The Happy Lawyer, Introduction–Part One: Orientation

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Michael Sean Quinn, Ph.D, J.D., Etc.

2630 Exposition Blvd  #115

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com

Preface

 There are lots of books and articles focusing on a whole array of “happiness topics”:

 how to think about being happy or happier, 
how to become happy (ier), be happy(ier),  stay happy, become more happy beginning from at the point of already being quite happy,
 how to conceive of, or grasp the image of, an  aim for the happiest of all conditions,so on, and on, and on.

Not surprisingly, a number of these “[phony] treatises” or more likely “glossy mag” contributions have the making of money in mind.  They are usually not genuine wisdom.

It should come as no surprise that none of these really focus on the problems of  lawyers, however,  and–“God knows,” say the authors–“for the most part, they [the lawyers] need it or, at least, could use it. If only they would pay enought attention.  But, oh, not that lot.”

 In 2010, a couple of law professors wrote a book with part of the above title, The Happy Lawyer (Oxford University Press). They taught at my law school, University of Missouri at Kansas City, though I never knew at least one of them. Their project was to indicate how lawyers may think and behave to obtain more happiness than they have.  They are not aiming at the general populations or specific groups other than lawyers. 

They are not trying to sell some specific, guaranteed, wild-ass-therapy, or even Dr. Phil.  They probably even agree that some lawyers can also be not only be persons who are in wretched shape for reasons entirely independent of being lawyers.  In fact a person’s being a lawyer might even mitigate his low rating on a “happiness scale.” 

The themes and content of this book
are extremely important for any lawyer trying to analyze his/her life as a
lawyer and make it better from a personal point of view. Of course this is not the only place to find them formulated in different and/or more diverse terms, i.e., for more types of people.  Whether the book is
right or wrong and/or involve important quandaries are also important questions–and in Part Five I will argue that at its foundations the authors have made at least one significant mistake–part of the empirical evidence is helpful and the recommendations, advice, or suggestions make it a consciousness raising piece of work

I. An Introduction: Part One

 

Now, let us begin again.  The authors are
trying to provide various types of information to lawyers about
themselves. In addition, and this is the central point of the book, they
are trying to give advice and make recommendations regarding how at least some
lawyers and some law firms can make themselves happier. Some of the empirical points in he book come from
systematic and objective empirical or allegedly such, mostly “university-based,” some of their personal
observations, some from others, and so forth.  Some
of the claimed empirically based information comes from the new “sciences” of body, brain, an behavior experimental research. 

The book is
about lawyers and law firms. It is about the mild and severe negatives in the
lives of lawyers–he kind hat make them unhappy, And it about how recommendations and advice how to  overcome at least some of hem. This series of blogs has three dimensions.   

The first describes some of he empirical evidence.  Some of that is summary and some is critique.  That part of the book  focuses on some
sciences–physical and social.  I will mostly discuss conclusions of some of the social studies; I will not discuss the physical.  I don’t see it helping lawyers (or anyone deal, in  practical ways with problems of unhappiness in he here and now–interesting those observations and methods are now and may be fore the far distance future.  (Then again these studies may suggest helpful drug prescriptions, but that topic s not really discussed.)

Second, buried
in all of their work is some philosophy. The philosophy is significant.

The second
dimension is a set of empirical facts oriented to lawyers. None of the
“facts” are, “Precisely this happened,” or “Happens
all the time,” or, “Will uniformly happen.” Instead, they are about the
usual, the frequent, the statistical, and the important tendencies. 

Third, there is
the advice given. Much of it is for lawyers and some for law firms. Much of it is
derivative upon the empirical. “Here is what you should do to be happier, given the evidence there is.”
“Find ways to overcome or separate yourself from the usual strings of events that hurt, etc.” Along with this,
there are tables or charts suggesting how one might move him/her self along the
way.

In this blog, the reader is in Part
One right now.  Part Two  discusses some of   the empirical conclusions presented. Part Three focuses on their
directives and advice for lawyers. Part Four discusses advice for law
firms. (There is little to no empirical “back up” for the discussion of firms.  Still, it hard to imagine that some of the images and advice would not be helpful.)

Many parts of these discussions will be brief summaries attempted by me, and I will comment on some of them.  I try to separate the statements of the authors from comments of mine.

Part Five will be a discussion of what I take to be some theories underlying the book.  That is mostly me talking about them, their assumptions and inclinations.  Some remarks of mine about various points will be included in all the discussions, here and there.

As already indicated, I will be
commenting on some of the authors’ theses and outlooks; however, this blog, even when taken as a whole, is not
intended to be a book review.  It is intended to participate in an extraordinarily important discussion.   

Here is an example that may confuse the two intentions:  the book has several of what I will call tables or charts with various
normative questions, hints, and theses.  Most of these are questions those who try and use the chart are to ask themselves.  This is an extremely important part of the
book. As a recommendation of
“ways out” of, for example, depression, or for example, as routs to–at least more–happiness, the charts
fail. They might even be thought of as dangerous.  They are, however,  interesting topics for educational devices.   No one should try to apply them in self-improvement situations; self understanding leading decisions for improvement  frequently fails; cannot it cannot done and trying to do itcould easily lead to self inflicted harm.  “If I cannot do this, I guess I am really as worthless as I often feel about myself.”

Many of the
author’s most important theses are implicit. I plan to ignore the difference
between the implicit and explicit. Of course, I might be quite wrong. What I claim are implicit theses or arguments may not be either at all.

We now turn to the next chapter of this particular blog-series.  Insurance lawyers might call the next section “Causes of Loss.”  Come to think of it, so might litigation lawyers.

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The Happy Lawyer–Part Two: The Empirical

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Michael Sean Quinn, Ph.D, J.D., Etc.

1300 West Lynn #208

Austin, Texas 78703

(o) 512-296-2594

(c) 512-656-0503

mquinn@msqlaw.com

II. The Empirical

The reader may skip the bracketed small type,if s/he wishes. 
They are my comments.(Maybe there’s too many of them,
and some are too long, anyway.)

Here are some of the assertions the authors  take to be true and empirically (or objective evidence)  based:

 People in general are no happier than they were a half century ago. 

Lawyers have it harder. Seventy percent (70%) would not choose to be lawyers if they could choose again. 

Half of all lawyers (5%) would discourage their children to become lawyers. 

Over one third (33+%) of all lawyers who start at big firms  leave their first firm within three (3) years.

[MSQ: Is any of the reasons that we had to do things resembling always mention any number twice–once in English and once in number symbols? There are many burdens hugely more weighty than this, but one gets the idea. This looks like a trivial point, and literately it is, but it is also a symbol using the trivial for the extraordinarily burdensome analogue.]

Lawyers suffer from exceptionally high rates of depression, alcoholism, and suicide.

[MSQ: I can testify to both the first and the third, though in my case, both of the first two were resolved, at least temporarily, perhaps by spiritual gifts, meditation abilities–something the authors recommend–not being one of them. Still, one wonders about the population with whom lawyers are being compared. Anyone that has attended regular AA meetings can tell you that the number of lawyers is not all that high. Maybe they are just too proud to attend. There is after all, in larger cities, special meetings for lawyers, but they are not sufficiently frequent. Again, these downtown meetings,often in one of the conference rooms of a large firm are not well attended.  Perhaps, the claim abut “exceptionally high rates” is over done.  In addition, I have been around the legal profession a long time, and I have not personally been (made) aware of a comparatively high suicide rate, though I seen one from times to time.  I see more news reports of lawyers getting murdered than I get informal news about  lawyers committing suicide.  Of course, the latter may be concealed somehow for a whole variety of reasons so my observation is not to be trusted.]

Lawyers over 50 and work at a small firm, solo, or part time; or work in-house; or work for a government agency, are probably happier than other lawyers. The least happy, are those who work for large firms.

[MSQ: I can testify to the first of these for some of us.  Many lawyers in solo practice have difficult making ends mean; many cannot generate business; many are stuck with types of cases they don’t like; and  many get stuck with cases they hate.   In addition, many of us look at   some other lawyers that remained in big firms, and wish that we had had  the self-discipline to keep going at such places like Dewey-Balentine–at least until recently.   [“Oops”, as the Governor of Texas once put it: not that name. Try “LeBoeuf.”]

Women leave the profession more rapidly than men do.  At the same time, women seem more satisfied with their career than are men, though the unhappiness of the relevant population are black woman in the mid-associate ranks.

[MSQ: I can testify to this, in tiny part. My “close in” observations tend to confirm the first sentence, but not the second.  At the same time, I have no evidence against it either. In addition, they often stay gone longer from the legal career, unless they are single mothers of relatively modest means, at the most.]

Happiness levels for women depend on the type of work they do, more than is true for me 

Men are happier about the work-home balance than women who work full time. 

[MSQ: Of course, men are often not the ones who is doing the real balancing.  I would be shocked if the Team’s claim is true.]

Ethnic and racial differences, influence the numbers.  Black women are less satisfied that others when they are in middle positions in large law firms.

Graduates of lower-ranked law schools rate higher on the happiness scale, than those who graduated from high ranked law schools.

[MSQ:  I’m having a hard time figuring out why this would be true

 Lawyers tend toward the introspective and toward pessimism more than the general population. 

[MSQ: For a variety of reasons, I believe that this proposition is false.  First. pessimism is hard to distinguish from prudence and caution which all lawyers must have : “You may want to settle because you may lose this case, and if you do, you may be responsible for paying the other party’s legal fees.”  Similar points can be made about introspection.  If a lawyer does not think inwardly about strategy, tactics, dimensions that which is facing the clients, his own ethical duties (as necessary), s/he would be a poor lawyers indeed.  See Many of the lawyers I have known over many years are not introspective in the sense that this is a description of a personality, taken as a whole.  Many lawyers, especially male lawyers, are “Hail Fellows, Well Met.” Such people are (at least partial) extroverts.

Church membership tends to increase happiness, as does more than a touch of hedonism.  Integrated groups like churches that encourage relatedness are like  churches in this regard. 

[MSQ: Aristotle was right about the second, at least amongst real “adults.”] Satisfactory close relationships increase happiness. MSQ: Few are happy when in a bitter divorce, a child is in rehab, or a close person is quite,  injured, or recently passed on.  By the way, belief in God or god or gods is not crucial to this function of church membership, in fact if might retard the function.]

Wealth is vastly over estimated. Too much money often contributes to less happiness than secure and plenty of asserts. 

[MSQ: I can testify about this, though constant worry about enough money does not make one happy. There is much to be said about the life style or minimalism, or frequent meditation or spiritual retreats. Many good thing can be said about silence, perhaps.]

Trusting and being trusted by some people is a key component of happiness. 

[MSQ:  As long as the right people are involved. The termination of trust can be for damaging than there being a trust relationship.]

Failures contribute to unhappiness.

[MSQ: There are exceptions. Making mistakes, under circumstances can be very educational. Aristotle is right again. Too may errors, even if they are educational, don’t help. This also applies to the wrong type of errors. If you have just lost or caused a loss, especially an expensive loss, you might not focus on how much you’ve learned]

People do a rather poor job of predicting their own happiness.

[MSQ: It is amazing how many people refuse to believe this, even if the arc of their friends tends to confirm it or if their own record or prediction confirms it.]

Having control over professional and personal functions contributes to happiness.

[MSQ#1: Or learning how to live with some dependence. Co-dependence is not always a bad thing. Consider the married couple: He depends on her and she on him. This could be work related; it can be emotional; it better be–at least usually–for sex, and so on at great length.]

[MSQ#2: The idea of “control” over one’s profession, is a murky idea. All sorts of things influence having a sense of control over virtually anything, including one’s profession: family needs, self-discipline, self-needs from outside the profession, feelings about bosses, tolerance of assholes, amusement about them, never having learned how to “shrug” and doing it, practicing appropriate depths of  breathing, a sense of the comical, inclination to satire, inclination to laugh–often privately–at the foibles of hubris. Of course, from a more immediate perspective regarding control professional control are many examples. There are judges, their schedules, opposing counsel, co-counsel, hierarchy, clients and their personalities. These all pertain to the nature and availability of control. So what does it really mean to say that control influences happiness? What if I were to say, a genuine right to happiness for lawyers is to study the great joksters of today and the past, appreciate them, and step inside them (as it were)? Oh yes, and study the ancient and the current literature of stoicism and embody it into your soul. The literature is not that hard to grasp, etc. Aha! I forgot. Try some psychotherapy.

[[MSQ#3: It is not the case that having control over people increases happiness on anything like a universal basis and maybe not even in a huge majority.  When wife controls husband, the price of having control may be very high, an it is not the case that all of the problems result from husband’s resentment.  In addition, having control means that the person in control is going take the blame for mistakes.  And “blame” is not a simple idea.  The person who is not not in control may keep a “file” on the perceived errors of the person who is control carries with it responsibility.]

[MSQ#4: For different reasons, control over career choices can lead to despair. I know a number of lawyers who took control of their careers, went solo, and ended up wishing they had developed the stamina and self-discipline to stick it out with the big firm. Here is another view: the weight of–at worse–dictatorial power–or snobbish elitism fades after a few years in a large law firm, unless you will the existence of those powers or you are weak.  Even then, those in charge–the bosses of mature adults–become less sergeant-to-private and more seemingly convivial.  Lording it inferiors who are plainly actually superior is less fun and more dangerous after time has passed.]

[MSQ#5:One could easily imagine a by internal comparison, so-so lawyer handling mid-sized estate matters from beginning to end in a large and even prestigious firm, where they would be done–at a relatively modest fee–for executives and some customers of a large client. Such a person will probably  be treated reasonably well on the whole and not contemptuously, will probably not be sneered at behind his back (much, and then only by contemptable outliers), but will not rise to any high prestige status within the firm and may not become a senior partner (or whatever the highest ranking party is). Such a situation may be perfectly satisfactory to  a modest fellow who is not burning with ambition or legal-career ambition.  He does not need a solo practice of his own. He may enjoy his station. Neither he nor his wife need or want to live on an A+ street; a B street may be fine. The wife has no desire to be in the Junior League. He plays golf, if at all, on municipal courses. The couple can put kids through college without their amassing enormous debt and ultimately retire with a decent financial nest.  They vacation frequently in X-ville, but do not have a summer place in Aspen.  This man does not fit the Team-paradigm of the lawyers they focus on.  Whatever is “said” such a fellow has no concete portrait in the book under discussion.]

[MSQ#6:  It is worth pointing out that not all senior lawyers in large law firms end up “filthy rich.”  They end up wealthy, in the absence of gambling problems, too many “girlfriends at once or over time,” money grubbing “girlfriends,” too many children by a once beloved spouse (or more), the alimony owed the spouse that kicked you out, and so forth.]  

The authors assert that as a matter of empirical fact, across all cultures, there are six factors which contribute to a person’s being a “thriving person,” and such a person is “generally one who is satisfied with his or her life.”  Here they are:

security
autonomy
authenticity
relatedness
competence
self-esteem

[MSQ# This is a hard list to dispute. Still, how many dimensions are there to security?  Physical, monetary, job-related, personal connections?   Authenticity means, perhaps among other things, deciding for you self who you really are and going after it with zest.  The former of these two might be called “self-insight;” the second might be called “self-construction;” and together they might be called “self-determination.”  How much self-determination is needed to be happy or happier?  (Self-determination does not come only in A v. F grades.) 

Twenty years or so ago, I wrote the best prose I had ever written. It was a flop. The same happened to me in a lecture two years ago. Both of these efforts manifested authenticity; neither suggested to me that I was incompetent; neither damaged my self-esteem about certain things, anyway; but its being a flop undermined my own sense of authenticity to a considerable degree at first and then less so for other  various periods of time. I felt like I hadn’t really found myself.  Actually, I was wrong, but I felt like I had not, an that was what mattered.

The facts are quite clear, really, those who constructed the empirical system upon which the Team is depending, as plausible as it looks, needs further study, before it is reliable for happier-creating (or, happier-pursuing, etc.). First, these six factors need not go together. Second, they can last for short times or long. Third, they come in degrees. Fourth, which ones render one happier than others? Do they work differently for different people?  If they are not flying in a flock, which one (or two) generally (or should, or could) come first, according to the world-wide evidence, if any? If one can chose which one(s) come first, how should someone make these decisions?  Fifth, does self-help work well at making one’s self happier (or happy),  from the empirical point of view?  If it does, how does it mix with the components on the  “List of  Six.”  Obviously, and sixth, common sense tells us that no one can improve at all of them all at once. It also tells us that some of them will be harder to develop than others. Seventh, it tells us that different people will achieve some but not others, and finally, Eighth, common sense also tells us that for different people, a regime of one self-helping his/her toward happiness must  something something like congruence with different types of persons, in different ways, and at different times.  In my opinion, a person thinking apriori will not be able to come up with good and dependable answers if he or she, works alone, starts with questions in groups that are complicated or tangled, does not get outside advice, e.g., from a person with whom the striving self-helping person, is not willing to change their mind periodically, and so forth.

The Team also provides a list of factors they believe, at least, tend to make lawyers unhappy. Some of them affect everyone.  In a few cases, these are inferences or guesses of mine as to what they think. I have marked them “MSQ.” In any case, here are some key phrases, but not whole sentences:

“Life on the hedonistic treadmill.”

substantial lasting real personal danger [not only to one’s self but to the closely related–“soul mates”? [MSQ]

substantial lasting pain [MSQ: Id.]

lasting and high level ambient noise

work based misery (may go along with other sources)

not loving (or close to loving) vocation

overwork. . . .rigid billable hour system

superiors demanding performance at off-times

making the demand

performance itself

(technology is a contributing force)

loss of a sense of social significance

feeling like the job is meaningless,

out of touch with one’s true self,

having sought to be part of  a “noble profession” and having lost that conception regarding one’s law practice,

loss of passion for the law

feeling of not measuring up to one’s own specified potential or performance standards [MSQ]

having absurd standards for oneself [MSQ],

loss of idealism (if it earlier existed)

sense of declining “professionalism” in the lawyer culture

sense of growing incivility among practicing lawyers

inability to shrug off incivility [MSQ],

lack of appreciation for the use of the “nudge” in dealing with important decision making [MSQ],

lack of respect for the essential role of negotiations in law practice,  [MSQ],

inability to grasp negotiations, and really understand it [MSQ]

acquire the sensibility and skill to be able to negotiate well, at least in theory and to no more than a limited extent in practice[MSQ]

really know that s/he’s  got it and therefore have thorough and in depth self-confidence

and more.

[MSQ:  What if the empirical data indicates that no more than 40% of the empirical propositions were supported by evidence. Would one be discouraged about the reliability of the data?  With respect to recommendations as to how to make a lawyer happier, or how each can make him/her self happier, what if it had only a 40% achievement record?  Of course, that is the wrong observation.  If it had a 40% rate, but no other approach or approaches has higher rates–but had only substantially lower rates–then the leading program would be the only one to work with.]

Now we turn to the advice and recommendations.

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The Very Unhappy Lawyer-Part Zero

The Very Unhappy Lawyer-Part Zero

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Let us start with an oft-made assumption in the social “science” of happiness studies and advising.

The idea is that there is a “happiness set-point” for each person. A point, and therefore that “point” is “set” in the sense that it does not change. That’s the reason it’s called a “set point”; it’s fixed; if the point were not fixed, it would not be a set point.

The existence of a real happiness set point is that no matter how hard one works at improvement, the level of happiness will not change. We all know that this is not true.  (Of course, the existence of a set point would also entail that one could not make one’s self  less happy, and we all know that idea to be absurd.)

So there is no set point. There is, however, a “quasi- [or, “weak”] set point,” meaning that one will tend toward that point, either from being above it or being below it. The trouble with this idea is that it is obvious that the tendency will be distinctive for different individuals (or classes of individuals). This difference is complex. For example, what it takes to speed up or slow down the tendency will differ. In addition, the length of time for the tendency to move from point A to the setpoint will vary. And it will vary for different people depending on the circumstances.

Moreover, there may be multiple setpoints for any one individual. Suppose a person has five different powerful emotions which don’t depend on each other completely. One of these might be wrath, another might be euphoria, a third might be emotions associated with laziness, the joyous emotions that come with, say, arson, and so forth.  Each of these elements of a complex system may have a different set point.  And they may be interdependent, so there may be what might be called “complex interdependent set points.”  They are still set points, however.

The stronger the tendency to return, together with its likelihood, together with other factors, determine the nature and probability of success in happiness improvement. Of course, if there are set points and if there is always a return to them, and if the return happens relatively quickly, it is not clear how reasonable attempts at happiness improvement really are. Trying such a thing may be what some social scientists, namely economists, call “inefficient.” Who knows. Maybe knowing it can be done and that one’s set point is not self-determined may be a relief.

Substantial changes, which do not revert, completely undermine the whole idea of set points.  A conscious sense of well-being and a sense of its opposite can be accurate; they can be achieved; there can be positive and negative changes. None of this can be true if there really are set points. It is true, of course, that all people start out on the happiness scale, and many of them start out at different points.  Most, though not all of them, can change with the right influences.  The whole enterprise is to find the right stimuli.  (Sadly, in many cases of no-change-quite-likely, the problem is one of biology or physiology about which nothing can be done. Even where the idea of fixed points at the level of biologically caused misery, there is–overtime–probably some combination of biological prescriptions–drugs–which can change things to some extent at least, and improve the situation without collateral damage.

Consider the following which doesn’t involve such drastic physically-based curses.  Suppose a person’s set point determines 80% of his happiness level, as at least one study has said it can be (Levit & Linder, THE HAPPY LAWYER p. 133 n 25, reporting on contemporary “findings”), and further suppose that the person in question has a very low happiness position, say 2 on a scale of 1 to 10 the probability of happiness improvement is very low (Do the arithmetic for yourself.)  Of course, most people state in interviews that their happiness level is above average–an idea in and of itself, and probably false.  (This excellent, in its way, and a restrained book written by these two professors was discussed at length in this sequence of blog-essay previously.)

In any case, really unhappy people don’t really have a chance of getting to continual enjoyment, much less exuberance, and much less joy, if the setpoint has a good deal to do with continual happiness levels.  Of course, professionals of some sort (maybe) specializing in and perhaps promoting happiness treatment, the sales of books, or both have every interest in ignoring this fact, or, if they don’t ignore it, they suppress it for financial reasons.

This whole idea has come to have a good deal of popularity in the “School of Positive Psychology,” an approach that principally studies the positive side of the human psyche, as opposed to the negative, which, the School says, includes a large group of psychologist includes Freud and other students of the bleak and troubled side of human nature without their having a general intellectual commitment to the proposition that things can always be made better.   

Instead, the Positive School adheres to theories that may,  to some extent, prescribe that people can transcend negativity, i.e., unhappiness, without probing the unconscious and that people can proceed on their own by following some relatively simple steps with considerable energy, usually after having asked themselves a concatenation of apparently probing question.  (Often the questions, the steps, and introductions to their theories are to be found in books a particular advocate of a version of the Positive School has written.    In other words, the Positive School “accentuates the positive,” in the words of the famous song.

 Its ideas have in recent years been called the “hedonic treadmill,” or “hedonic adaptation,” etc.  I haven’t seen any arguments to the effect that the words “treadmill” and “adaption” have strikingly different meanings or, at least,  connotations.  The underlying idea is also suspect.  The idea of hedonism comes from a branch of ancient Greek philosophy.  It was the idea that the major intrinsic value was a pleasure, and the good life was to be found in searching for it. To compare that to a treadmill would be inconsistent with the real view.  It would be a way to say the view was false.  The idea of adaptations is quite the opposite.

And it relies upon the idea of there being set points.  Although it presents itself as science, and some of it is, the whole approach has misnamed itself.  Setpoints are, by the definitions, built into the words and a consequence of their origin in set theory is fixed. They do not go up and down.  They may appear to go up or down at different times, but the actual setpoints do not. That fact does not make the theory impossible.  It simply makes it confusingly and misleadingly misnamed.

Another example of false nomenclature is the idea that setpoints are really areas, not points. They are like lots with fences around them, which have narrow gates. There are two streams running through the property and you can paddle out in either one, but only one at a time.  In either case, the lot is such that it’s hard to get out any distance, but the current will always take you back. One cannot really escape.

 Some members of the School use thermometers as the analog, but for obvious that analogy is false.  Temperatures go up and down.  That’s why they are useful.  They are not set.

In any case, some members of the Positive Psychology School hypothesize that set points have, at it ere, few limits, but can rattle around in an enclosed area.  It also conjectures that these points can rise or fall in a good way,  and then return to the set point in the short run.  The real idea here is that happiness can deviate from the setpoint for a relatively short period of time but will always jerk back–or “travel” back in relatively short order.  This talk is really nothing but a distinction between appearance and reality, and it conceals this divergence.

In my experience, the whole idea of set points, a notion taken over from ideas of mathematics and symbolic logic should be discarded in intellectual contexts like this one. It does really fit into social studies well, and certainly not when dealing with happiness issues. The whole idea should be burned at a stake. 

For those readers who are Christians, and probably Jews as well, the idea that the Lord God Almighty creates people who are miserable and whose happiness level cannot be radically improved, is a profound and unworkable paradox. (Paradoxes that are “unworkable,” or of course, are contradictions.)

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The Happy Lawyer: Recommendations & Advice

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Some General Approaches

Part IIIA

I. Preface

I will say a number of critical things about this part of THE HAPPY LAWYER. I ask the reader to be clear about who or what I am criticizing here. I admire much of the book and, I think, all the work of the Authors. My criticism is of the underlying ideas. They have been important in Western psychology and philosophy until the Twentieth Century, and most of the criticism set forth then was misguided bullshit. The problem for our Authors is that the underlying ideas are so pervasive, in a large majority of Western Thought, about the nature of man and about necessary, proper, and effective responses. Unfortunately, even most of the critics of the “Pervasive Theory” who got their criticisms right, used a vocabulary and set of ideas that most of us could not understand. That is certainly true of me. This book suffers from none of those problems. 

I. Some General Approaches

Some of the “You stand a good chance of making yourself happier if you work at it” idea: is tied to the six most important universal facts about human “happiness needs.” Without their participation in–or integration into–a person’s very being, s/he will be noticeably unhappy. The authors assert that these are universal human needs. I have already listed them, but here is the list again:

SecurityAutonomyAuthenticityRelatednessCompetenceSelf-Esteem

It seems obvious that if these are the “universal needs,” they are “universal” because no one can “thrive” without them. Hence, in striving to make one’s self happier, one should try to attain all six of these.

MSQ: It is hard to resist the idea that these are important states of affairs, as far as the psyche is concerned. Many of them are involved in the happiness of many people, most of the time. Nevertheless, for me, they are difficult concepts to work within a “make yourself happier program.” How does one determine what one is pursuing? What is the real meaning of the term “autonomy”? What is the essence of the concept or idea?

MSQ: When I play chess, my self-esteem is diminished; I have very poor concentration. Would it be a good idea for me to play chess whether I like it or not? Surely I can handle the suffering inflicted on my self-confidence in this concept, to gain it perhaps in another way.

MSQ: People ask me, from time to time, how I have stuck with jobs I did not like. I have said to them, “You do not have to like what you do something all the time, you just have to do it.” I’m right about this, at least some of the time, and what I say hinges on the “have to” situation, together with the degree of difficulty of “liking it,” and, in addition–on whether anyone is depending on you, and if so, how many, etc.–and what will be the consequences for them if I walk out. This is the kind of beating self-esteem must take sometimes. Indeed, if sometimes one does not put up with it, one’s sense of relatedness and authenticity will be injured. What I have just asserted is true for all of the combinations of two or more on the list. Of course, anything can be overdone.

MSQ: As for my experience is concerned, gloominess and warrantless criticism, even from “idiots,” are both very difficult to handle. They are hard for me, even though I belong to a network the main characteristic of which is relatedness. Thus, one of the principal causes of unhappiness is depression. I am not at all sure how its opposite fits onto what would be the “Big Seven,” if I were right. (Frankly, I’m not sure what the opposite of depression might be if it were anything but “non-depression,” and that idea is not very helpful.) I shall turn to this topic later, but it is not at all clear to me how people can cure themselves, or even be cured, of depression. For me, and for many others, that is one of the great mysteries of getting toward, achieving, and holding on to a happy life. Of course, not all people—and certainly not many lawyers—suffer from depression. Having a streak of the negative is for a lawyer,  a good thing, even if the clients do not want to hear about it.]  Caution and consequently prudence, often a good thing in lawyering, are deeply interconnected.

MSQ: Are there other things that belong on the “Big Six List”? What about the following?

7. Opposite of depression (already discussed)8. Willingness to Sacrifice9. Enviable Stability10. Knowledge11. Rationality/ReasonableAnd, of course, there may be others.

MSQ: In any case, and this is my guesswork, a good deal of the advice the Authors suggest, involves these steps. (1) Set forth a meaning for each of these categories, at least as they apply to you. (2) Determine what constitutes at least a modicum of achievement for you, on each of them, where there is not already satisfaction. (3) Pursue them with the right level of effort for you. (4) Take on—whether one at a time or in groups—whatever you believe is reasonable, after asking yourself appropriate questions and thinking about them.

Now, there is one more topic to consider regarding this list. How can they be focused on one’s relationship to one’s being a lawyer, where, when, what kind, and so forth? Of course, some of the assertions about these questions will reflect both more glitter and more lead than the general applications of the ideas.

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Cyber World Insurance and “Kidnap Ransom & Extortion” (KRE) Policies

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Cyber World Insurance and “Kidnap Ransom & Extortion” (KRE) Policies

The Chubb Group of Insurance Companies has put out a KRE policy that covers both the so-called “real world” and the “cyber world.” As readers well know, I hold distinction in contempt; there is one world and various dimensions. Of course, there are a variety of ways in which the cyber dimension of the world can present itself, video games being a prominent one.  Of course, video games are that; they are games, and they are videos of the game.  They are not “eyes” into a separate reality. Nevertheless, I will use the phrases “cyber world,” “cyberspace” and “virtual world” because of their popular use.

In any case, Chubb has classified this policy as part of a system of policies that it has named “FOREFRONT PORTFOLIO 3.0(sm).” I will focus on the parts of this policy in which cyber coverages are important. The use of computers, digital languages, etc. making ransom demands, dealing with them, and communicating about them are no topics here.

Nothing will be said about real-world kidnapping coverages.  There will be no reference to the seizure of real children. At the same time, in this policy, there is no explicit distinction built into this coverage when used in the cyber-world or used in the real world.  In both cases, some “bad guy(s),” as they are now called on television (and therefore elsewhere, as well) have captured a person and are demanding money for his/her return in exchange for something valuable, usually money.  (Of course, there may be peculiar forms of ransom demands arising out of cyber-world and real-world interactions. Exchanging networks for people, exchanging networks for networks, exchanging the life of a child for a pledge of no-more-hacking, a demand that bitcoins be used to pay the ransom, and so forth.)

Background The prose and organization of this type of policy is of the same format, organization, and to some extent the vocabulary as those policies that are typically in this category but conceived only for the real world. It is a “claims-made policy” with purchasable extensions, either or both, (1) back in time for including more insured events for which there may be coverage causes and (1)coverage continuing forward in time for including more filing claims, repairing damages, accomplishing restoration, etc., but not new covered causing damage.

Claims-made insurance policies come in many forms. The basic idea of them, however, is quite simple. In a claims-made policy, the right to coverage is tied in time to when the covered event causing damage or injury occurred.  That period of time is often one year, but it could be different. Policies that are not claims-made policies do not tie injury-causing events and make claims arising out of them together in time.  A covered event and the injury it causes can be years apart.

The temporal tie between an injurious event, the injury, and the claim(s) can take different forms. Here is an example. Medical malpractice insurance is to be found in the claims-made policy.  If Doctor Diogenes, an amputation surgeon, slices off Larry’s left arm, when it should be the right, then the covered negligence and the injury occur at the same time.  After that, Diogenes must make a claim to  Isabella Insurance Inc. during the same policy period.

Of course, claims-made policies and fact patterns can become vastly more complex, e.g., when the injury is subtle and is not noticed for longer than the policy period.  But none of that applies here. Extortion policies and person-napping policies involve very quick successions of time.

First-party coverage is about losses sustained by the insured.  A helpful analogy when thinking about first-party policies is policies covering tangible property.  There are other sorts of first-party policies, but this is a simple and easily understandable starting point. Obviously, the kinds of policies discussed here are first-party policies.

Various first-party policies have a variety of different provisions regarding how and when they are obligated to pay covered damages.  A few will pay in advance for work that has to be done.  Others pay on behalf of the insured for such work. Some will receive the invoices from vendors and pay those.  The far more common provisions obligation that the insurer need pay the insurer for covered losses the insured has paid form.  For example, if the insurer’s building is tipped over, the carrier would be obligated to pay only if the loss was covered; the insured has paid to repair or replace at least some of it, and the payments are reasonable. These are called, naturally enough, “reimbursement policies.”  Sometimes the insurer is not obligated to pay any reimbursement costs until the job is through, but it is far more common for the insurer to monitor the work of the vendor, or of the insured itself, a pay a bit at a time.

The Chubb PolicyThis point having been made, it is important to note that all of the coverage in the first-party portions of the Chubb policy (with one exception not relevant here) pay only on a reimbursement basis.  This means that the insured must pay his own way down the path of covered situations and then the insurer will pay him for the reasonable expenses it has spent.  Obviously, this is invariably an area of sharp controversy in all sorts of reimbursement policies.

In cyber policies, the definitions are often crucial. This is because much of the terminology is “foreign” users of common English.  The central definition of this policy is the phrase Extortion Threat.  (In this policy, words and phrases defined in the policy are in bold.) It is discussed here only in so far as it applies to cyber states of affairs.  I am leaving out threats made about doing something injurious to solid objects.

There are no insured kidnappings in the cyber world. Executives of  Microsoft might get kidnapped, but that is the real world. Would it be of any interest in the “world” of insurance coverage if a video game got hacked and some character in the game, some avatar named “Schmuck” was “kidnapped”?  For the same reason, it is hard to see how there could be actual, real demands to pay a ransom.  For what?  “I’ve got your avatar, Archangel, and if you don’t pay me a bunch of bits, she will disappear into far cyberspace galaxies a long way away, where you will never find her”?

The idea of extortion, however, works in the cyber world, just fine. “Pay a gazillion dollars into a trust fund at Credit Swiss named “Hackers’ Delight” and do it tomorrow between 1:00 PM and 2:00 PM.  The person in charge of the account is Jack Bauer, ask for him by name.”

 I will be concentrating on some of the substantive parts of this policy, in particular the part that specified what the coverages are, the portion that consists of definitions, and the part setting forth explicit exclusions. There will be little here about conditions, portions of the policy related to conditions, or the declarations pages.

Insuring AgreementsIn any case, here are the subtitles of the “Insuring Clauses,” often called “Insuring Agreements.” They provide a good start for developing an idea of what is covered:

A. Kidnapping, Extortion Threat and Express Kidnapping Coverage.B. Custody CoverageC. Expense CoverageD. Accidental Loss CoverageE. Legal Liability Costs CoverageF. Emergency Political Repatriation Expense CoverageG. Disappearance Investigation Expense Coverage [&]H. Express Kidnap Cost Coverage Hostage Crisis Costs CoverageI. Hostage crisis Costs Coverage

Definitions Cyber policies often have many more definitions than real-world policies do. This one is not very different, except that most of the definitions are easier to understand. In any case, this policy has  approximately 42 definitions, some of which have quite a large number of sub-parts, and only approximately 12 of them have components have parts that are important to grasp to understand the cyber components of the coverage.The key definitions that are noticeably cyber-related are:“Insured Person,” which I will petty much  ignore“Extortion Threat,” which is extremely important when formulated in terms of cyber matters“Computer System”“Computer Violation”“Contaminate” [here applied only to the physical parts of  “Computer Systems”]“Expenses,” in part [This is by far the longest of the definitions, 18 subparts, though not all of them apply to cyber situations.]“Extortion Threat,” [Probably the most central of all the definitions though applicable only to cyber situations involving one or more Insured(s).]“Independent Contractor,” [In the cyber realm.]“Insured Event,” [Applying only, for our purposes, to cyber matters.]“Merchandise,” [Relevant but not discussed here.]“Propriety Information,” [In the cyber realm.]See immediately below.

Now for a look at what I find the most interesting definition of all, the one for the Exportation Threat.  The list of covered expenses for extortion threats is mixed together with other covered states of affairs that result from such a threat.  Most of these are expenses an insured company (an Organization, as the company called it) has to deal with when there has been an Extortion Threat, kidnapping, etc.:  Of course, those expenses must be reasonable.  In any case here are some of them:

security consultant,public relations consultant,cost of relevant advice,temporary security measures,forensic analyst,security consulted who can analyze the Extortion Threat,fees for retraining relevant employees,&c.I find this exciting because there are few real-world policies that have this sort of coverage, some D & O policies being exceptions.  I especially enjoy reflecting on all the adjustment problems which would arise out of the spending on the expenses.  Imagine a controversy over whether the fees of the independent security consultant were reasonable.  Imagine having to deal will controversies about all the expenses at once. 

As already stated these definitions, at least in theory, have some limited applicability to cyber situations, but not all of them are relevant to every such situation, or even most of them.  I am being overly cautious, perhaps, when I say this definition probably does not do much work, if any, in the cyber world.  There is little precedent, if any, in this field, and lawyers involved in coverage litigation on these types of issues can be very inventive and subtle.

Perhaps the central definition in the list is Computer systems. That phrase means “any computer or network of computers of an Organization including its input, output, processing, storage and communication facilities, and shall include off-line media libraries…”  Obviously, this phrase as defined includes both solid objects, such as the one which I am working from on this blog and the one you may be used to read what I have written, and would at least appear not to be a solid object, e.g., data, its “location, its structure, internal directions and so forth.”

The phrase Computer Violation is just as important. It is divided into three sections.  It means “unauthorized”(A) “entry into or deletion of data in the Computer System;”(B) “changes of data elements or program logic. . .kept in machine-readable format;” or(C) “introduction of instructions, programmatic or otherwise, which propagate themselves through a Computer System,” where any of these are “directly against any Organization.”

[The term Organization is not explicitly defined, but it is probably intended to mean objections that are not natural persons that are insured, e.g, a corporation and a subsidiary limited partnership, or an entity not connected to another Organization that is part of a business system involving “artificial” entities but which has some special status. For example, it might belong to an owner of the central Organization.]

The phrase Extortion Threat is also central. Its essence is that of being a threat, and that means the damaging state of affairs has not yet occurred.  Extortion is a new though-related event. Here are at least some of its relevant parts.  Not all of the threats concern cyber situations; here are some that may:

In any case, here are some cyber-relevant parts of the definition:(C) threaten to disseminate, divulge or utilize Proprietary Information;(D) threaten to “disseminate or make negative information regarding the [insured’s] Merchandise; or(E) threat [made by various sorts of persons with various intents and purposes] to “adulterate or destroy any Computer System by a Computer Violation. . .” but to seek payment(s) for not following through. the definition further provides.

Built into the idea of Extortion Threats is the idea of Proprietary Information.  This is extremely important to cyber coverage in general since intellectual property is one of the most difficult and financially significant areas for coverage.  Some violations of the privacy rights of customers of Target, for example, may be awkward, irritating, worrisome, and reputation-reductive for a short time, but actual serious financial losses have heretofore proved unlikely, and their probability may be diminishing further as time goes by.  IP is a different matter’ both individuals and businesses face tremendous financial losses.

Consequently, the terms of the definition are “all-important,” as popular slang would have it, and here it is: “Proprietary Information means any confidential, private or secret information unique to the [Insured’s] business including client lists, drawings, negatives, microfilm, tapes, transparencies, manuscripts, prints, computer discs, or other records of a similar nature which are protected by physical or electronic control or other reasonable efforts to maintain nondisclosure of such information.”

[Interestingly, coverage for Proprietary Information is not created by an insuring agreement.  It is through an insuring agreement for Extortion Threats and then Proprietary Information is central to the definition of Extortion Threat.

[There will be controversies coming out of this definition.  Significantly, the term “copyright” does not appear in this definition, and the title of the phrase being defined includes the word “information.”  Copyrights are not necessarily information.  A new novel or a new poem may be copyrighted, but they may contain no information at all.  The same point applies to other artworks as well.  Abstract painting of Jackson Pollock? One by Hopper? A concerto by John Cage? A painting by Balthus?  (Paradoxically, there are exceptions: works of art that are not copyrighted but which contain information.  What did Machiavelli look like? What about music that contains codes with information in them that can be understood by a few?  Can allegory ever count as information?  What about metaphor?  A novel that contains a fictional character but one which “everyone” knows is really a deep literary portrait of Bathsheba Finkelstein {an actual friend of mine from graduate school}, and many people know that this is who is portrayed.

[Another area of likely conflict is whether that which is being insured is something that belongs to the insured? Does that insured have an ownership interest in that information?  Must that insure have an ownership interest in that which contains the information?  A place that might arise is cyber insurance for law firms.

The Quincy, Quiggley, Quinn Firm has “tons” of information on all sorts of devices, and none of it or them belongs to the law firm.

[Or suppose the owner of the Proprietary Information has 100 devices upon which some of it is stored, but half of them have no information at all, or material, like abstract art, which may or may not have information. . . . .Notice that the list of definition does not contain one for what counts as information.  Can a proposition that is false count as “information”?  What if the client lists contained one falsehood?  Surely the list would be information.  Now consider the document entitled “Client List” where all but one of the entries is false.  Surely that would not be information.  Obviously, there is such a thing as “alleged information” which is not information. Some might think that this is what litigation is all about.

Thus the idea of Proprietary Information is not like all that is found in the idea of intellectual property.  However, the notion of Propriety Information might be just as good when it comes to trademarks and similar matters.]

Obviously, there is much more to say, but at this point, the discussion here may be enough for now.

Exclusions Most of the “Exclusions” are common to kidnap, etc. policies.  They do not fit with cyber exhortations, so they will be ignored, for now. 

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p.s. Keep in mind that in the cyber world, the use of this policy is very limited when it comes to Extortion Threats.  I shall return to this topic in another blog.

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Quinn Quotes

Mistakes always involve being wrong in some way. This proposition may be an analytic truth or even a tautology. A mistake is not always a bad thing. A mistake is often a better learning tool than getting something right. Some mistakes, properly appreciated, are very educational. (It is hard to see how this idea “works” in representing a client.  The usual route of always explaining everything to the client will probably not work here.  Indeed, the idea involves an obvious paradox.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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Michael Sean Quinn, PhD, JD, CPCU, Etc*., is available as an expert witness in insurance disputes and other litigation matters. Contact