As we say goodbye to 2014 . . .
For those of you who are loyal readers and followers of Legal Bytes, you know this is the time of year when I break tradition and write a non-legal, personal and philosophical Legal Bytes post. If ancient Babylonians, who celebrated the New Year upon seeing the first new moon after the vernal equinox, could start a tradition that lasted for about 4,000 years – the least I can do is try to keep up. Although my tradition doesn't date back nearly that far, this post will contain no links to distract you (until the very end when hopefully it won’t be a distraction). Nor will there be any citations to legal doctrine, references or background information. I won’t try to dazzle you with facts or intrigue you with today's news. This is my opportunity to philosophize and dispense my thoughts and opinions – with absolutely no credentials, qualifications or expertise to do so.
There are two traditions I wish to continue, although I did not originate either one. First, let me take this the opportunity to wish each of you, your families, friends, loved ones and, yes, even an enemy or two, a beautiful and joyous holiday season and a healthy, happy new year, filled with wonder and magic, health and joy, challenge and opportunity, and prosperity and success. Second, as many of you know, for numerous years I have avoided sending out mass mailings of cards and gifts. Not only are they too lost in the seasonal flurry or delayed by the strain on delivery services, but the truth is that most of us don’t really need or want the trinkets that never express the real sense of appreciation or gratitude we might feel for friends and colleagues, families and loved ones, wherever they may be. We might deceive ourselves into believing it "personalizes" the warmth of the season, but after a few weeks they ultimately go into a drawer or the trash bin, or they are relegated to a closet filled with decades of Lucite, or sometimes they are re-gifted. In reality, there is nothing really personal about that process.
As many of you may already know, my second tradition is one I’ve borrowed from an old friend years ago, and which was originally intended to replace the mass cards, emails and impersonal trinkets with a more meaningful gift. Each year, I make a contribution to a charitable organization for all the family members, friends, loved ones, colleagues and acquaintances I want to honor, in memory of those I have lost this past year, and in recognition of those who have given me a reason to celebrate – in all, far too many to list and certainly all more deserving of something better than a card or bottle of wine. In that spirit, as I have done for a number of years, I have made a donation to the St. Jude Children's Research Hospital – my way of trying to help some children in need who might benefit from the kindness of a stranger. Sometimes, random acts of generosity and kindness can bring surprising results – whether a smile, an unexpected warmth of spirit, or simply knowing it’s not all that difficult to do something to help make the world a better place – even just a little. Try it sometime.
So on to philosophy. Please pull up a chair, put your other distractions away for just a moment, pour a glass of your favorite beverage, sit back and enjoy . . . and as always, thank you.
When I thought about this year's "philosophical" posting, I reflected on the events of 2014, both personal and around the world. So much of the world is in turmoil. There were so many natural disasters and accidents that we cannot control, that we might be tempted to forget there is still so much inhumane treatment of other living beings, warfare, poverty and hunger that we might be able to have an effect upon. There is simply too much benign neglect or indifference. Perhaps we have become de-sensitized because of the incessant barrage of news coverage of atrocities, incidents and violence. Whether intentional or unwitting, active or passive, malicious or benign, there is still too much hatred being taught to children around the world, too many acts of prejudice offered as an excuse for violence, and too many injustices used as justification for condoning inexcusable treatment of others. Actually, "too much" is probably an inappropriate term. If we can use a phrase such as "zero tolerance" for drunk driving, how can we not adopt the same standard for the way we need to treat each other. Is it the same thought process that cannot really explain why we use tranquilizer guns for animals, but real bullets for human beings – unless we accept the fact that we really do want to hurt another human being. We seem to have forgotten, or we simply ignore, the value of diversity and tolerance. With more information at our fingertips than any other time in history, it sometimes seems we have still learned little from the past – or have we chosen to ignore the past?
This year witnessed my own personal loss. After years of declining health and increasing senile dementia, my mom passed away at the age of 93. She didn’t always have an easy life, but the last years were richer with grandchildren and a great grandchild, and hopefully she was well taken care of as her physical and mental health declined. After she passed away, I recall taking comfort in a book the director of the funeral home gave me: The Orphaned Adult: Confronting the Death of a Parent by Marc D. Angel. It was strangely comforting, helping me understand that the lack of physical dependency as an adult doesn’t necessarily change the emotions and feelings one experiences from the loss of a parent – knowing, even as a senior citizen, that a person can still be an orphan!
Indeed, there were numerous tragedies, major and minor, personal and global this year. We don’t have to look farther than today’s newspapers or blog postings. So if you stop reading now, you might think this is an "all hope is lost" message; but please don’t stop reading. It’s not.
We all suffer adversity and, yes, the world could and should be a better place. Legal professionals try to make the world better by respecting the rule of law and participating in systems they hope will achieve some measure of justice. Medical professionals try to treat patients, find cures, and rebuild broken bones and broken hearts. Musicians fill the world with joy. Authors and film-makers help us gain insight and entertain us along the way. Builders and plumbers and electricians give us comforts we might never knew existed without their skills. Teachers illuminate the minds of young and old. Truth be told, there are more people doing good, more people helping others, more people trying to make the world a better place. But that doesn’t make headlines, does it? Newspapers aren’t filled with stories of Lorraine who gave a homeless man a few dollars to buy some soup yesterday or Rafael who gave an unemployed single mother a job he really didn’t need to fill, so she could support her family. We don’t broadcast the fact that our police, firefighters, members of the armed forces and so many other public servants tirelessly risk their own lives and well-being every day, in order to serve us – often under difficult circumstances and sometimes at the expense of their own safety.
Sadly, we have found no way to regularly and publicly express our thanks or appreciation to those who help make or keep this world a better place, every single day. Perhaps if we did, more people would want to do good than those who appear in headlines!
Let me give you an example. In my career as a commercial-transactional lawyer, I have had the privilege of working with many great business people, as well as legal mentors and colleagues. I’ve almost equally divided my legal career between being an in-house, corporate lawyer, and an outside (dare I say out-house?) private practitioner. Among other things, my work has provided me the opportunity to handle and negotiate probably thousands of deals and contracts – over the more than three decades of legal work (has it really been that long?). It has required me to review thousands of pieces of advertising and marketing, commercials and product placements, video game and virtual world screen shots, scripts, storyboards, screenplays, and memoranda. My responsibilities often involve not only counseling clients about the legal risks, or preventing legal or regulatory woes, but also considering what the right thing may be to do in particular situations. While I am careful to separate the imposition of legal discipline from personal or commercial opinion or observation, I hope my clients and colleagues will attest to the fact that I am hardly shy about offering my opinion when and if the situation warrants. I would like to believe, as do others that serve as my role models, that being more than just a legal representative – being a true counselor and advisor – is something clients value.
So what’s the point. Well, a number of years ago someone wiser than I pointed out an interesting fact and a corresponding dilemma. Almost none of the contracts, transactions, deals, reviews or matters that I worked on resulted in contentious proceedings that required resolution through litigation, enforcement proceedings or other dispute-resolution intervention. I wasn’t alone. There are others in my profession – indeed in every profession – who pride themselves on being careful and practical in their approach. They want to help, not simply win. Many work steadfastly to be sure parties actually understand contract expectations. They don’t shy away from negotiating difficult areas, and in some cases advise clients to walk away from irreconcilable differences before entering into the agreement. Those who didn’t listen often learned these were the same issues that, when they arose, not surprisingly ended up costing thousands more in legal fees in order to resolve conflicts that never should have occurred.
The dilemma? How do you "value," or even measure, NOT incurring the costs and expenses of litigating a dispute? How much is the time and effort expended to avoid a problem worth? Helping a client avoid paying for a mistake is often met with “why are my legal bills so high” – not with thanks for saving me 10 times as much in court! Don’t get me wrong. Neither I nor my colleagues are perfect. But experience and a degree of caution, mixed with some practical wisdom and common sense, deserve at least some consideration. Business people are often paid to take risks, lawyers are often paid to help prevent them. As with all things in life, there is a healthy balance, and it is often prudent judgment and a collegial working relationship among the disciplines that strike the right balance.
Like good deeds that happen every day, there is no really smart, effective, meaningful way to convince someone that the contract you helped draft and negotiate actually saved them money by not having a troubled relationship ending in litigation. Even after decades of non-contentious, dispute-free relationships, commercial lawyers are only as good as their last deal and as effective as their best discount in helping craft a successful relationship. So it is, too, with those billions of good people on the planet whose daily good deeds – the simple everyday things – help make life a little better.
Perhaps a poor metaphor, but think about all those things that are un-noticed, un-rewarded and in many instances unremarkable. But they happen. There are people, good people, who give their time, their effort and skills, their money – and often at the risk of their lives – to those less fortunate or in need. Whether trying to feed the hungry, educate the illiterate, house the homeless, immunize the population or save the planet . . . some people simply don’t need excuses to do good things. They are trying to make things better – one human being, one animal, one tree – one at a time. Think people are more important than animals, and animals are more important than trees? Really? How long would we exist without chlorophyll? We are in this together. But that isn’t the point, is it? Our natural tendency while reading these words is to prioritize or make judgments. My priorities are better than those of others'. My way of life or view of the world is better than those of others'. Why should you save an animal or a flower, when we can’t even feed starving people or save so many tortured individuals?
I believe the answers lie in some simple beliefs. I believe that diversity allows us to see the wonders of others and appreciate how much we can learn from each other. I believe that tolerance allows us to accept others, celebrating their differences, rather than despising them or seeking to change them to our ways. I believe that forgiveness is a choice we make and one we hope others will remember when the mistakes are ours. I believe that respect is an attitude, manifested by behavior that allows us to avoid doing harm, and enables us to appreciate the values of others.
I believe we can make a difference, and by living our beliefs and passing them on to others – not only in words, but also by example – we build a foundation for trust and friendship that allows people to collaborate and work together, in some cases to become lifelong friends, but most of all to do extraordinary and wonderful things that make all our lives better.
No, we aren’t perfect. But that isn’t a reason to give up; it’s a reason to try harder. Trite as it may sound, random acts of kindness do work. Say hello to people passing in the street. Give something to that homeless person – yes, they may buy whiskey. But they also might buy some warm soup or socks or someday repay the kindness to another if they can. Take a minute to assist someone else who needs help. Smile at people for no reason – they may think you are strange, but it may be contagious. I know this isn’t as easy as it may sound and I am not as good as I should or could be either. But I hope to try harder, starting today. I don’t know if any of us possesses the greatness to change the world, but in this age of crowd-funding and crowd-sourcing, what if we decided to harness the power of the "crowd" to try to do good things.
So as 2014 comes to an end and we get ready to push in 2015, I am reminded of the lyrics of Michael Jackson’s "Man in the Mirror" that tell us that "no message could have been any clearer. If you want to make the world a better place, take a look at yourself and then make that change!"
I want to take this opportunity to wish family and friends, colleagues and acquaintances, clients and adversaries, those who know me far too well and even those who don't have a clue how they received this posted message, a holiday season and year of health, peace, comfort and joy. May those who love you come closer and those who dislike you forget why. Most of all, I wish all of you the extraordinary gift of health, happiness and peace. Warm regards for the holidays and best wishes for the new year.
Sincerely – Joe Rosenbaum