Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Wednesday, July 26, 2006

A Major Annoucement, Part VI.

Testing the Authenticity of Jesus’s “I Am” Sayings in John

As mentioned in Ben Witherington III’s The Jesus Quest: The Third Search for the Jew of Nazareth[1], the Jesus Seminar inventoried and evaluated all of the claimed words of Jesus, including the ‘I am” sayings from the Gospel of John.[2]

Organized by the newly deceased Robert Funk, the Jesus Seminar reported on its search for the authentic words of Jesus in The Five Gospels: The Search for the Authentic Words of Jesus.[3] Their work assessed 18 percent of the sayings of Jesus to be at least probably authentic.[4] Jesus’ claims to deity, including the “I am” sayings, were rejected. They generally dispensed with such claims of divinity essentially because they were viewed as constructs or creations by Jesus’ followers.

To test the sayings of Jesus, the Fellows of the Jesus Seminar employed three dominant criteria: (a) coherence, (b) dissimilarity and (c) multiple attestation.[5] Under this approach, the sayings are more likely to be authentic to the extent they cohere in form and content with other acts and sayings of Jesus.[6] Otherwise, if Jesus were not reasonably consistent, his identity would be elusive.[7] Further, the Jesus Seminar evaluated whether the sayings were dissimilar with those in both Jewish and Christian lore.[8] The Jesus Seminar contended that a sorting process would have softened the difficult sayings of Jesus process, so words that might embarrass the Christian community would not have been likely to have been invented by them.[9] Finally, the Jesus Seminar valued sayings as authentic that could be found in multiple sources or in multiple forms, such as in a parable, which would necessarily exclude the “I am” sayings.[10]

Funk overtly cloaks these criteria with the language of law, astonishingly calling them “rules of evidence”.[11] However, these criteria do not equate to the rules of evidence actually employed in courts of law. Moreover, these criteria incorporate a “burden of proof” that does not exist in the law. These two deficiencies in the Jesus Seminar will be explored in light of well-settled principles of evidentiary law. At least one commentator has concluded that the Jesus Seminar's case “would not stand up in any court”.[12] Professor Witherington similarly stated: “I will leave the reader to decide whether it is a truly scholarly and unbiased approach to reject the majority of one’s evidence and stress a minority of it. In a court of law, where there is plenty of critical scrutiny, point and counterpoint, this sort of approach would never stand up.”[13]

A. The Jesus Seminar's Criteria of Authenticity Unfairly Eliminate Admissible Evidence

If the Jesus Seminar had employed the actual rules of evidence, the “I am” sayings found in John that it found inauthentic would rather have been admissible (as reliable) under the widely accepted rules of evidence. In 1874, Harvard Professor of Law, Simon Greenleaf posited this general approach in his landmark work, The Testimony of the Evangelists. More recently, lawyer Pamela Binnings Ewen has updated this method in Faith on Trial. Both argue that the Gospel accounts should be tested according to the same tests to which other evidence is subjected in courts.[14] By contrast, the Jesus Seminar's highly restrictive criteria excluded otherwise admissible statements.[15]

Under the rules of evidence for “out of court statements”, which is generally known as “hearsay”, there are numerous exceptions allowing for their admissibility on the theory that the underlying circumstances carry the necessary indicia of trustworthiness to make the declarant's statement sufficiently reliable as substantive proof.[16]

In the case of Jesus' sayings as recorded in the Gospels we are potentially dealing with what is known as “hearsay on hearsay” or “double hearsay”. This is so because Jesus' statements could be considered one layer of hearsay, and its recordation by others in the written Gospels could be deemed another layer of hearsay. However, this does not by itself make the evidence inadmissible.[17]

There are numerous exceptions to the hearsay rule which would allow for the admissibility of “statements” bearing the mark of trustworthiness. One such exception is declarations against interest--pecuniary, penal or proprietary.[18] The rationale for this exception is that a reasonable person in similar circumstances would not make a disserving statement unless he or she believed it to be true.[19] This concept is actually much broader than the Jesus Seminar criterion of “dissimilarity”.

For example, Jesus’s “I am” statements might—and in fact were--deemed blasphemous by the religious authorities of His time, and hence, were against his (and John’s) penal interest. As noted above, right after Jesus said “’Truly, truly, I say to you, before Abraham was born, I am’” (John 8:58; NASB), those in the Temple who heard this claim “picked up stones to throw at Him….” (John 8:59; NASB.)…

Not only did this claim of equality with God expose him to jail, it exposed him to death (and it ultimately did). Then turning to the documents recording such a statement, the Gospel of John, the law specifically excepts from the hearsay rule ancient texts, where they are 20 (California Rule) or 30 (Federal Rule) years old, and the statements therein have been generally acted upon as true by persons having an interest in the matter.[20] Similarly, recording the ‘I am” sayings, especially in the context of “the Word was God” (John 1:1; NASB), could be deemed declarations against John’s interests, given the persecution of the times. Accordingly, there are exceptions for each layer of potential hearsay, and such testimony would be deemed admissible evidence.

Another exception to the hearsay rule is prior consistent statements.[21] This exception parallels the “coherence” criterion of the Jesus Seminar, but, again, it is broader than that employed by the Jesus Seminar. It does not require a volume of prior statements, or a balancing of all statements to form a consensus, but simply rather that the prior statement is consistent with a statement that is being attacked. The reasoning underpinning this exception is that “it is not realistic to expect a jury [or fact-finder] to understand that it cannot believe (the) witness was telling the truth on a former occasion even those it believes that the same story given” at a later time is true.[22]

More than one “I am” saying appears in John, although it may be argued that some are more ambiguous than others. However, as argued by Ball, when viewed in the context of the parallels in Isaiah, they have fairly be read to cohere with each other.[23]

B. The Jesus Seminar's Criteria of Authenticity Incorporate an Improper Burden of Proof

Darrell L. Bock frames the “burden of proof” issue well, “Should the benefit of the doubt go to a saying unless it can be shown to be inauthentic, or should it be doubted unless proved authentic? The loose orality view of the Jesus Seminar takes the position: Prove it to be true! On this approach, single testimony is almost automatically excluded as being of any value; one witness is not enough to establish a saying as tied to Jesus.”[24]

Indeed, the Jesus Seminar explicitly posited that "only sayings that can be traced back to the oral period, 30-50 C.E., can possibly have originated with Jesus.”[25] Such a statement presupposes that the early church could not possibly have remembered them.[26]

In addition to overcoming the hearsay exclusionary rule, noted above, ancient texts enjoy another presumption that the Jesus Seminar overlooks. Ancient documents, which come from a proper repository or custody, and bear no evident marks of forgery, are presumed as genuine and are permitted to be read into evidence, unless the opposing party is able to impeach them.[27] The burden of showing them to be false is on the objecting party.[28] The fact that the originals are lost is of no moment.[29]

Professor Greenleaf turns the burden of proof employed by the Jesus Seminar on its head: “In trials of fact, by oral testimony, the proper inquiry is not whether it is possible that the testimony may be false, but whether there is sufficient probability that it is true.”[30]
Unless there are circumstances generating genuine suspicion concerning the witness' veracity, every witness is to be presumed credible.[31] Again, the burden of impeaching or undermining his credibility rests with the party objecting to the testimony.[32] The Jesus Seminar overlooks this burden.

Contrary to the Jesus Seminar's approach dispatching testimony of one witness as unreliable per se,[33] single witness testimony may be relied upon unless impeached by the objector.

Further, in this case there are instances of "multiple attestation" in the biblical and extrabiblical accounts.[34] Greenleaf argues that some discrepancy in the biblical accounts does not undermine their credibility.[35] To the contrary, if they were in strict verbal conformity, one could call into question the writers' credibility.[36]

The “burden of proof” employed in the Jesus Seminar's criteria seems to reveal a bias in their approach.[37] Luke Timothy Johnson argues that these are not objective criteria, but rather assumptions that are attached to a predetermined vision of the Jesus that is purportedly being sought.[38] Darrell L. Bock argues that there seems to be a hidden criterion in the Jesus Seminar's evaluation of sayings, namely that if the saying elevates Jesus to being more than a sage, it is deemed inauthentic.[39] Further calling into question the propriety of the Jesus' Seminar's skewed “burden of proof” is the apparent inconsistent application of their own criteria.

Works Cited

Ball, David Mark, I Am in John’s Gospel: Literary Function, Background & Theological Implications. Sheffield: Sheffield Academic Press, 1996.
Borg, Marcus. "The Jesus Seminar and the Church," in Jesus in Contemporary Society. Valley Forge, PA.: Trinity Press, 1994.
Crossan, John Dominic. Jesus: A Revolutionary Biography. San Francisco: Harper San Francisco, 1994.
Crossan, John Dominic. The Historical Jesus: The Life of a Mediterranean Jewish Peasant. San Francisco: HarperSan Francisco, 1991.
Ewen, Pamela Binnings. Faith on Trial. Nashville, Tenn.: Broadman & Holman Publishers, 1999.
Funk, Robert W. Honest to Jesus. San Francisco: HarperSanFrancisco, 1996.
Funk, Robert W. and the Jesus Seminar. The Acts of Jesus. The Search for the Authentic Deeds of Jesus. San Francisco: HarperSanFrancisco, 1998.
Funk, Robert, W., Roy Hoover and the Jesus Seminar. The Five Gospels; What Did Jesus Really Say? New York: Macmillan, 1993.
Ginger, Roy. Six Days or Forever? London: Oxford U. Press, 1958.
Greenleaf, Simon. The Testimony of the Evangelists. Ann Arbor: Baker Book House Company, 1965 (Reprinted from 1874 Edition printed in New York by James Cockcroft & Company).
Hays, Richard. "The Corrected Jesus." First Things, May 1994, pp. 43-48.
Rourke, Mary. "Cross Examination." Los Angeles Times, February 24, 1994, E1, E5.
Johnson, Luke Timothy. The Real Jesus. San Francisco: HarperSanFrancisco, 1996.
Wilkins, Michael J. and J.P. Moreland, eds. Jesus Under Fire. Grand Rapids, Mich.: Zondervan, 1995.
Witherington III, Ben. The Jesus Quest: The Third Search for the Jew of Nazareth (Second Ed.). Downers Grove, Ill.: InterVarsity Press, 1997.
Wright, N. T., The Challenge of Jesus. Downers Grove, Ill.: InterVarsity Press, 1999.

[1] Witherington, pp. 42-57.
[2] Funk, p. 8. See Borg, p. 162.
[3] Funk, p. 13.
[4] Funk and the Jesus Seminar, p. 1; Witherington, pp. 42-43, 57.
[5] See Funk, pp. 136-39; Wilkins and Moreland, pp. 90-94; and see also Witherington, pp. 46-47. An exploration of Funk's eight functions of historical inquiry reported in his later work, Honest to Jesus, engenders understanding of his methodology. He asserts that the first function of historical inquiry is to isolate and establish the particular. (Funk, p. 60) He notes that particulars are established through confirmation by independent sources or by comparative evidence. (Ibid.) According to Funk, the second function is to group the particulars into constellations or arrays, that is, placing things together that belong together. (Ibid. at 61.) The third function is to assemble comparative evidence. (Ibid.) In this case, this would mean to compare what one finds written about Jesus with that written about other teachers and charismatic figures of the time. (Ibid.) The fourth function, according to Funk, is to arrange arrays of information into strata, leading towards the chronological ordering of sources. (Ibid.) The fifth task of the historian is to study the literary vehicles. (Ibid.) The sixth function is to bring a broader perspective by analyzing the trends of the time. (Ibid.) The seventh function is to analyze how the observer affects the observed. (Ibid., at p. 62.) The eighth function is to note how the prior interests of scholars influence the kind and range of data selected and how that selection affects the historical reconstruction. (Ibid.)
[6] Funk, p. 138.
[7] Ibid.
[8] Ibid., at p. 145. See Funk and Jesus Seminar, p. 533.
[9] Funk, p. 138.
[10] Wilkins and Moreland, p. 92. See Johnson, Luke Timothy, p. 24.
[11] Funk, p. 138.
[12] Hays, pp. 43-38.
[13] Witherington, p. 57.
[14] Greenleaf, pp. 2-3.
[15] Funk, Hoover and the Jesus Seminar, pp. 62 and 461.
[16] People v. Cudjo, 6 Cal.4th 585, 608, 25 Cal.Rptr.2d 390, 404 (1993).
[17] Cal.Ev.Code §1201, F.R.E. 805. See People v. Collup (1946) 27 C.2d 829, 834, 167 P.2d 714; People v. Lew, 68 C.2d 774, 778, 69 C.R. 102, 441 P.2d 942 (1968); In re George G., 68 C.A.3d 146, 155, 137 C.R. 201 (1977); People v. Perez, 83 C.A.3d 718, 727, 730, 148 C.R. 90 (1978).
[18] Cal.Ev.Code Section 1230; F.R.E. 804(b)(3).
[19] People v. Frierson, 53 Cal.3d 730, 745, 280 Cal.Rptr. 440, 448 (1991), cert. denied, 112 S.Ct. 944 (1992)
[20] Cal.Ev.Code Sections 1331 and 1341, F.R.E. 803(16). See discussion below regarding ancient documents and the burden of proof.
[21] Cal.Ev.Code Section 1236, F.R.E. 801(d)(1)(B).
[22] Cal.Ev.Code Section 1236, Comment.
[23] Ball, passim.
[24] Wilkins and Moreland, p. 90.
[25] Funk, Hoover and Jesus Seminar, p. 25.
[26] Wilkins and Moreland, p. 20.
[27] Greenleaf, p. 7.
[28] Ibid., at pp. 7-8.
[29] Ibid., at p. 9.
[30] Ibid., at p. 23.
[31] Ibid., at p. 25.
[32] Ibid.
[33] Wilkins and Moreland, p. 90.
[34] Greenleaf, pp. 51-54, and Wilkins and Moreland, pp. 208-221.
[35] Greenleaf, p. 33.
[36] Ibid.
[37] One may be taken aback by the telling admission of Jesus Seminar's cofounder Robert Funk: “We want to liberate Jesus. The only Jesus most people know is the mythic one. They don't want the real Jesus, they want the one they can worship. The cultic Jesus.” Rourke, pp. E1, E5. Funk's view of Christology is not difficult to divine from this quote. Similarly, another Jesus Seminar luminary, John Dominic Crossan, pontificates that Jesus's death and resurrection did not happen but were products of wishful thinking. See Crossan, 1994, ch. 6. Indeed, Crossan makes no pretensions concerning his objectivity. He remarkably concedes: “[M]y methodology does not claim a spurious objectivity, because almost every step demands a scholarly judgment and an informed decision. I am concerned, not with an unattainable objectivity, but with an attainable honesty." Crossan, 1991, p. xxxiv.
[38] Johnson, Luke Timothy, p. 25.
[39] Wilkins and Moreland, p. 91.

Tuesday, July 25, 2006

A Major Announcement, Part V.

Much like Marcus Borg, Thomas Jefferson rewrote the Gospels to extract any references to Jesus' divinity or miracles. Read about it here.

(via the evangelical outpost.)

Monday, July 24, 2006

A Major Annoucement, Part IV.

Here is my book review of The Meaning of Jesus by N.T. Wright and Marcus Borg.

Here is a sample accolade my review garnered.

Friday, July 21, 2006

A Major Accouncement, Part III.

From the great Dr. Mark D. Roberts, here is a further piece responsive to Dr. Ehrman's book and the related issues concerning reliability of the gospels.


Thursday, July 20, 2006

A Major Announcement, Part II.

Here is a critical response to Bart Ehrman and his book, Misquoting Jesus.

(Via: Middlebrow.)

Wednesday, July 19, 2006

A Major Announcement, Part I.

This post kicks off a series of interrelated pieces that will culminate in a major annoucement.

So as they say stay tuned (and enjoy in the meantime)!

The Book of Bart is an intriguing piece about the best-selling author Bart Ehrman, whose latest, Misquoting Jesus: The Story Behind Who Changed the Bible and Why, has been a publishing sensation (especially for a theological work).

(Via Washington Post.)

Saturday, July 15, 2006

Movie Review: Superman Returns [spoiler alert].

Finding Christ-figures in movies can be trite and trivializing.

Some have taken the exercise so far as to suggest, for instance, that Sean Penn’s death-sentenced character in Dead Man Walking fulfilled this role. After all, they argue, the convict spread his arms in a crucifix pose as he died of the lethal injection. This extreme example brings to mind the admonition found in Dr. Robert Johnston’s Reel Spirituality: “There is a danger…in having overenthusiastic viewers find Christ-figures in and behind every crossbar or mysterious origin. This is to trivialize both the Christ-figure and the work of art.” (p. 53.)

Nevertheless, the Christ-figure in Superman Returns is unmistakable. The panoply of parallels is about as overt as a Christiana Aguilera music video.

For examples, Superman is sent from his celestial home by the “Father” to live as a human. His life is to help hapless humanity. He removes from the earth the deadly sin (represented by an ugly land mass hatched by evil incarnate) and falls back to earth in, you guessed it, a crucifix pose. He nearly dies (ok, the metaphor isn’t perfect) and then unexpectedly rises, so his followers can find only an empty tomb—i.e., hospital bed.

That the movie employs a Christ-figure does not make it trite or trivial, however. There is a positive aspect. “The Christ-figure is a foil to Jesus Christ, and between the two figures there is a reciprocal relationship. On the one hand, the reference to Christ clarifies the situation of the Christ-figure and adds depth to the significance of his actions, on the other hand, the person and situation of the Christ-figure can provide new understanding of who and how Christ is :’Jesus himself is revealed anew in the Christ-figure.’” (Lloyd Baugh, Imaging the Divine: Jesus and Christ-Figures in Film, 112.)

In this instance, Superman Returns’ multi-faceted use of the Christ-figure is elegant and eloquent. The film soars in the imagery, and is aided by high production values, plentiful and credible action sequences, and a picture-perfect performance by Brandon Routh in the title character. By contrast, Kate Bosworth’s Lois Lane is petulant and pitiable. Hopefully Ms. Bosworth will have an irreconcible conflict, such as being cast in a Deuce Bigalow filmic masterwork, when the next Superman installment is filmed.

I recommend Superman Returns highly, especially to those interested in Christology and Christ-figures in film.

Superman Returns receives an A-.

Thursday, July 13, 2006

Book Review: Sabbatical Journey by Henri J.M. Nouwen.

1. Synopsis

This text represents Henri J.M. Nouwen’s diary during his final year. As Nouwen died unexpectedly on September 21, 1996, he did not know it was his final year when he wrote it. Instead, the book grew out of Nouwen’s effort to take a sabbatical during this period. At the outset, Nouwen writes of his objective for the year, as follows: “I have always dreamt about a whole year without appointments, meetings, lectures, travels, letters, and phone calls, a year completely open to let something radically new happen…. Free to think critically, to feel deeply, and to pray as never before.” (p. 3.)

The irony perhaps is that the book is replete with much activity and few prayers. He records myriad encounters with family, friends and acquaintances; he chronicles his many trips, including to Holland and San Diego; and he provides details about his speaking engagements and writings.

As a result, the book did not seem like a prime example of one free from commitments or taking advantage of a relaxing sabbatical. Nevertheless, the curtain is pulled back intermittently to reveal to the reader special insights and revelations about Nouwen. In so doing, the book contains some profound thoughts or reflections interspersed with notes about his activities.

In these thoughts and reflections, Nouwen returns to some familiar themes. He speaks about his gratefulness for the blessing in his life; he writes about his love for the Eucharist as a lifestyle; he explores his inner weaknesses in frankness; and he discusses his ideas about tolerance that borders on universalism. In this regard, Nouwen interestingly writes about the similarities between Christianity and Buddhism. Nouwen once again demonstrates his skills as a synthesizer and integrator of seeming opposites.

2. Analysis

Nouwen’s ruminations bordering on universalism were striking. For example, Nouwen wrote: “I personally believe that while Jesus came to open the door to God’s house, all human beings can walk through that door, whether they know about Jesus or not.” (p. 51.) This statement came on the heels of his rejection of the view that a profession of faith in Jesus was required for salvation. (Ibid.)

Nouwen critiqued others’ view of the centrality of a profession of faith in Christ, as follows: “Many of the people I met in Cancun believe that without an explicit personal profession of faith in Jesus as our Lord and Savior, we cannot make it to heaven. They are convinced that God has called us to convert every human being to Jesus.” (Ibid.)

I think these controversial thoughts have to be placed in Nouwen’s broader context or themes of tolerance, love and reconciliation that permeate the book. In other words, Nouwen had reached a point in his journey where he evidently wanted to look for things that reconciled people rather than divided them. Further, Nouwen so focuses on God’s love that he downplays or ignores His justice.

However, while Jesus’ work represents the avenue of reconciliation of sinners with God, it cannot be stripped from its inescapably divisive overtones. While I certainly recognize the surface appeal of this message of universalism, it ultimately cannot stand in the wake of Jesus’ pronouncement that no one comes to the Father except through Him (John 14:6), and the similarly exclusionary aspects of Pauline theology.

Nevertheless, Nouwen’s general themes of reconciliation and forgiveness with his own father (and friends) resonated with me. Nouwen had reached a point in his life where he could forgive those who had wronged him as a means to peace and happiness.

3. Response

I chose this journal because I was fascinated with the finality of its context. In other words, the fact that this book came at the end of Nouwen’s life offered the promise of his most fully-formed reflections. In addition, I wanted to search for clues as to what might have contributed to his death or if he had any inklings of the end that awaited him (known in hindsight to the reader).

I was particularly drawn to the entries where Nouwen set aside the busyness of his life and recurrent recording of his many activities to offer his thoughts reacting to, because of, or in spite of, these events. For example, “[H]uman happiness has little to do with money, success, or popularity but everything to do with friendship, love, and a purpose in life.” (p. 56.) Likewise, Nouwen offers: “Why should I ever think or say something that is not love? Why should I ever hold a grudge, feel hatred or jealousy, act suspiciously? Why not always give and forgive, encourage and empower, give thanks and offering praise? Why not?” (p. 73.) These are powerful reflections that stand out from the other sometimes mundane entries (which nevertheless furnish some insight).

Also, I was surprised by Nouwen’s naivete. He spoke wistfully of the United Nations and (understandably) the Pope’s speech to the U.N. (p. 30), but to my perhaps jaundiced eye I found them to be quite naïve. For example, Nouwen writes: “[The U.N.] is one of the few organizations that has the potential for creating peace on our planet and preventing it from being destroyed by human greed and revenge.” (p. 43.)

I gravitated towards much of Nouwen’s discussions of his internal inconsistencies, such as searching for praise for his sermon on humility, as these paradoxes or tensions are familiar in my own journeying experience.


Tuesday, July 11, 2006

Balancing out.

I've been fleeced. But it's all even now.

Last April, I wrote about the undeniable joy of parking in Los Angeles for free. Unfortunately, the exact same courthouse parking garage got its money back last week.

I handed the attendant a twenty expecting ten dollars change. Instead, I got a receipt and a smirk. Not the ten bucks.

So, I inquired about my change. The attendant insisted that I gave her a ten. To prove her case, she pointed to the till saying there was only one ten dollar bill resting there.

To my cynical eye, this seemed a fallacious argument since the ten spot just as logically could have been there whether I furnished a ten or twenty.

In any event, I remembered the windfall from last Spring and chuckled at the the "invisible hand" of parking garages leveling everything out.

Thursday, July 06, 2006


"Why should I ever think or say something that is not love? Why should I ever hold a grudge, feel hatred or jealous, act suspiciously? Why not always give and forgive, encourage or empower, give thanks and offer praise? Why not?" Henri J.M. Nouwen, Sabbatical Journey, p. 73.

Tuesday, July 04, 2006

Sycophantism, Part II.

If things don't work out at Vinson & Elkins, the job applicant (see below) perhaps could fill out an application to work at this law firm.

Monday, July 03, 2006


There is no way to guaranty whether the following email is real. But, as we know, truth is often stranger than fiction. After being denied a job at Vinson & Elkins, a federal law clerk reportedly sent the following e-mail requesting reconsideration of his application. Beware of the second-to-last paragraph.

"-----Original Message-----
From: (omitted)
Sent: Monday, May 15, 2006 11:25 AM
Subject: request to reconsider (omitted)

Dear Loreatha,

I received your letter dated May 11, and I am extremely disappointed that Vinson & Elkins has chosen not to extend me an offer. I remain convinced that V&E is the right firm for me. While it is hard to quibble with the verdict of a panel of 14 people, I believe that a real mistake was made, and I ask that my application be reconsidered.

I assume that V&E's chief objective in hiring new associates is to get the best people it can get. Please consider the fact that in law school, I earned the top score in my section on EVERY PAPER in both of my legal writing courses. (The grading was done anonymously.) My article was selected for publication in the Northwestern Law Review, which is one of the top law reviews in the country. Judge Amy St. Eve, a federal judge with whom I externed, will tell you that I was the best extern she ever had (and her externs were mostly cream-of-the-crop Northwestern students, many of whom went on to federal appellate clerkships). The Judge I work for now, as well as other people with whom I have worked, will tell you that I have unusual talent as a legal analyst. I suggest that before you conclude that I don't measure up to V&E's standards, you ask people with whom I have worked what they think about my work and my abilities. At risk of sounding arrogant, I submit that I would be a standout performer at V&E, even though V&E is an elite firm that can select from among the best candidates.

I sensed that some of my interviewers were uncomfortable with the fact that I am not committed to a specific substantive area of law. I would argue, however, that the tools that we bring to the table as lawyers are far more important than the direct, "relevant" experience we bring. "Practical" experience is no substitute for creative intelligence, intellectual sophistication, and pure tenacity. The career clerk in my judge's chambers has 20+ years of experience, so she knows a lot of things that I don't know. But she is not in my league as a legal analyst and writer. I have seen enough during my clerkship to say with confidence that I am capable of better work - far better work - than most of the "experienced" attorneys who practice before my judge.

As a judicial clerk, I have been deeply immersed in all sorts of cases at every phase of the litigation process. There are many procedural issues that are common across all different substantive areas of law. There are many connections and overlaps between the different substantive areas. Even within a given substantive area, every case is different, turning on its own facts. The relatively inexperienced associates who specialize in a particular area will have only seen a small part of the universe of possible issues that may arise in their area. Given these facts, I am highly skeptical that, say, a 3rd-year associate who has specialized in "oil and gas" is going to be light years ahead of me in that field. The hypothetical 3rd-year associate will certainly know a lot more than I know about the art and practice of lawyering. But it is highly doubtful that her substantive oil and gas knowledge (which of course exceeds mine) will give her a significant advantage over me when it comes time to analyze the next oil and gas case (which will no doubt involve issues that neither of us have seen before). I want to work on interesting, challenging cases, but I don't believe it would be rational for me to arbitrarily limit myself to a specific substantive area of law at this point in my career. I'll find my niche down the road. I would think that V&E would prefer that their new associates be open-minded enough to try different things.

I would also add that there are intangible factors to be considered. I left a lucrative job in my mid-thirties, working hard to score in the top 1% nationwide on the LSAT so I could go to an elite law school. (I was the oldest guy in my class.) When I was a computer programmer, I was a one-man consulting firm, saving my employer (the state of Louisiana) millions of dollars in costs and making the lives of thousands of people (the system's users) easier. Often, I would go to bed at night, half dreaming, half awake, obsessing over a thorny problem that I encountered. When the creative inspiration would come in the morning, those were the greatest thrills of my life. I know what its like to work 80-hour weeks for months on end. I know what's it like to be considered the expert of last resort - the guy they call in the middle of the night when the data gets corrupted and no one else can figure out what to do. I take my work SERIOUSLY and I take great pride in what I do. I would submit that these are the qualities that can make me a "franchise player" at V&E.

I recognize that the chance that you will reconsider and extend me an offer are very slim. (Lawyers tend to be extremely risk-averse and unwilling to do things differently than they've done before.) But please give this request some serious consideration. I suggest that you begin by talking with some of the folks who have worked with me.

Finally, if you are not willing to change your verdict on me, would you please do the favor of giving me some honest feedback about why you were not impressed enough with me to make an offer? Is it my age? (I'm 39, but I'm healthier than most 25-year-olds.) Is it that I'm losing my hair? (I am willing to undergo transplants!) Is it the fact that I wore a pink shirt to my interview? (My wife picked it out.) Is it the fact that I took the Louisiana bar exam before taking the Texas bar exam? (I took the Louisiana exam because I wanted to get licensed in my home state, and I wanted to get it out of the way first because I had to learn all that civil code stuff.) Is it because I have spent most of my life in Louisiana? (Houston is only a 3-hour car ride or a 40-minute plane ride from Baton Rouge.) Is it because I have a minor speech impediment (a "lacerated S")? Is it because I am introverted? Do I come across as arrogant? Too timid? Is it because I'm not committed to a specific substantive area of litigation?

You judged me as a qualified candidate based on my paper credentials, as evidenced by your willingness to expend the resources to bring me in for an interview. I assure you that I am a much better lawyer than even my paper credentials suggest! Please give me another look. It would be a shame if V&E and me are deprived of a mutually profitable relationship because I failed to present myself well in person on May 8.
(omitted)" [Emphasis supplied.]

Sycophantism is a scary thing. Makes people do and say strange things.

(via Crime & Federalism.)