Washington Lawyer - May 2020 - 52

L AST WORD

LEGAL SPECTATOR
By Jake Stein

I BELIEVE IT
Y

es, I believe everything; you cannot tell me
anything that I cannot believe. That the
forbidden fruit of Paradise was an apple presents
no difficulties to me; nor that mermaids sing when
combing their hair and swans when dying, that
ostriches eat keys and a whale ate Jonah, that a
remora can stay a ship, and the cockatrice, who is
hatched by a road out of the egg of a cock, slay a
man by a glance.

We believe someone with no assets and no job
can make monthly mortgage payments of
$5,000.

-Rebecca West

We believe the Wall Street brokerage house that
claims in its splashy television ads it will wisely
invest your money, while at the same time The
Wall Street Journal reports its loss of $3.2 billion
in subprime loans held for its own account.

Of course renowned journalist and author
Rebecca West did not believe a word of it. She
said it with a wink of an eye. Her comment is
ironic. Samuel Johnson defined irony as "a mode
of speech of which the meaning is contrary to
the words."
H. L. Mencken, the Baltimore sage, had the gift
of irony. He did not like judges (and, on occasion,
judges did not like him), and he had his fun with
them. In his reminiscence titled Heathen Days, he
recalls prohibition in New York City:
That was in the primitive days when New
York still bristled with peepholes [speakeasies]
and it was impossible to get into a strange
place without a letter from a judge. . . .
Come to think of it, the practice of law is ironic.
As lawyers we are prepared to believe everything, just like Rebecca West. We are in the
believing line of business. Where nothing is
certain (the Supreme Court's 5-4 opinions and
3 concurring), we have a way of making anything
plausible.
A prospective client tells us an unbelievable
story. We run it through the conflicts check.
If there is no conflict and the client is what is
known as well-fixed, we are inclined to believe it.
We believe someone who says he is entitled
to a $100 million separation bonus for running
a public company into bankruptcy.

52 WASHINGTON LAWYER

MAY 2020

We believe someone with no assets and no job
should be given a credit card.
We believe people who seek political power
solely are interested in doing so for the good
of the less fortunate.

We believe the three-man compensation committee always deals fairly in distributing the
year-end bonuses.
We believe the evidentiary rules, which declare
that a dying declaration or an excited utterance
is the truth, the whole truth, and nothing but the
truth.
We believe a person who passes the bar exam is
qualified to give advice on tax law, limited liability
partnership agreements, international mediation,
and atomic energy regulations.
We believe someone who is to be electrocuted
and is suffering from a mental illness must be
treated and rehabilitated so he can qualify to be
legally executed.
We believe juries are always right when we win
and wrong when we lose.
I knew a lawyer who believed nothing. His days
were filled with suspicion. He earned his law
degree by going to night school and working
as an investigator for a life insurance company
during the day. He had the persistence and the
tenacity of Barton Keyes, the character Edward
G. Robinson played in the 1944 version of Double
Indemnity.

EDITORS' NOTE: To honor the memory
of Jacob Stein, Washington Lawyer
is reprinting some of Stein's "Legal
Spectator" columns, which appeared
on this page for nearly 25 years.

This lawyer felt inferior to those with better credentials. He should not have. In the trial practice,
a good investigator is worth three lawyers. As
far as I knew, his conduct was ethical, perhaps
more so than those who condescended to him.
He was not cunning by nature, but he felt the
cunning of others required him to resort to being
cunning as a defense. He was not comfortable in
that role.
I also knew a lawyer who believed just about
everything. I once asked him if his trust in others
had been betrayed. He said he could recall only
a few occasions.
Piero Calamandrei, one of Italy's leading authorities on civil procedure, wrote this interesting
musing in Eulogy of Judges:
If a lawyer enters the courtroom armed with
subterfuge and clever dialectics, if he relies
upon the partiality of the judges or their corruptibility instead of relying upon honest
argument, he should not be surprised to find
himself not in an austere temple of justice but
rather in a hall of mirrors like those one finds at
fairs, where from every wall his intrigues return
to him multiplied and distorted. To find purity
in the courtroom, one must enter with a pure
heart. Even here what Father Christopher said
applies: 'Omnia munda mundis.' All things are
pure to the pure in heart.
Looking back over the years, I recall two times
I deliberately was lied to. In one of those occasions, the lawyer in question and I were cocounsel in a personal injury case, representing
the plaintiffs. We agreed to work together and
not negotiate separately with the defendant's
insurance counsel.
One day, co-counsel came to me and said he
had settled his case without telling me - a clear
breach of our agreement. However, he said, the
counsel for the insurance company would not
pay the agreed upon settlement. He wanted to
warn me that I should never accept the word of
those bad insurance people.

This column first appeared in the October 2008
issue of Washington Lawyer.

Washington Lawyer - May 2020

Table of Contents for the Digital Edition of Washington Lawyer - May 2020