JUST MUSING: “Namaste, namaste…”

Our legal justice system is expensive, oft-times a rich boy’s game, allowing the party with the most gold to rule.  Our system of justice is complicated, meaning part and parcel of winning may well include (let me be more direct, “does include”) the manipulation of practice rules to the client’s advantage, delaying, delaying, delaying, sapping memories, energies, the disadvantaged party’s non-existent wealth.   Litigation is time consuming, causing heads to grow grayer/whiter, sketching lines in the faces of its participants, violating the Rule Against Perpetuities (don’t ask me to explain the rule, please go directly to the link and try to figure it out).  Roads less traveled, lives enveloped and sequestered, encompassed and contained careers, gifting time to Lady Justice, forgetting the year that so-and-so died, the bequeathing of souls.  All this while the profession’s participants preach, flat out preach, that ours is the best legal system in the world.  Maybe, maybe not, but be clear, this is not why I muse.  I am digressing early, to be able to complain later.

This past week the United States Supreme Court finally put to rest the challenge to the University of Texas’ use of affirmative action to fill incoming classes.    The case was brought by Abigail Fisher and another student, Rachel Michalewicz, in the United States District Court for the Western District of Texas – Austin Division, back in 2008, complaining that race should never be a factor in the admissions’ process.  Fisher was a recent graduate of Stephen F. Austin High School in Sugar Land, Texas; Michalewicz a recent graduate of Jack C. Hays High School in Buda, Texas.  When the case was first brought, my office and the NAACP Legal Defense and Educational Fund (LDF) attempted to intervene in the case in order to represent Black undergraduate and law students.  Judge Sparks denied the request.  The Fifth Circuit affirmed the district court’s denial.  Fighting the toxic mix of sleep and anger during the initial hearings, positioning my back against my seat, grabbing the edge of the chair, wondering silently whether the University of Texas’ soiled history, on the question of race, prevented the University from properly defending the attacks against its’ affirmative plan.  LDF’s counsel preached patience, positioned in an erect position both the courtroom and at lunch, affirming daily his intent to stay for the entire trial, while I committed to sitting silently for three days, at most, before fleeing back to Galveston.

Reading about the Fisher decision caused me to chart the tortured path the case took, the Fifth Circuit (appeals courts in New Orleans) at least three times, and twice before the  United States Supreme Court.   No, no, I am not musing to write about the propriety of affirmative action.  Nor do I muse to discuss the importance of the current presidential race, providing a clear marker, the possibly of one … two … appointments to the Court.  And even though all these issues are important, my concerns lie elsewhere.  I muse because of the consequences of what the profession has wrought.

Recently the National Law Journal, and other publications, cited a study conducted by American Bar Association and the Hazelden Betty Ford Foundation, finding 1 out of 3 lawyers (33%) are problem drinkers, with nearly as (28%) suffering with depression, and a statistically significant number coping with anxiety (19%).  “Problem drinking by lawyers was notably higher than the 15 percent of surgeons who were categorized as abusing alcohol, as reported in a 2012 study of nearly 7,200 surgeons by the American College of Surgeons”, so reported the New York Times.  I suspect lawyers’ problems bear a direct correlation to the burden imposed upon lawyers.

Let me trudge the path by taking a different path.  This is an Olympic year.  Wikipedia describes the games thusly:  “The modern Olympic Games or Olympics (FrenchJeux olympiques) are the leading international sporting event featuring summer and winter sports competitions in which thousands of athletes from around the world participate in a variety of competitions. The Olympic Games are considered to be the world’s foremost sports competition with more than 200 nations participating.  The Olympic Games are held every four years, with the summer and winter games alternating by occurring every four years but two years apart.”  Birthed in Greece, in the eight century, BC, the aim of all participants, since the Games’ inception, is conquest, by any means necessary.  Of course, the modern Olympiads have more means available than their predecessors, sometimes requiring others to intrude, saving the Olympiad from himself/herself.

Peeing in a bottle, imposing bans from competition, testing, saving the baby, to save the integrity of the Games.  The legal profession has reached the same point, possessing far more means layered with far greater responsibilities.  Continuing to contend that ours is the best in the world is not sufficient; there must be some type of preventative action, intruding, saving the participants from themselves.  I muse to say the funds spent on continuing legal education (CLE) should be redirected to testing (peeing in a bottle) and a required exercise program.  Abolishing CLE requirements will have little effect on the competency of lawyers, in that a lawyer who refuses to study his/her craft is doomed to extinction anyway.

The Questionnaire for a United States District Judge’s position covers the following basic categories:  names known by, education, military service, honors and awards, bar association memberships, bar and court admissions, membership in civic and other organizations, any judicial experience, and sources of income.  Nome of the questions asks about exercise, addictions, or whether the applicant will agree to periodic urine testing.   You read right, periodic, voluntary, submission of urine.  This is not a bottoms-up recommendation.  This recommendation proposes the leadership flows from top-down.  The courts and its’ occupants are the legal profession’s brightest, the leaders.  They establish the rules, are held in august esteem by those occupying the hierarchal rings below them; leading by example to assure the profession’s survival.

I suspect that if the ABA’s study is correct, that is, lawyers leading the way on alcohol consumption, depression and anxiety, then it follows that – they – lawyers – are in all probability just as competitive with respect to the consumption of other legal and illegal drugs; just makes sense to me.   Recently, the Russian Federation was suspended from the 2016 Summer Olympic in Rio for a documented, state-sponsored program of illegal doping.  The ruling by the International Association of Athletic Federations (IAAF) is designed to save the integrity of the Games, implicitly the athlete.  In this context, I believe, I just believe, that depression and anxiety affects lawyers like it affects the rest of the populace, the appearance of physical and mental maladies, leading to early and untimely deaths.

Lawyers are expected to undertake others peoples’ problems, litigate in a world which speeds up daily, subjecting themselves to multiple, competing, instantaneous demands, invasive electronic transmissions, digital invasions, including spyware which only contributes to a collective paranoia, layered on top of unforgiving debt-structures, internet driven expectations, and a demand their work can somehow be done faster, faster, faster, pushing the practitioner to his/her limits, all working to drive lawyer to the consumption of both legal and illegal substances.

Are you still struggling with my position?  Please trudge with me one more step – in every musical genre there are individuals or groups who represent the soul of the genre.  They are somewhat akin to spokespersons, leading the way through the continuum of time by their body of work.  In hip-hop, one can arguably submit the work of Grand Master Flash and the Furious Five’s, “Don’t Push Cause I’m Close to the Edge” is an apropos lyrical contribution to their genre and the field of hip-hop.  It strikes me the song’s lyrics also provide an apt description of the dilemma faced by the profession, pushing lawyers closer to the edge.  Burdened by debt, the persistence of the profession’s self-defeating mythology, the imposition of ever-imposing technology, causing lawyers to wonder daily how to “keep from going under.”  Grand Master Flash and the Furious Five’s induction into the Rock & Roll Hall of Fame (2007), allowed the world to appreciate the groups’ contribution to a musical genre, shaping America’s youth and beyond.  None of this helps the lawyer however, thus this muse.

I have had at least three conversations in the last six months with members of the profession who were nearing their twentieth anniversary as lawyers.  Listening, wondering, worrying, that some twenty years later their student loans remain attached, every present.  Like barnacles secured to the underside of passing ships.  Present and persistent, the same as the daily actions of the ocean, causing the lawyer to look outward and beyond the horizon, hoping their chosen profession was worth the effort, sometimes ignoring it does, while consistently ignoring their plight is the rule, not the exception.

There is nothing the profession can do about the attractive nuisances (bars) which lie in proximity to lawyers’ daily habitats.  They, the nuisances, are part and parcel of terrain and fundamentally part of commence.  Popular literature, television, movies, and commercials will reach out and touch the lawyers’ souls, promising riches and prestige; this too is part and parcel of a lawyer’s life this century and beyond.  Absolutely, I recognize there are programs in place to deal with addictions; these programs however are after-the-fact.  It seems to me that somehow extending the hand after the addiction is meaningless, somewhat akin to blaming the victim, ignoring the real-world numbers and the consequences of those numbers.

Under my proposal the new programs would be top-down.  The United States Supreme Court Justices peeing in a bottle, inviting the cameras into the Court’s gym, while the Chief encourages his charge.  “Notorious, (Notorious R.G.B) one more arm curl, one more,” before turning to Brother Thomas pleading for him to grimace less, while encouraging Brother Thomas to loosen his chest wall, give it his all, “breathe”!

“In out, in and out, Clarence, in and out.  Let me hear you breathe, Clarence, let me hear you breathe!”

As the camera pans across the Court’s gym the public will be provided a glimpse of Justice Sotomayor counting in Spanish – sweating, sweating, sweating – as the announcer discusses the profession’s inherent dangers (stress), briefly mentioning the correlation between stress, illnesses and death.

“Uno, dos, tres, cuatro, cinco, seis, siete, ocho, nueve, diez,” so screams Justice Sotomayor – in a Bronx kind of way – while the camera continues to scan, revealing the other Justices looking asunder, wondering whether their contribution, leading by example, is all that important.    But it is Your Honors, but it is!

“Okay again”, recounts the Chief, with his back positioned in front of the camera, obscuring, never showing his face, albeit his identity established by the letters emblazoned on the back of his exercise jacket (“Chief Roberts – Namaste Master”), greying temples, that voice.  I’m quite sure the rich lawyers will hire experts (voice recognition experts folks), explaining in legal terms the new rules violate everyone’s rights, informing the public and the profession that the voice was not Chief Roberts’, setting out a timeline for their anticipated legal challenge.  Immediately the Chief should release a new version of the PSA (Public Service Announcement), doubling down, understanding the importance of the new rules, turning, looking directly into the camera, revealing his face, while the rest of the Court exercises in the background.  “Don’t believe a word they say Ladies and Gentlemen, don’t believe a word they say”, before turning back to his colleagues, smiling, instructing, encouraging, and pushing for more.  Justice Kagan is now heard complaining in Yiddish, “one more time?!” (nakh eyn mal?!),   Justice Breyer demurring (not knowing whether to continue or not), then unexpectedly changing his position, giving the Chief his “one more time”.   Of course, we know Breyer was influenced by Justice Kennedy’s leading by example; bending, touching his toes, smiling at the rest of his colleagues, recognizing the importance of exercise and the voluntary submission of urine, moving the court forward.   The camera then pans stage left, the light reflecting off the marble column gracing the gym, an immaculately polished floor, reflecting, remaining positioned on Notorious R.G.B.’s crown.

Namaste, Namaste …


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