats hiking up mountain trails and sipping Chamomile tea.

Admittedly feeling dejected by the Institute’s inexplicable failure to include me in its “Society of Fellows Luncheon,” on the topic of “digital diplomacy,” I decided to convene my own assemblage of intellectual American leaders to contemplate the future of mankind. As luck would have it, my good friend, Circuit Judge Mark Neill (a voracious reader and philosopher who has never been reluctant to comment on societal issues or to offer solutions), was hosting his annual cigar-smoking, port-drinking, men-only get together last weekend, which seemed a perfect place for me to convene my own think tank. Obviously, stogies and Guinness provide the perfect catalyst to reflect upon what “makes good society,” and many of the “action oriented leaders” at Mark’s soiree were judges, real trial lawyers, or Irishmen, and some are all three. So, needless to say, there was lots of deep thought at this seminal meeting of legal minds which provided a perfect platform to advance mankind in the post-George Zimmerman trial era.

No sooner had I lit up my first Cuban — which had somehow snuck its way across the border — than I ran into Cal Polo, a silk stocking lawyer who was in my law school graduating class. Since law school, Cal has had the opportunity to defend many Fortune 500 companies against what he frequently characterizes as “unfounded claims,” even though he has lost a number of them. Still, the legal profession has been good to Cal. Polo now sits on several boards promoting the arts and civil rights, and prides himself on having a couple of Black friends. When asked about societal improvement, Calvin told me he believes the state of society is good as is, and that there is no reason to “change what’s not broken.”

As I was smoking a Cohiba with Cal, our law school buddy, plaintiff injury lawyer Dick Slickster, approached. After pointing out that Cal was still wearing no socks with his Weejuns, Slick began his usual tirade against tort reform. While still looking like a cross between Geraldo Rivera and a used car salesman, Slickster has earned a reputation as someone who is willing to take on a hard fight against powerful interests, and like Cal, has done well in the law. Dick told us that other than tort reform, the most pressing issue in his mind was that lawyer advertising needs to be more closely regulated. Dick claimed that the lawyers that advertise the most were the ones least likely to be effective in the courtroom or in obtaining good results for their clients. As Dick put it, “Most advertising lawyers are bottom-dwelling, scum-suckers that prey on the poor.” He then turned to Cal and said “Heck, Cal, would you ever dream of hiring one of those advertisers to handle an injury case for your family member?” Cal dutifully responded that no, of course, he would hire Dick Slickster. Sloshing his Budweiser on me and Cal, Dick suggested that any lawyer who advertised for injury work ought to have to declare whether he or she will do the work, whether the work will be referred to an entirely different law firm, and to list how many cases that lawyer has actually tried. According to Dick “[T]he good trial lawyers, the ones who know how to try a case, don’t need to advertise how tough they are.”

Leaving Dick and Cal to talk over the state of the law, and the girls they once knew, I went inside Judge Neill’s house and found two very old, retired federal judges: Harlon Meany and Justice Furtive Justice were sitting around a table sipping port and telling stories about Harry Truman. Furti, as his brethren call him, was a terror in his day. Lawyers were afraid of his ill temper and acerbic personality. The senior justice, Justice, said to me “[Y]ou know, Mark, we may have been overly regal in my day, but back then lawyers appeared in federal court to argue their motions, or even to request continuances, and we would get to talk to them.” “That’s right,” Harlon Meany chimed in. “These days, in Federal Court, everything is done electronically, without so much as a visit to the courthouse. Unless there is a trial, the most interaction today’s federal judges have with attorneys is on the phone, and often they don’t even do that.” I told Judge Meany I missed the days when I used to get chastised by him.

Leaving Harlon Meany and Furtive Justice, I wandered upstairs to find Judge Neill in his study, throwing back a Jameson’s and discussing the case he had just tried with our old friend, Joe. Joe is your average lawyer who tries low profile cases in state courts that aren’t terribly important to anybody — other than to his clients and to him. Joe has the skill to be able to talk to a jury of average people, and the ability to express his case in an understandable, straight forward way. Joe also doesn’t think that being a lawyer makes him any better (or any worse) than the average juror. Not flashy, Joe comes across as your average guy, but he does a little bit better than average when it comes to trial victories and getting along with his fellow lawyers. When I asked Joe what contribution he had to offer to my policy studies group, he said, “I would ban all telephones from the courtroom.” Joe noted, “When I’m in a courtroom with a bunch of lawyers nowadays, whether they are waiting to see the judge or listening to oral arguments, they are all talking on their phones or texting. It used to be the courtroom was a place where lawyers got together and talked about their cases or the pennant race.” Joe added, “[I]t’s bad enough that when lawyers are in their offices they are e-mailing each other rather than picking up the phone to talk, but now we don’t even talk when we’re face to face.” Joe’s concern made sense to me, so, I asked him the question I felt certain they were discussing in Aspen. “Joe, what makes a society good?” Joe blew a couple of smoke rings, looked up, then looked me straight in the eye, and said, “[I]t’s simple, and we don’t need a bunch of professors to figure it out. We need to let everybody live their lives the way they want to, as long as they aren’t harming anyone else!” “In other words,” Joe went on, “no prejudice against anybody based upon what they look like or how they think. Beyond that, we need good air to breathe, clean water to drink, support from our families, and work to do, so we have money to buy food, and,” Joe added, “I’d throw in a fair judicial system when conflicts arise.” I doubt they did any better in Aspen.

Just then, I received a call from my wife. She said, “So, how is the Institute of Morons going?” I told her that if we only had enough cigars for a couple more days we could put the world into perfect order. She reminded me that she is skeptical of philosophical talk from intellectuals — including lawyers — and that it’s actions that count. Then, she suggested that the most important actions for me to take were to drive safely, buy her a pack of cigarettes on the way home, and to remember not to criticize her for smoking them.

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Under Analysis is a nationally syndicated column. Mark Levison is a member of the law firm Lashly & Baer. You can reach the Levison Group in care of this paper or by e-mail at comments@levisongroup.com.
© 2013 Under Analysis L.L.C.

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