Photo of Stephen McConnell
was a temptation today to dash off a typical New Year’s resolutions column, with
weakly drawn parallels to legal topics. If most resolutions involve cutting
back on vices and shedding pounds, we could talk about our determination to go
cold turkey on our use of hackneyed phrases (e.g., “the next time x
happens will be the first”) and inappropriate pop culture analogies (e.g.,
wishing we were in front of Judges Judy or Mathis instead of some hellhole
jurisdiction), or reducing the weight of our motion papers. But we all know
that resolutions are destined to be broken. There will come a time in the
not-so-distant future when we tell some poor, put-upon associate that a reply
brief cannot possibly exceed five pages, then we will edit it and add our
various brilliancies and Homeric catalogues to nudge it closer to fifteen
pages. And is there really a need to find a proxy for the excess tonnage point?
In a recent run-up to trial, as were surveying a courtroom for locations of the
technology, including terminals and screens, a techie from Generation Z
uncharitably suggested that we could project depo videos on our backside.
Moreover, there is a story in today’s Journal of the American Medical Association
that people who are a bit overweight are less likely to die within any given
period than people of normal weight. So much for that resolution. And yes, we
will have the crème brulee.
are also not likely to abjure pop culture, certainly not when something like
the following happens. Do any of you find your inbox littered with emails from
litigation consultants, offering all sorts of free advice on how to woo jurors
and win cases? How many of you ever read that stuff? If you are like us, you
probably feel too busy to give these items even a glance, and you press the delete
button with ferocity and celerity. But that might be a mistake. While most of
our friends take vacation days in the week between Christmas and New Years, we
like to come in the office then, as it is so quiet and peaceful. It is a good
time to catch up on correspondence, even of the slightly frivolous kind. We
even took a peek at consultant bulletins. One of them attached a couple of TED
videos on storytelling and persuasion. If you do not already browse through TED
videos, you should. The speakers are usually smart and engaging. What’s more,
the presentations are done beautifully – they are a remarkable and instructive
contrast to the usual bullet-ridden Power Point presentations that waltz us off
to sleep. It reminds us of comedian Don McMillan’s bit on
Life After Death by PowerPoint.
of the presentations was by Harvard B-school professor and social psychologist
Amy Cuddy on body language. Better for you to watch it (it is only about 20
minutes long) than accept our summary, but let’s leave it at this: our state of
mind affects our body posture, and the reverse is equally true. Thus, when
people are triumphant or dominant, they literally spread out, extending arms
and legs and make themselves look bigger. Take a look at Usain Bolt crossing
the finish line.  When people are feeling submissive or vulnerable, they
cover themselves up and make themselves smaller. That much is obvious. What is
fascinating is that if one is gearing up for a presentation/meeting and one is
feeling nervous, going through some victory poses (e.g., hands on hips, feet
wide apart) for a few minutes can make one feel more confident. Cuddy ends her
talk with a very personal, touching story about herself, and then urges her
audience to share the story, including the underlying science.
we did. During a New Year’s Eve party, in between the Pictionary and champagne,
we recounted Cuddy’s advice about how to “fake it to make it.” We were
expecting gasps of astonishment. Maybe even some gratitude. Nope. A couple of
our friends merely nodded and said that they had heard about this a couple of
years ago on Oprah. Score it pop culture 1, litigation consultants 0. We are
not giving up on pop culture just yet.
are no longer sure anymore what is the difference between high and low brow
cultures. Have you seen college course offerings? You (or your kid) can
take classes on Saved By the Bell or the Semiotics of Barney. A lot of what
calls itself high culture is fixated on low culture. There was an article in this
week’s NY Times Book Review on collections of essays. One of the essayists,
Daniel Mendelsohn, was highly praised. What caught our attention in the review
was a reference to an essay Mendelsohn wrote in the NY Review of Books back in
February 2011 on Mad Men. We normally steer clear of the NY Review of Books because the
reviews usually end up being more of a review of the reviewer’s obsessions than
the actual work allegedly being reviewed. The articles exude more neurosis and
bitterness than illumination. They seem to be written by and for people with
migraines. (We are still smarting from Renata Adler’s long ago takedown of
Pauline Kael. Sure, some of Adler’s points about Kael’s verbal tropes were
correct, but none of the nastiness could dislodge Kael from the Pantheon. It’s
like our favorite moment in the Beatles Anthology video, where McCartney
wearily recites the chorus of complaints about the White Album, how it had
moments of self-indulgence and would have made a better single album: “It’s the
Beatles’ White Album! Shut up!”)
are not (yet) putting Mad Men up there with Kael or the Beatles. But
Mendelsohn’s article does not convince us that the show is as frail and
dispensable as, say, Alf. Mendelsohn’s review of Mad Men is yet another NYRB
exercise in dyspepsia. Put plainly, he pretty much hates the show. Mendelsohn
is a smart guy and a fine writer, and there’s no way we will do justice to his
analysis (wrong-headed though it may be). He seems to think that Mad Men,
besides suffering from sins of implausible plotting and shallow
characterizations, depicts the social and business mores of the 1960s on
an entirely superficial level. The program almost amounts to Rat Pack era
porn. We look up from our iPad at the tv screen and see characters hoisting
highballs in the afternoon, or see a pregnant woman light up a Marlboro Red,
and smile smugly. Mendelsohn does not seem to think that the show digs deeply
enough or explains enough. We are not sure that there is more explanation or
texture in other series that Mendelsohn admires, such as The Sopranos or The
, and we suspect that any pat explanation of characters’ motivations would
be greeted with contempt by Mendelsohn or some other acerbic critic, and rightly
At the end of Mendelsohn’s review he arrives at a conclusion that seems
to us absolutely correct and insightful (and confirmatory of something we
already thought): if the milieu of Mad Men seems opaque, it is because it is
viewed not from the perspective of the main characters such as Don Draper or Peggy
Olson, but is viewed from the perspective of the kids, who can only gaze at
their misbehaving elders in wonder and fear. The demographic cohort that is in
love with the show is not the people who lived and acted out the doings in the
show (those people would largely now be octogenarians) but babyboomers – the
kids of that smoking, boozing, philandering, utterly wonderful, mixed-up, maybe even greatest generation. The self-absorbed boomers never fretted about the interior lives
of their parents back then. Now they (we) do. But having direct conversations
with parents on those issues, many of them terribly awkward, is impossible
or irritating or unreliable now. Like most works of art, Mad Men takes us out
of ourselves. Shelley (whose life would make a pretty good cable mini-series)
said that poetry is a great spiritual and even civic exercise, because it makes
us consider about how others live and think and feel.
occurs to us that considering how others live and think and feel has a little
something to do with successful litigation. Thus, all kidding aside about the
new JAMA article, we are more likely to put down the spoon than the remote