Book Review: The Audacity of Hope by Barack Obama.

One of my ethics professors in graduate school, Dr. Michael Beals, once said, "Thinking people are not extreme anything."

It's not surprising that so many have formed so many opinions about President-Elect Barack Obama. That’s endemic to politicians. What's surprising is that so many do so without bothering to read his written words.

One of the great advantages of the printed word, as Dr. Neil Postman has written in his prophetic, Amusing Ourselves to Death (1985), is that "Writing freezes speech and in so doing gives birth to the grammarian, the logician, the rhetorician, the historian, the scientist--all those who must hold language before them so that they can see what it means, where it errs, and where it is leading." (p. 12.)

At the 2008 Republican Convention, candidate Obama was ridiculed for authoring two books, as if writing was a bad thing. True, he has written two personal books, Dreams from My Father (originally published in 1995 and reviewed here on June 4, 2008) and The Audacity of Hope (2006). While Dreams is more memoir, and Audacity is more manifesto, the two lucidly reveal both aspects of Dr. Beals' quote—thoughtfulness and moderation.

Thoughtfulness

Two chapters stand out to display Obama's thoughtfulness. First, his first chapter entitled, "Republicans and Democrats" demonstrates an acute understanding of the shifting American political landscape. In particular, he draws lessons from Presidents Reagan and Clinton.

"That Reagan's message found such a receptive audience spoke not only to his skills as a communicator; it also spoke to the failures of liberal government, during a period of economic stagnation, to give middle-class voters any sense that it was fighting for them. For the fact was that government at every level had become too cavalier about spending taxpayer money. Too often, bureaucracies were oblivious to the cost of their mandates. A lot of liberal rhetoric did seem to value rights and entitlements over duties and responsibilities." (pp. 48-49 [large print edition].)

From Clinton, "It was Bill Clinton's singular contribution that he tried to transcend this ideological deadlock, recognizing not only that what had come to be meant by the labels of 'conservative' and 'liberal' played to Republican advantage, but that the categories were inadequate to address the problems we faced. ... [Clinton] instinctively understood the falseness of the choices being presented to the American people. He saw that government spending and regulation could, if properly designed, serve as vital ingredients and not inhibitors to economic growth, and how markets and fiscal discipline could help promote social justice. He recognized that not only societal responsibility but personal responsibility was needed to combat poverty. In his platform--if not always in his day-to-day politics--Clinton's Third Way went beyond splitting the difference. It tapped into the pragmatic, nonideological attitude of the majority of Americans." (p. 53.)

Second, betraying his long-standing tenure as a constitutional law lecturer at the University of Chicago Law School (p. 3), Obama's third chapter, "Our Constitution," shows a considerable depth of thought about American jurisprudence. Obama especially grasps interpretive issues underlying and roiling the law. "Partly it's the nature of the law itself. Much of the time, the law is settled and plain. But life turns up new problems, and lawyers, officials, and citizens debate the meaning of terms that seemed clear years or even months before. For in the end laws are just words on a page--words that are sometimes malleable, opaque, as dependent on context and trust as they are in a story or poem or promise to someone, words whose meanings are subject to erosion, sometimes collapsing in the blink of an eye." (p. 118.)

Moderation

In chapter eight, "The World Beyond Our Borders", Barack Obama explains his pragmatic and principled opposition to the Iraq invasion. (pp. 459-61). His was no knee-jerk anti-military reaction. In fact, when he delivered his speech opposing the war, he distanced himself from many in the anti-war audience. "To the two thousand people gathered in Chicago's Federal Plaza, I explained that unlike some of the people in the crowd, I didn't oppose all wars.... 'I supported this Administration's pledge to hunt down and root out those who would slaughter innocents in the name of intolerance' and would 'willingly take up arms myself to prevent such tragedy [9/11] from happening again.'" (p. 460.)

The quotes I have selected and placed in the "Thoughtfulness" section also evince Obama's moderation and pragmatism. He has no difficulty chastising his own party for its excesses: "I also think my party can be smug, detached, and dogmatic at times. I believe in the free market, competition, and entrepreneurship, and think no small number of government programs don't work as advertised. I wish the country had fewer lawyers and more engineers. I think America has more often been a force for good than for ill in the world; I carry few illusions about our enemies, and revere the courage and competence of our military. I reject a politics that is based solely on racial identity, gender identity, sexual orientation, or victimhood generally. I think much of what ails the inner city involves a breakdown in culture that will not be cured by money alone, and that our values and spiritual life matter at least as much as our GDP." (p. 16.)

Similarly, he endorses capital punishment in some instances, questions purely race-based affirmative action and opposes homosexual marriage.

The closest Obama comes to extreme views can be found in his fifth chapter on "Opportunity" when he delves into tax policy, education and health care, and repeatedly lauds FDR and his Social Security/New Deal safety-net.

Nevertheless, I think the more liberal wing of his party will be surprised how Obama governs--more pragmatic than dogmatic. They needn't have been surprised. All they had to do was read his books, especially The Audacity of Hope.

Where's Mauricio?

As I was waiting for my probate trial to begin last week, I was treated to witnessing dueling applications for temporary restraining orders (TRO).

Two women, who evidently had been fighting over a man, named Mauricio, filed applications for TROs against each other. At one point, the judge kept asking one what specifically the other had done to threaten her.

Applicant: "She is causing me so much stress!"

Judge: "I asked for actions, what she did. Now, tell me what did she DO?"

Applicant: "She is a horrible person."

Judge: "Please do not give me characterizations. What specifically has she done that you want to stop."

Applicant: "She's making my life extremely stressful!"

Judge: "Alright. I have heard enough. I have repeatedly asked each of you to give me evidence, any evidence, that justifies my enjoining the freedom of the other.

"People generally enjoy freedom of movement in this country. I am reluctant to interfere with that freedom unless one of the statutory reasons is implicated. You have given me nothing to work with. This is just DRAMA. Stop it!

"I have one further observation. I don't know who Mauricio is. But I can tell you he is a very smart man for not coming here today."

The judge gets the Solomon award for the week.

Imprecision.

David Foster Wallace, in his staggering book on the mathematical concept of infinity, Everything and More, provides a story showing how words can make math ambiguous.

"Three men check into a motel late at night. There's only one room left, and it costs $30, and the men decide to each chip in $10 and share it, but when they get up to the room it's a disgusting mess--apparently there was some mixup and the room never got cleaned after the last people checked out--and understandably the men call down to the manager to complain.

***

"After a certain amount of back and forth the manager agrees to knock $5 off the price of the room and to supply clean linens, and he sends a bellboy up to the room with the linens and towels and the $5 refund in the form of five $1 bills. ... [T]here's five $1 bills and three guys, so what the guys ... do is they each take back one dollar and let the bellboy keep the remaining $2 as a tip. So each man originally paid $10 and got $1 back, meaning each paid $9, which adds up to $27, and the bellboy has the other $2, which altogether sums to $29, so where's the other dollar?" (p. 34.)

Foster concludes: "[T]he point is that the verbiage ... lulls you into fuzzily trying to calculate (30 - 3) + 2 instead of the apposite (30 - 5) + (3 + 2), resulting in much confusion and mirth..." (pp. 34-35.)

Similarly, language can make the law ambiguous and sometimes intentionally so. For example, words like "reasonable" or other adjectives can be subject to considerable interpretation. Often legislation is drafted to keep such ambiguity inherent in the words to allow for judicial interpretation of such terms in the factual context of particular cases. Likewise, advocates can use adjectives and adverbs to hedge. When you see a legal brief replete with adjectives and adverbs you have to wonder what is being hidden and why.

Apology.

In law and politics, denials reign supreme. Rarely, if ever, will one find a lawyer or politician apologizing (unless it is long after the fact and is done to mount a comeback or for some strategic reason undermining the sincerity of the apology).

In fact, denials are so ingrained in the law that California allows a defendant to generally deny all of the material allegations of an unverified complaint. (C.C.P. Sec. 431.30(d) ("If the complaint ... is not verified, a general denial is sufficient ....").)

Last week, I mediated a business dispute where I represented the claimants who believed they were defrauded in their purchase of a restaurant. (By way of background, mediations are confidential settlement conferences before a neutral, so what is said during them cannot be used against the party later in court.) In this mediation, I got to observe the difference between a lawyer and a layperson apology.

After I spoke on behalf the plaintiffs, the defense lawyer started by addressing my clients directly. He said that his clients "felt bad" about what happened. Then, his next sentence communicated that they were not responsible. Not a very satisfying apology.

Nevertheless, we were eventually able to settle the dispute at terms highly favorable to my clients. Then they unexpectedly received a sweetener. The other side asked to speak with my clients and apologized for the whole ordeal. It was sincere, complete and healing. The apology didn't cost the other side any money, but it was extremely valuable to everyone.

Book Review: Lawyers' Poker: 52 Lessons That Lawyers Can Learn from Card Players.

According to the book's jacket, Steven Lubet is a law professor at Northwestern University. He specializes in trial practice and previously authored Modern Trial Advocacy.

After reading his Lawyer's Poker, "poker enthusiast" needs to be appended to his bio.

Ostensibly, Professor Lubet designed the book as "primarily" "about law and law practice, drawing upon the accumulated experience and insights of masterful card players to demonstrate ways that lawyers can refine their tactics and techniques." (pp. 8-9.)

However, the book dives so deeply into the weeds of highly technical Texas Hold'em poker theory that it nearly abandons any resemblance to a trial practice tome. As a result, the book best serves a single, narrow constituency: poker-playing barristers. Poker players who don't know any thing about trial practice will not appreciate Lubet's sophisticated discussion of trial strategy. Likewise, lawyers who don't play poker will be bored by the minutia explored by Lubet in surprising and mostly irrelevant detail.

Along the way, Lubet weaves in amusing vignettes from classic trials and poker matches. He also betrays his apparent love of film, as he lauds Rounders (a 1998 Matt Damon movie about a poker-playing law student), Legally Blonde, and My Cousin Vinnie in unusually long excursions. (pp. 146-49, 132-34 and 220-26, respectively.)

Lubet brilliantly organizes Lawyers' Poker's 52 Lessons "into four broad categories: 'Diamonds' (maximizing your winnings),'Clubs' (controlling the opposition), 'Spades' (digging for information), and 'Hearts' (ethics and character). (p. 9.) He obviously wrings the most out of his context of cards.

Especially in his last section, Lubet undermines his general thesis that poker and trials have much in common as he repeatedly draws distinctions between the two practices. For example, he concedes: "A life strategy, or law practice, based wholly on poker skills would be a disaster." (p. 191.) Agreed.

Nevertheless, Lubet does generally use poker as an effective teaching tool when he steers away from arcane poker strategies. In one particularly good example, he discusses how a trial attorney during the Bush 2000 election controversy employed a poker term, "slow playing", in how he dealt with an opposing expert witness. Lubet writes: "Lawyers often slow play on cross-examination, lulling witnesses into a false sense of security while setting them up for the kill." (p. 87.) Because this insight requires only general poker knowledge, it's far more useful to the trial advocate than knowing what to do when confronted with the "Doyle Brunson" hand--a 10-2 combination. (p. 58.)