Sunday, May 13, 2012

Certainly. Though Perhaps Not.

I knew a guy, graduated at the top of his class at a prestigious law school.  Then went to med school and became a neurosurgeon.  He said the UCC drove him to medical school.
For the uninitiated, the UCC is the Uniform Commercial Code.  It's the set of statutes (that's the code part) governing commercial transactions (buying and selling widgets; delivering them on time or not; dealing with the bounced check; leases; secured loans, that kind of thing) that with minor variations have been adopted by all the states (hence uniform).  I know people who find the UCC fascinating and get erections [OK, maybe not] examining the interaction between, say, § 4-107 and § 8-203. [Disclaimer: I don't know shit about the UCC (though I did pass the class in law school) and neither know nor care whether those sections have any relationship to one another or could possibly interact.  This is not legal advice and I am not your lawyer.]
The Anglo-American Legal Tradition, as it's referred to, developed through the so-called "common law."  In the early days of the Anglo part, before the Anglos had any Americans to hyphenate, the law was not codified. There were laws, of course, but they developed by accretion rather than codification.  And judges figured out how to apply the written laws (and the vast store of unwritten ones.  They explained their reasoning which became precedent.  The Law (uppercase here) developed through analysis and reanalysis and reliance on precedent and, as I've explained before, argument from analogy.
It's slow, this legal evolution. And it proceeds by fits and starts. Nor is it certain that what evolves is better than what came before.  There's a reason that Law (uppercase again) is an essentially conservative profession, though it certainly doesn't follow that lawyers are essentially a conservative lot, though a great many, perhaps most, clearly are. 
These days, at least in the American part of the Anglo-hyphenate, codification is king.  The complaints of activist judges and justices (complaints which are often no more than bitching about rulings one does not like) are really complaints about the common law.* No need to figure it out, no need actually to consider, deem, or judge.  The Code is all.  Lifeless. Dull. A damn shame.
In fact, it doesn't work that way. Nothing does.
In reply to a recent comment on a post from early last year, I wrote this.
Irving Younger said it far better than I can:
"The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, 'I beseech you, in the bowels of Christ, think it possible that you may be mistaken.' Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers 'correct.' Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.

"And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised."
The correct answer to every legal question is "It depends." The correct answer to every significant question of philosophy and perspective is "Perhaps."**
Ferdinand von Schirach's uncle was the presiding judge of German court handling capital offenses. He was known as
a good judge, humane, an upright man with a sense of justice.
He told stories from those cases to Ferdinand who explains in "Guilt," the preface to his absolutely stunning collection of short stories Crime: Stories,
They always began with him saying: "Most things are complicated, and guilt always presents a bit of a problem."
"One day," Ferdinand writes of his uncle, 
he went into the woods, put the double-barreled shotgun in his mouth, and pulled the trigger.  He was wearing a black rollneck sweater; he'd hung his jacket on a branch. His head exploded. I saw the photos a long time later. He left a letter for his best friend, in which he wrote that he'd simply had enough. The letter began with the words "Most things are complicated, and guilt always presents a bit of a problem."
"And yet," as I said, Younger wrote,
the world's work must be done.
Ferdinand von Schirach is, himself, a prominent criminal defense lawyer in Germany and his stories, with their understanding and empathy - capacities very different from approval, though too many people don't understand that - reveal both his uncle's understanding and Younger's. The answers to all the relevant questions, he recognizes, is "It depends."
And they reveal, not surprisingly, a deep understanding of what we do.
Defendants and defense lawyers have a curious relationship. A lawyer doesn't always want to know what actually happened. This also has its roots in our code of criminal procedure: If defense counsel knows that his client has killed someone in Berlin, he may not ask for "defense witnesses" to take the stand who would say that the man had been in Munich that day. It's a tightrope walk. In other cases, the lawyer absolutely has to know the truth. Knowledge of the actual circumstances may be the tiny advantage that can protect his client from a guilty verdict. Whether the lawyer thinks his client is innocent is irrelevant. His task is to defend the accused, no more, no less.
That paragraph, from "Summertime," could have been written here were my prose were as elegant as von Shirach's (and if I thought of locations in terms of Berlin and Munich rather than, say, Toledo and Youngstown).
But understanding what we do isn't really the key to what's so powerful about von Schirach's stories. Nor is it the understanding of our clients. It is, instead, that understanding of ambiguity, of uncertainly, and how it infuses not merely our work but out sensibility.  For the criminal defense lawyer, as distinct from the lawyer who happens to do some criminal defense, looks at the world as a place of risk where it's possible to prevail but tricky.
All our lives we dance on a thin layer of ice; it's very cold underneath, and death is quick. The ice won't bear the weight of some people and they fall through. That's the moment that interests me. If we're lucky, it never happens to us and we keep dancing. If we're lucky.
You read von Schirach and come to recognize, as he does, that there are no easy answers ever and that motivation is never clear or unambiguous and that while there may be evil, it's finally impossible all the time accurately to recognize it. And you see that we all are tainted and that dispassion is a mask. To do our work, we glue it on firmly.
Occasionally, it frays around the edges.
I learned of von Schirach from Glen Steinhauer and Adam Liptak in the Times and then from Norm Pattis.  I'm grateful to all three.

* There are alternative legal systems where the decisions of the courts have no precedential value. Each is wholly independent of what came before. In a particularly extreme and frankly stupid version, that's the essence of a bill offered a couple of years ago by Iowa state representative Jason Schultz (motto: "I know notting"; ooops, that was Sgt Schultz from Hogan's Heroes).  (I wrote about the bill here.) It was referred to the judiciary committee where it was, I am happy to report, gracefully allowed to die.
** The quote is from Younger's untitled "Commentary" in the first issue ever of the Georgetown Journal of Legal Ethics (1987), p. 285.


  1. Your post prompted me to finally buy Crime, though I've meant to do so since reading Norm's posts on Schirach. I'm just now starting Cello. I had the impression from Norm's posts and the preface that these were nonfiction stories, but the copyright notice at the beginning, the book's location in the fiction section of the bookstore, and the details in the stories lead me to believe otherwise. Still, so far a very compelling read.

  2. Question for you: I've now finished the book. One of my favorite of the stories is "Summertime." However, I remain befuddled by the last paragraph, which suggests that the criminal defense attorney pulled a fast one on the prosecutor and the court with his "time zone change" argument. Admittedly I'm slower than the average bear but I'm still not seeing the flaw in the argument that got the defendant acquitted. I'd be grateful if you could clear this one up for me.