Reed Cosper
I’m in a Proust moment. All the Brown undergraduates are back in town. And fully settled in. It is the end of the second week, after the first week’s overture to the academic year. Yesterday was first Saturday after the second week. The weather fantastic. First week of lectures over. Syllabi distributed. The reading, reading, reading begins in earnest. Exquisitely free. From my passing car, I see an undergraduate dressed summer clothes carrying books in a backsac. Instantly it is September 1964. I am at Oberlin, ingenuous, sincere, raw, wide-eyed, empty. But I digress. I am actually writing about Gibson’s.
Stop blaming Oberlin, the administration, the trustees! (forgodssake), the student, the student body, everybody except perhaps ourselves. If there is blame, blame the lawyers. And then, let us move on. I am at this moment reading Bernie’s second book on the Neutrality Trap. It resonates. I’m a lawyer who spent a career representing mostly incompetent people and negotiating on their behalf with the devil.
I am also a lawyer who is a sometimes client. I’ll begin with that. I was getting divorced. I was very angry. I hired a lawyer. He is the guy who does divorces at a firm that formerly employed me. I was somadsomad that I spent a long time schooling him on the narrative of my failed marriage. I have a small gift for framing narrative, suffiicient to draw him in. And, in error, he let me run my own divorce. It was a buzzsaw. After flaying, I fired him and hired another guy. The new guy attended the first negotiation after disaster, and came back to me with almost exactly the same property-custody proposal I previously rejected. In a greatly humbled tone, I began to tell new guy what was unacceptable in the proposal. He interrupted me and said, “Sign your name.” And I did. And from that precise moment, I started “winning” the underlying war. (Winning in this context can only go “inside” boxes.)
The experience led me to articulate what, over decades, I had been learning: A lawyer can be sympathetic, but not empathetic. Empathy is too close to subjectivity. What a client most needs from a lawyer is objectivity, always objectivity; sometimes sympathetic, sometimes blunt. This is not easy to learn to learn. Bill Clinton’s lawyers would have done great service had they used blunt objectivity in analyzing the risk of defending a frivolous lawsuit brought by Paula Jones. Blunt objectivity is what Ralph Shapira did when he counseled a billionaire client.
From 1991 to 2012, my clients included people locked in intensive treatment units in mental hospitals. I had a statutory mandate to “secure and advance” the civil and special rights of people with mental illness. It was a wonderful job.
Narrowly speaking, I occasionally assigned myself the to the “commitment calendar,” which happened every Friday in a courtroom closed to the public (Typically I assigned it to junior staff.) This is a forum that can teach objectivity. What a civil commitment client usually needs to hear from their lawyer is that they are diagnosed with a psychotic illness; that there is strong evidence to support the diagnosis; that a doctor will testify under oath to the diagnosis; that there is not a doctor within five hundred miles who would disagree with the diagnosis. And finally, the doctor will ask the court for permissions to involuntarily administer antipsychotic medication—Because the benefit of quelling psychotic thoughts outweighs the risk of taking a horrible tranquilizer. Intended to tranquilize your brain to the point where it amputates your personality. (Unlike side effects: dry mouth, akathisia, drooling, dyskinesia, the intent of the medicine is to tranquilize your ego in the direction of oblivion. So you can better organize your thoughts.)
I also told them precisely how to win their hearing: Acknowledge the medical diagnosis. Assert your full awareness of the risk and benefit of antipsychotic medication. Iinsist that your rational choice is to refuse medication and stay in the hospital until you stabilize without medication. Almost no one acted on that advice. Now, turning to Gibson’s.
It was the lawyers that failed. Oberlin should sue them for malpractice. The lawyers let the college sedduce them to see this as a free speech case. It was not.
It was a case of reckless participation in an economic boycott of a small business that does the best it can to survive in a college town. At the moment a $5M settlement was in reach, the lawyers should have said “sign your name or we quit.” "Sign your name or you have an irreconcilable conflict with your lawyer." This is NOT a freedom of speech case; it never was. What Oberlin did is a tort that should be settled at the lowest possible cost to Oberlin. $5M is a bargain. Take it or change lawyers. This is what should have happened. As Shakespeare said, “I blame . . .”
Case settled. Fox News suspends its slur campaign. Everybody moves on.
I for one am going to donate a thousand dollars of my meager estate in gratitude for four years at an institution that began with an idea: All people are created equal. Thank you Oberlin for making us all into idealist cranks in the world beyond campus. Next time hire lawyers who cannot be seduced by your idealism. And why not sue the ones you engaged?
Does anyone desire that I elaborate upon the bluntly objective analysis Bill Clinton’s lawyers failed to provide him? Just ask.
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