Shooting Ourselves in the Foot with Bullets

We are out of control with our PowerPoints. 

As a group, lawyers are the worst presenters I know. As a group, lawyers should be the best. We make our livings telling stories to clients, judges, and juries. Yet, give us a Powerpoint and we will oppress an otherwise interesting and important story into a brutal deathmarch of text-laden slides worthy of the Jackson Administration. We read from our slides (which consist of the notes for our talk) until a woman in the audience begins to wish that the bullets on the screen were lodged somewhere in her prefrontal cortex.

It doesn’t have to be this way.

Never has it been this easy to give[1] a great presentation. Whether you use Microsoft PowerPoint or Apple’s Keynote, either program can quickly incorporate interesting images that capture a key concept. You can find these images online and save them to your computer in an instant. The fonts available to us are limitless.[2] Beautiful templates are prepared for us and baked into the software.

Never has it been this hard to give a great presentation. I have been traveling the state with the Kentucky Law Update series to talk about our enduring foreclosure crisis. I present after lunch. When I walk in the room during the break, I see the half-finished crosswords. I see the Amazon Kindle’s poking out of purses, the iPads filled with games and email. I know what I’m up against. The demands on our audiences’ attention have never been greater.

It has never been harder to get and keep an audience’s attention. I am here to tell you a hard truth: your deep knowledge and compelling series of bullet-pointed slides that explain everything so obviously and logically is not enough. Not even close. If you want your audience’s attention, you are going to have to rip it out of their iPad’s cold, dead hands.[3]

For trial attorneys like me, our livelihood depends on our ability to give a good presentation. Having someone’s attention is a precondition to persuasion. But, even if you are never going to set foot in a courtroom, you still need to know how to give a good presentation. You still have a stake in helping us all become better presenters.

There are 17,000 members of the Kentucky Bar Association. Each of us are required to gather 12.5 hours of Continuing Legal Education credit each year. We comply by sitting through lots of presentations. Multiply our membership by a 25-year career and collectively we will endure about 5,312,000 hours of presentations before we retire.[4]

That’s a lot of crummy presentations.

There are some basic things we can do to make our presentations instantaneously less awful. First, do whatever you need to do to keep your audience’s attention. If the only way you can do this is by butchering a chicken while talking about subrogation rights or ERISA plans, bring a tarp to make cleanup easier. Let’s stop pretending this isn’t a show and that we’re not, in part, ringleaders.

Next, adhere to Guy Kawasaki’s 10–20–30 Rule. No more than 10 slides. No more than 20 minutes. Nothing less than 30-point font on your slide. Look, your slides shouldn’t be your notes.[5] Your notes are your notes. After you create your crappy presentation that just reflect the main things you want to say, hit “Print”. Those are your notes. Congratulations. Now create your presentation with 10 words–one per slide that capture your points. Better yet, pick ten pictures that enliven the concepts and entertain while you use your notes. Your slides should be in conversation with your words, not an echo of them.

Third, get curious about how to make your presentations better. Read Presentation Zen by Garr Reynolds or Beyond Bullet Points by Cliff Atkinson.

Finally, it’s time we start expecting more of ourselves and our colleagues than dry marches through case law and statutes. Obviously, imparting substantive knowledge needs to happen, but it’s time to stop pretending it’s our audience’s job to already be interested in our topics and it’s their fault if they don’t give us their undivided attention. Their failure to pay attention is our failure to capture it. Be brutal in evaluations. Demand more. If a presentation wasn’t great, give suggestions to make it better. If the presenter just phoned it in, say so.

Presentations matter. They matter to colleagues, clients, opposing counsel, and juries. At a minimum, five million hours of smart people’s time is at stake. Don’t let a bad presenter waste another hour of yours.

Ben Carter is an associate at Morris and Player, PLLC, a firm for plaintiffs. He is a consultant to the Network Center for Community Change on issues surrounding foreclosure, tax liens, and vacant and abandoned property. He welcomes your thoughts and ideas: bwc@morrisplayer.com.

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1. When I say “give”, I mean it: a great presentation is a performance that stays with the audience. It is a gift.  ↩

2. Please, stop using Calibri. When I see Calibri on the screen, the words I see are, “default.” As in: “The fact that this presentation is awful is default of the presenter.”  ↩

3. I am aware that iPad’s do not technically have hearts and that they are, in fact, cold and dead already. You do not need to email me on this point.  ↩

4. This doesn’t include all the time we spend in internal firm meetings that resemble the eye-popping scene from A Clockwork Orange.  ↩

5. When was the last time you went to a movie and the screen was bifurcated: one side with the action and actors and the other side with a scrolling script? Exactly. Time to raise your game.  ↩

Typography for Lawyers: One Space, Double Spacing, and Other Good Ideas

This is an essay about typography.

What is typography? Basically, it’s how letters and words appear on the page, how individual words and chunks of text fit together. As lawyers, our livelihoods depend often on chunks of text. The thesis of this article is that small typographical improvements in your resumes, letters, briefs, and presentations can make a dramatic difference in your ability to effectively communicate and persuade.

Better typography improves your chances in mediations, in court, and in trial.

I need to make two points before I even get started. First, and perhaps already obviously, I am a nerd. How much of a nerd? I still own a 20-sided die. The best way to get me to corner you at a party is to mention in an offhanded way that you need to get a scanner (at which point, I will rhapsodize about the Fujitsu Scansnap 1500 for 20 minutes as the ice melts in your cocktail). As you will see, I’m the kind of nerd who can’t resist making a reference to Weird Al Yankovich’s cult classic UHF even in an article in which I hope to impress my peers.

I’m the kind of nerd that says, “Hell, yes!” when I discover that some typeface-designer-turned-lawyer has written a book about typography and the practice of law.[1] This is my second point: almost everything I have learned about typography I learned from Matthew Butterick and his excellent website, http://typographyforlawyers.com and book, Typography for Lawyers. Butterick is a Harvard-trained typeface designer and a graduate of the University of California Berkeley’s Boalt Hall. So, he’s kind of in his wheelhouse on the subject of typography for lawyers.

I recognize that not everyone has attained the same nerd heights as me and may not want to read an entire book about typography. This is an attempt at a summary. Still, I highly recommend getting the book. I refer to it each time I write a brief. It contains great examples of before and after improvements to business cards, resumes, correspondence, and legal briefs. Further, it contains detail that can only be captured in a book; Butterick explains the proper use of em dashes and en dashes and hyphens, the nuances of non-breaking spaces and non-breaking hyphens, the dark art of letter spacing. So, get the book.

Plaintiffs attorneys would do well to adopt better typographical practices now rather than later. Law schools across the country are using Butterick’s book as part of their legal writing curriculum. The federal clerks who are reading your briefs will know the best typographical practices and will judge you and your failure to adopt them. Further, as I mentioned above, better typography produces briefs, letters, and exhibits that are easier to read and therefore more likely to be read and understood.

Plaintiffs attorneys have a brief window in which adopting better typography will provide us with a subtle advantage. The defense bar will eventually adopt better typographical practices and then our failure to use them ourselves will disadvantage us and our clients.

So, let’s get started on improving our work product with better typography. I will begin with some practices that will improve all of your documents, including your briefs, and then discuss the impact of court rules regarding margins and line spacing in briefs.

Use One Space after Punctuation

Modern typographical best practices flow from an appreciation of a fact that has eluded many attorneys: we have computers now, not typewriters[2]. We learned to type (or our typing teachers learned to type) on typewriters that used a monospace font. That is, every letter, whether it’s a fat “m” or a skinny “i”, was stamped on a piece of metal that was the same width as all the other characters. Using two spaces after punctuation in a monospace font is acceptable (but even there, unnecessary). On computers, however, we are blessed with proportional fonts–fonts with varying letter widths. Using two spaces after a proportional font is a vestige of our days from the typewriter. It is, as Butterick says, “an obsolete habit”. As he says in his book and website:

Some top­ics in this book will involve dis­cre­tionary choices. Not this one. Always put exactly one space between sen­tences. Or more gen­er­ally: put exactly one space after any punc­tu­a­tion.

One space. Period.

Okay, with that sacred cow slaughtered, let’s move on…

Use Bold or Italic Type for Emphasis

Do not use underlining. Again, underlining is a vestige from our typewriter days when there simply was no other option but to use underlining to add emphasis. Bold type and italic type just weren’t available on typewriters. Bold and italic type are the typographical equivalent of the electronic unlocking mechanism on your car. When was the last time you actually unlocked your car with your key?

Use better tools: bold and italic typefaces are more elegant and less disruptive to the eye than underlined text.

Justify Your Text on the Left

There’s really not much to this rule except to say that studies have shown that left-justified text is easier to read than text that is justified on both sides. In a left-justified document, the reader’s eyes use the nonuniform breaks along the right side of the page as a subtle guide to find the beginning of the next line of text.

Unlike the two previous rules, you do not have to stop justifying your text on both sides if you don’t want to. Know that you are making your reader’s job more difficult, but justifying on both margins is still acceptable practice. If you justify on both sides, however, you are required to turn on hyphenation in your word processor. Hyphenation will help you avoid the unsightly gaps in text that can occur in documents justified on both sides. These gaps, like the double spaces after periods, are little tiny speed bumps for the reader’s eyes as they travel across the page.

Look, I should probably be explicit about this now that I’ve used the phrase “little tiny speed bumps for your reader’s eyes”: I write my briefs with the understanding that judges and their law clerks are drinking from the fire hose. Like little Joe Miller in UHF, judges and law clerks found the marble in the oatmeal and now their reward is to read tens of thousands of pages of lawyers’ briefs each year. My baseline assumption about my audience is that they are drowning and are looking for basically any reason to stop reading my brief. Given this assumption, a lot of “little tiny speed bumps” in my brief are a really big problem for me.

Use a Nice Font

Fonts are what most people think of when they hear the word “ typography”. I hope my ranting so far has given you a sense that fonts (technically, typefaces) are just a small element of good typography.

Consider investing in a nice font. Butterick has designed a typeface, Equity, to meet the special needs of attorneys. It is polished, tight, and its italic is beautiful. Seriously, I find myself trying to find reasons to italicize words when writing with Equity. It’s available for purchase on his website. He also has recommendations for replacements for your Times New Roman and other common system fonts that are preinstalled on your computer and make your work look like everyone else’s work.

Avoid All Caps

Many attorneys rely on ALL CAPS as a way to emphasize their most important points and in the headings of their briefs. This is not a useful practice. ALL CAPS IS ACTUALLY HARDER TO READ than regular text. Butterick allows for a single line of all caps text, but no more. Personally, I try to avoid it whenever possible.

A bolded, underlined, all caps heading is just an invitation to your reader to skip past it.

On a related note, if you have a case which involves the question of whether a provision in a contract is clear and conspicuous, Butterick is available to serve as an expert witness. I think his services would be especially useful in consumer cases which involve contracts that contain paragraph upon paragraph upon paragraph of all caps text. The science is in: this text is difficult to read.

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Every court promulgates rules regarding typography. These rules are designed to promote fairness, uniformity, and legibility by forbidding attorneys from engaging in the worst typographical practices in an effort to squeeze more words onto a page. These rules have their most dramatic impact on line length (margin rules) and line spacing (the requirement that the lines be double-spaced).

Shorten Your Lines Outside of Briefs

“Shorter lines are easier to read than longer lines,” says Butterick. Ideally, your line will be between 45 and 90 characters, including spaces. Most courts in Kentucky require one-inch margins on both the left and right. (The appellate courts require 1 1/2" margins on the left.) At these margins, your 12-pt Times New Roman line is going to have more characters than the recommended maximum of ninety. Outside of lobbying for a rule change, there’s nothing you can do.

Move on to something you can fix: your line lengths in your letters, interoffice memorandum, and presentations. For me, shortening my line lengths was a revelation; this small change led to an immediate improvement in the look and readability of my letters.

Use True Double Spacing for Better Briefs

The ideal line spacing is 120–145% of your font size. That is, if you are using a 12-point font, you should set your line spacing between 14.4 and 17.4. Personally, for my out-of-court documents, I use 15-point spacing. It provides a little more space between the lines than the “single spacing” setting (which makes words look cramped and is difficult to read).

Most courts require us to double space our briefs.[3] CR 76.12(4)(a)(ii) requires us to use “black type no smaller than 12 point” and typing that is “double spaced and clearly readable.” The court’s requirement to double space your briefs does not mean, however, that you just go into Microsoft Word and pound the “double space” button. True double spacing for a 12-point font means setting your line spacing at “Exactly” 24 points. Using Microsoft Word’s default “double space” will give you line spacing greater than 24 points–about 15% greater, in fact. This translates to having 2–3 fewer lines on a 8 1/2“ x 11” page.

In other words, if you are using Microsoft Word’s default “double space” setting for your pleadings, you are hurting yourself in two ways: 1) you are making your document less legible by putting more space than ideal between your lines and 2) you are making your document longer than it needs to be. Because our courts set maximum page limits (rather than word limits), this means you are giving yourself (and your client) fewer words to explain your position than you would otherwise have available to you.

How many times have you been on page twenty-six and need to slim a brief down to twenty-five pages? True double spacing will give you more words and those words will look better on the page.

There: I just gave you a way to be more verbose than you already are. For that and for all the other typographical wisdom (cribbed entirely from Matthew Butterick), you’re welcome.

Sometimes it pays to know nerds.

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1. The only other lawyer I knew personally that had read Typography for Lawyers and cared about this stuff at all was Finis Price. I miss that guy.  ↩

2. For anyone reading this still using a typewriter: you need help this article cannot provide. Please stop reading.  ↩

3. I’ve looked through Jefferson County’s local rules and can’t find a double-spacing requirement anywhere. Nonetheless, I think the court would look askance at anything not double-spaced.  ↩

Why I Support Judge Shake for Kentucky Court of Appeals

The reality of judicial races is that people who work outside our legal system feel ill-equipped to cast an informed ballot. I'm often asked by my non-lawyer friends who they should vote for in judicial races. In the Court of Appeals race in Jefferson County, I suggest a vote for Judge Jim Shake. 

Judge Shake is a smart, pragmatic judge that works hard and takes risks to ensure that everyone has access to the court system and that the courts are solving problems. I know. In 2009, as the Chief Judge of the Jefferson Circuit Court, Judge Shake worked with advocates for homeowners (I was an attorney for the Legal Aid Society at the time), bank attorneys, community groups, and the court system to create the Foreclosure Conciliation Project. With the FCP, Jefferson County became the first court system in the state to attempt to address the exploding numbers of foreclosures in our community.

As part of the project, Judge Shake ensured that each homeowner facing foreclosure received credible, timely information about alternatives to foreclosure and steps to take to avoid foreclosure. The FCP provided homeowners with outreach, housing counseling, legal representation, and an opportunity to meet with their banks to pursue these alternatives. Hundreds of homeowners saved their home through the process that Judge Shake created and the lessons we learned in Jefferson County have influenced similar programs across the state.

Judge Shake has been a judge for 19 years. He knows the immense impact the courts have on Kentuckian's lives. The courts impact lives not just in individual cases, but also in the processes and procedures they build to solve emerging problems like the foreclosure crisis. I'm supporting Judge Shake because he has shown the willingness and ability to solve problems—big and small—as a judge.

Big Week for the McCarters

My wife, Erin, will be on A&E's television show, After the First 48, this Thursday at 10 p.m. Last year, as an Assistant Commonwealth's Attorney in Jefferson County she prosecuted a homicide that shares many elements of the Trayvon Martin case: a racially-charged killing with the defendant claiming self-defense. 

Set your DVRs. 

You can check out the trailer on A&E's website. Here's their description of the episode: 

In January of 2009, Louisville resident Billy Wagner was killed in the street by a single bullet to the back of the head. After nearly two weeks, Det. Rick Arnold charged 20-year-old Gary Lindsey with murder, but the story was far from over. At trial, a young prosecutor faced off against a power veteran defense attorney. And the jury had to decide: Was the killing self-defense or murder?

In more good, Erin-related news, she is now blogging at http://emacattack.com. For those of you who know her, you will know how great this is going to be. You can receive occasional email updates from her. They will likely be about criminal law—domestic violence in particular—UK basketball, and the paleo diet. For a non-stop stream of Erin greatness, you can always follow her on Twitter. Her handle is @tinemac.

Oh, and we were on KSR yesterday.

Big week.

The Sausage of Justice

The Network Center for Community Change pays me (yes, it is a great job) to train attorneys attorneys to defend homeowners facing foreclosure and work with courts to implement processes that ensure everyone is getting a fair shake during a foreclosure. This is a presentation from last fall at the Kentucky Bar Association's Kentucky Law Update in Covington, Kentucky in which I explain to attorneys how they can profitably incorporate foreclosure defense into their practice, how loan modifications work and don't work, and why the court system needs to change how it handles foreclosure proceedings. Somehow, I also talk about the Sausage of Justice.

Read more about the Network Center for Community Change: makechangetogether.org

Read more about my law practice: bencarterlaw.com

Gold in the Water, Gold in the Bank

The Indigo Girls and their Boy

I was 12 when I first heard the Indigo Girls. I know it’s probably the worst cliché to begin an essay about the need for equal rights for gay and lesbian Americans by talking about the Indigo Girls, but dammit that’s where the story begins for me. I came to know about gay and lesbian people like most other sensitive kids who were into sensitive folk rock and came of age in the early 90s: through Emily Saliers and Amy Ray.

My cabin’s counselor was an undergrad at University of Georgia in Athens. It was 1990, and the Indigo Girls were touring the South while using Athens as their base. Each night, counselors were supposed to give devotionals to the campers before bed—a time for reflection. Ed, our counselor, mostly just played us Indigo Girls songs. The first song he played us was “Prince of Darkness.” Penned by Amy, it’s a song about deciding to use your life for something beneficial. It’s an obvious choice for a devotional.

My place is of the sun and this place is of the dark.

By grace, my sight grows stronger.

I do not feel the romance. I do not catch the spark.

By grace, my sight grows stronger.

And I will not be a pawn for the Prince of Darkness any longer.

Damn, that’s pure.

When you’re twelve, each day is a revelation; the world as you know it changes almost daily. I remember laying in my cot under the stairs of Pine Lodge, listening to their harmonies in the dark, flooded with their earnestness, thinking, “This changes everything.”

And, in some ways, it did.

On my way home from camp, I made my mom stop at a CD store (remember those?) and I bought the album for myself. I have bought every one of their 17 albums in the 21 years since then. It’s not overstating things to explain that the Indigo Girls have had more of an influence on my politics and worldview than any other band. I should probably explain that this is a high bar: if a band is not singing about current events, our shared obligations to one another, love, or politics, I’m not interested. In fourth grade, (my mom and) I did a report on musicians with social consciences. This is what happens when “We are the World” is one of the first songs a boy falls in love with. In high school, I was the guy listening to Woody Guthrie and Cisco Houston.

I don’t remember anyone explaining to me that the Indigo Girls were lesbians for a few years after I started listening to them. I can’t remember, but I don’t think Ed framed their music that way. I think I told someone they were my favorite band and they mentioned something about them being lesbians because I remember thinking, “WHAT? How did I not know that? I’m like their number one fan!” By the time I learned Amy and Emily were lesbians, they were too important to me to care whether they swung this way or that way. If liking, accepting, and admiring lesbians was wrong, I didn’t want to be right.

I grew up in Ashland, Kentucky. It’s not a backwards place, but it’s also not kind of place where a 12-year-old would know a bunch of gay and lesbian people in 1990. Not because there weren’t gay and lesbian people in my life; looking back, it’s obvious to me that I knew bunch of gay and lesbian adults. They just were never going to be out of the closet in Ashland, Kentucky in 1990.

Even though I didn’t know any gay or lesbian people personally, by the time I was in high school I knew enough (thanks to the Indigo Girls) to know bigotry and stand up to it. Our newspaper, the Ashland Daily Independent, often ran these “Heard on the Street” columns where reporters would go down to the Ashland Town Center Mall and ask regular people what they thought about an event in the news. Somehow, this counted as journalism. One time they asked people whether homosexuals should have the right to marry. I don’t remember all the responses, but I don’t think they were able to find someone who answered in the affirmative. I do remember one woman’s answer: she didn’t agree with gay marriage because if you allowed gays to marry each other, pretty soon people would be marrying their dogs.

(My mom and) I wrote a letter to the editor. I tried explaining that heterosexuals had proved to be pretty rotten at marriage (domestic violence, divorce rates, etc.) and speculated that it was time to give somebody else a shot. I tried explaining the logical fallacy in the woman’s opinion. And, I said I would much rather have a loving gay couple is my neighbor than a guy who beats his wife. Fifteen years later, I’m still proud of writing that letter.

A Jethro and his Boy

Jethro Nededog (his real name) was the first openly gay person I ever knew. After my freshman year in college, I studied Spanish at a New York University program in Madrid. Jethro was an NYU student who needed foreign language credits to graduate. I think I told Jethro he was my first gay friend. I think he took it upon himself to show me how ordinary gay people were. I think that’s why when I suggested camping out in an olive grove above Toledo, Jethro was the only one of my friends who took the bait.

For anyone considering camping out in Spain, here’s what you need to know: it gets ass-cold at night. Jethro and I were woefully—woefully—unprepared and it was all my fault. We had a couple of thin foam camp pads and a couple sheets. It must have been fifty degrees by 10 o’clock. This is how a kid from eastern Kentucky ends up spooning with a heavy set Californian of Guamanian/Filipino descent under an olive tree in Spain. To add to the absurdity, at around midnight, a discotheque just over the hill from us started bumping, so we shivered the night away to “Dancing Queen” and the medley from “Grease.” Amazingly, Jethro remained my friend after that disaster and we keep in touch through the magic of Twitter.

People like Jethro are the reason Republicans and social conservatives will lose. Jethro is funny, kind, up for any adventure, and quick to laugh; he’s a great storyteller and he listens well. In short, he’s exactly the kind of guy you want as a friend. As Jethro’s friend, I want him to enjoy the same rights and share the same obligations as I do in America. As more and more gay people become openly gay in America, more straight people like me realize just how many of their friends’ lives are affected by institutionalized, systematic inequality.

The Price of Being Gay

The ways in which our systems treat gays and lesbians as second-class citizens have been well-documented elsewhere. They are not allowed to visit ailing partners in hospitals. They are not allowed to adopt children. Their marriages are not recognized in most jurisdictions and are not recognized by the federal government. They pay more for health insurance for their partners. They pay more in taxes. Until recently, they were not allowed to serve openly in our armed forces. This is how we treated men and women who are willing to die for a country that treats them like inferiors.

Each person is chafed by different aspects of the existing inequality. For me, it’s in the tax code. Erin and I paid $1,825 less in taxes last year because we filed as a married couple.

One-thousand, eight-hundred, and twenty-five dollars.

Just for being straight and getting hitched.

A gay couple, whose union is not recognized by the IRS, will pay a Gay Tax every year when they file their tax returns separately. Chuck Hendrix—the guy who prepares our taxes each year—has been filing separately from his partner for 27 years. I think this chafes me so badly because this Gay Tax is quantifiable. There it is: $1,825—the value the federal government places on me being straight and suave enough to get a girl. Over the next 35 years, if I invested $1,825 at 7% (the average rate of return of the S&P 500 since 1950), I would have an additional $289,000 in my retirement account. Just for being straight. No telling how much less Chuck has in his retirement account because he can't file jointly with his partner. 

Preposterous. Outrageous.

"Today, this is news. One day, it won't be."

Because our government treats homosexual couples differently than heterosexual couples, the ministers (Derek and Ryan) at my church asked the congregation’s blessing to stop signing civil marriage licenses until they could sign civil marriage licenses for couples regardless of their sexuality. The church Erin and I go to is an Open and Affirming Church in the Disciples of Christ denomination. It was one of the reasons we joined. [1]

As an Open and Affirming community of faith, we believe God calls all people, regardless of sexuality, into communion with God and welcomes them into a life of discipleship. Christianity has been used to exclude, marginalize, and oppress for centuries and we think it’s time that stopped. Erin and I think the Bible is pretty clear on that point.

So, one afternoon after church our congregation voted to endorse our ministers’ decisions not to participate in a secular system of marriage that is only available to some of our members. If we can’t confer the civil benefits of being married on all our members, we won’t confer them on anyone. We’ll marry anyone in the eyes of God, but straight people can go to the courthouse to get their civil marriage licenses.

We voted and we wrote a press release. The Courier-Journal wrote an article. The LEO (Louisville Eccentric Observer) wrote about it. A local TV station interviewed our ministers. And then the story hit the wires. Emails of support and gratitude came in from around the world. Think Progress wrote a nice article. And then MSNBC called. Five days after we voted, Contessa Brewer interviewed our minister on her daytime show. As I told my minister, “Today, this is news. One day, it won’t be.”

I believe that. I believe that one day—hopefully one day soon—the fact that a church treats everyone the same regardless of their sexual orientation will not be newsworthy.

But, it’s not guaranteed. That’s what’s hard for me to remember. Too hard for me to remember.

Not There Yet

The long march toward equality for homosexuals can seem almost inexorable, inevitable. Polling among young people shows that it is apparently only a matter of time before bigotry becomes politically untenable. When a Republican (admittedly, a Republican from New York, so not really a Republican) says something like this, it feels like victory is assured:

You get to the point where you evolve in your life where everything isn’t black and white, good and bad, and you try to do the right thing. You might not like that. You might be very cynical about that. Well, fuck it, I don’t care what you think. I’m trying to do the right thing. I’m tired of Republican-Democrat politics. They can take the job and shove it. I come from a blue-collar background. I’m trying to do the right thing, and that’s where I’m going with this.

Small victories are all around us—but big injustices still exist. Ironically and inappropriately, instead of being emboldened to become more active in the gay rights movement, I find myself reacting to the movement’s small victories by adopting a mindset that says it’s only a matter of time until everyone in America enjoys equal justice under the law. Seeing progress as inevitable is seeing myself as unnecessary. Seeing progress as inevitable justifies my own inaction.

In many ways, it feels like we’ve already won.

We haven’t. I find myself needing to remind myself that progress is not guaranteed. Human societies often take a leap forward in the expansiveness of their thinking, adopting new understandings of community, family, and the role of government, only to fall backwards for decades or centuries. I know that the arc of the moral universe is long and that it bends toward justice, but it’s the humans that do that bending. That’s what I have to remember to remember.

That’s what this essay is for. This essay is to remind myself of the gays and lesbians I have loved and still love and to remind myself that my love for them is not enough. America and Kentucky still treat them with distain, still codify their difference, still tax them for who they love. And, this essay is to remind myself that despite America’s great strides forward, continued progress forward is not guaranteed but is my (our) responsibility.

So, what am I going to do?

1) I’m going to publish this essay.

2) I’m going to keep going to an Open and Affirming church.

3) Each year, I’m going to ask my tax guy how much Erin and I saved by filing as a married couple and I’m going to donate that money to organizations (like Fairness Campaign) and churches (like Douglass Boulevard Christian Church) and politicians (like John Yarmuth) who support equal treatment for all Americans, regardless of their sexuality.

I’ll go to marches. I’ll lobby in Frankfort. But, money matters. Money allows Fairness to hire more full-time staff; money allows Douglass to continue to minister (both to people and other Disciples of Christ churches); money allows John Yarmuth to stay in Washington, ready to vote to repeal DOMA when the votes are finally there.

The $1,825 Erin and I saved last year for being straight is ill-gotten gains. It’s a kickback from an unjust system. If every straight person who supports the equality of their lesbian and gay sisters and brothers gave this money to like-minded organizations and politicians, we would rapidly expand our capacity to extend justice to gay and lesbian Americans. We would make bigotry politically untenable much more quickly.

The day can’t come soon enough. Not just for gay and lesbian people, but for straight people, as well. The persistence of injustice reduces us all.

The Power of Two

Erin and I recently attended a wedding on the top floor of the Muhammad Ali Center. Today, Muhammad Ali is remembered in his hometown as much for his peacemaking work and his attempts to make America confront its unjust and oppressive systems as he is for his fighting. Before the ceremony, Erin and I were enjoying the sunset on the balcony overlooking the Ohio River. Somewhere in the muddy foundation of the river was Muhammad Ali’s gold medal. Perched above Louisville, an orange light, a warm breeze, my wife: the scene was perfect.

Except.

Except six stories below, gays, lesbians, and their allies had gathered for their annual Pride Festival. As Mark and Sarah swore their life-long commitment to one another, thousands of gays and lesbians stood, literally, in the background hoping one day for the same opportunity. I felt like a rich man in a developing country must as he stands at his penthouse balcony and looks across his city at the oppressive slums below.

For me, Erin’s love and our marriage is a daily miracle. It is my only wealth.

I know that some opponents of marriage equality say that gay marriage will destroy the value of their marriage. I feel the same way, except opposite. That I enjoy socially-conferred and state-sponsored benefits that my gay and lesbian friends cannot diminishes my marriage. As I survey the landscape from my penthouse of privilege, I want to see opportunity, not oppression.

We will not end the government-sanctioned marginalization of gays and lesbians without pain and effort. More gold medals need to hit the water and more gold coins need to hit the coffers of those organizations that support equal rights for all.

It is clear that we are turning the tide—quickly—in this fight. Much of it is due to the bravery of gays and lesbians who live their lives and love openly. Knowing that you have a friend or family member being directly harmed by the government’s unjust policies forces people to reconsider their apathy or antipathy.

More and more, people are beginning to see the moral poverty of the current arrangement and longing for justice for their co-workers, friends, and loved ones. Life, we know, is hard enough without unfair tax structures and government-sanctioned marginalization. Everyone should have a partner to help bear their burdens and magnify their joys. Everyone should be able to multiply life by the power of two.

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1. Footnote: We agree with the Iowa legislator who asked, “How many more gay people does God have to create before we ask ourselves if He wants them around?”

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Showing Up

At work, I feel like a fraud. Five years after passing the bar, the civil justice process is still daunting, and each decision–no matter how minor–seems fraught with peril. Should I call or should I email? What if they ask a question I don’t know the answer to? Do I need to comply with this request for production of documents?

This is why jobs are awesome: they make us do things that terrify us. I swear, if I didn’t have a mortgage payment and too many animals to feed, I would not get anything accomplished. The only reason I’m going to build up any competency and expertise as a lawyer is because I have to. I have to show up every day. I have to take the depostion. I have to do the research and write the brief. I have to negotiate and settle my client’s claim. I have to go to trial.

Look, I would love to be the guy who said, “I don’t have to go to work, I get to.” “Every day is a joy.” And, to a large extent, that’s true. I have been very, very fortunate to have only law jobs that I thought were important jobs, worthy of my time and attention. They were fun–interesting, not drudgetastic–and I got to work with really, really smart people.

But, those jobs were also terrifying. More often than not, I had no idea what I was doing.

I had to do it.

I didn’t want to do it. I wanted to run away. I wanted to scream that I didn’t pay attention in law school, that I’m really not as smart as you think I am, that I shouldn’t be trusted with X1.

If I didn’t have to show up every day, I wouldn’t. I would seek the comfort of things I know I’m good at: laundry and petting animals.

I think God understands this about us. I think God knows that if we didn’t have to work, we probably wouldn’t ever be worth a damn. 2

Work is showing up every day.

If you want to get good at something, it has to be your job. You have to do it every day. Have to.

If I got to wait around for inspiration and expertise and confidence… Well, I guess that’s what purgatory must feel like.

I think this is what Wendell Berry’s character, Jack Beechum, meant when he said “If you’re not in debt, you’ll never be worth anything” in The Memory of Old Jack. 3 He meant that we are weak. We are fearful; and the only way we’re going to do something–something amazing, something worthwhile, something that risks failure–is if we have to.

In some ways, I think our challenge is figuring out ways to make what we want to do well what we have to do every day. Some feel-good thinkers will give you the exact opposite career advice: Find a job you want to go to every day. Follow your bliss. That’s fru-fru hogwash.

You know where my bliss leads me? To a living room filled with laundry that needs to be folded and a big TV broadcasting the NFL.

In retrospect, I think this is one of my best skills: finding work that scares the crap out of me. Deep down, when I am most honest with myself I will admit: I want to become a great attorney. That only happens if I go to work every day and risk failure. I have learned that expertise is not magic. It’s showing up and risking failure. Again and again and again.

It’s not pleasant, it’s terrifying.

It’s the only way.

It’s not what I want to do, it’s what I have to do.

Every day is a new day. To fall on my face.

This is how you get good. 

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1. Where “X” is an opinion on the constitutionality of Kentucky’s educational system, a reckless driving trial of a Palauan cement truck driver, negotiating a plea deal for a Bangladeshi (falsely) accused of receiving stolen property so that he could remain in Palau rather than face deportation, a constitutional challenge to Palau’s prison conditions, a multi-agency, county-wide response to the foreclosure crisis, a legal brief in a multimillion dollar suit alleging negligence on the part of Kentucky’s largest law firm, a presentation about foreclosure defense to 250 skeptical attorneys. ↩

2. This phrasing is fraught with potential misunderstanding. I am not saying that our worth in God’s eyes is tied to the work we do on Earth. I think God has made it abundantly clear that our worth is our worth, no matter what. Whether we like it or not. Further, the phrase “worth a damn” is not meant to imply that God finds inaction or laziness damn-worthy. Rather, all of this is to say that my utility to others on this Earth, my ability to seek justice for them in our civil justice system, is directly related to being compelled to show up every day whether I want to or not.  ↩

3. Not an exact quote. If you know the real quote or can find it, please use the “Contact” page to help me correct this. ↩

A Few Words for Addison Parker

Because we don’t say enough about people who matter to us, because we don’t celebrate people who live principled lives, because we should praise people like Addison Parker, I’m posting the letter I wrote to support Addison’s nomination for the Kentucky Justice Association’s Consumer Safety Award. The Kentucky Justice Association honored Addison last week with the award. I missed it, but I am told that J.T. Gilbert did a bang-up job describing the importance of Addison’s career to Kentucky consumers.

Dear Chairman Gilbert and the KJA Awards Committee,

I’m writing today to nominate Addison Parker for the Kentucky Consumer Safety Award. Earlier this summer, Addison retired after decades of service to Kentucky’s consumers as an attorney at the Appalachian Research and Defense Fund (AppalReD). During his time at AppleReD, Addison served Kentucky’s most vulnerable citizens at their most vulnerable moments.

I know that the private bar does not always know what is going on with their brothers and sisters in the legal services community; you may not know, for example, that his legal services colleagues from across the state regard Addison as a titan of consumer law. Practicing in all corners of consumer law, Addison assisted debtors in filing Chapter 7 and Chapter 13 bankruptcies, mobile home owners facing abuse, tenants facing eviction, and homeowners facing foreclosure. He has successfully battled zombie debt collectors, tax lien purchasers, and unscrupulous payday lenders. With bold and creative advocacy forged by a combination of hard work, meticulous attention to statutory and jurisprudential detail, and an unrelenting passion for his clients and his causes, Addison has upheld and expanded the rights of consumers across Kentucky.

When we think of “consumer safety”, most of us think first about seatbelts, airbags, salmonella, and flammable pajamas. If we have learned anything from this last decade, it must be that the negligently designed financial products offered to American consumers can cause just as much (if not more) harm to Kentucky families and our community’s well-being than a negligently designed physical product. Addison recognized this principle decades ago and began battling the powerful banks and financiers who seek to profit through recklessness and fraud long before the present meltdown.

While Addison’s laser-like devotion to protecting Kentucky consumers is admirable standing on its own, Addison’s commitment to mentoring and assisting other attorneys makes his contribution to Kentucky’s legal community truly remarkable. Three years ago, I began defending homeowners facing foreclosure at the Legal Aid Society in Louisville. I could not have been more clueless about how to help someone facing foreclosure. I soon met Addison because he chaired the Kentucky Consumer Law Working Group, which meets quarterly to discuss new developments in Kentucky consumer law. Afterwards, Addison generously spent hours on the phone with me discussing case strategy, explaining the nuances of complicated federal statutes like the Truth in Lending Act (TILA), the Real Estate Settlement Procedures Act (HOEPA), and the Home Ownership Equity and Protection Act (HOEPA). Addison traveled around the state to co-counsel cases with public and private attorneys. He provided trainings to any group willing to listen, whether it was the Kentucky Bankers Association or the Kentucky Equal Justice Center.

Unfortunately, clients of legal services organizations often expect that they won’t get a good attorney because they couldn’t afford to pay an attorney. Many of Addison’s clients came to understand that not only did they get a good attorney, they got the best attorney. An attorney that money couldn’t buy—and I mean that literally. Over his career, Addison passed up numerous, more lucrative opportunities to become a law professor, to become in-house counsel at the National Consumer Law Center, to pursue private practice, and to work in other legal services organizations. His devotion to Kentucky and its most vulnerable citizens is as deep as his contributions to them are numerous. I can think of no better or more appropriate way to honor Addison’s career-long commitment to Kentucky than by honoring him with the Kentucky Consumer Safety Award.

Sincerely,

Ben Carter

My Fake Law School Commencement Address

Here’s a speech I’ll never be allowed to give, but that law students desperately need to hear:

Good morning, thank you for inviting me to give the commencement address to the University of Kentucky College of Law’s class of 2012. This is going to be a real downer.

I don’t want to be this guy. 90% of this speech is just going to be bleak. I can’t help it. Most of what’s happened to you and most of what you’re facing is bleak. 10% is going to be hopeful. I want you to remember that. Hold on to that 10%, because we’re going to start with the other 90.

Here’s the situation: many of you do not have a job. Many of you have massive debt–hundreds of thousands of dollars of debt. Many of you–most of you–have no marketable skills to speak of, even those of you with jobs have been hired mostly for your potential.

It’s no secret that the prospects for graduating attorneys have never been worse. I have good news and bad news. The good news is: as an attorney, you can employ yourself. The bad news is: nothing in your education has prepared you to employ yourself.

If you’re like me, you went to law school because you graduated from college and didn’t really know what you wanted to do with your life. Law school seemed like a good idea because it would “teach you to think like a lawyer.” I didn’t know what this meant before law school, but I was tired of thinking like a Capitol Hill intern slinging tacos at night. “Thinking like a lawyer” had the added bonus of the tantalizing lure of exclusivity. I could join a club and, once in, the mysteries of society would be revealed to me.

In fact, in my admissions essay, I explained that because our culture is a language I expected to learn its grammar in law school.

I didn’t.

And I didn’t learn how to “think like a lawyer.” I still don’t know what this means. Unless “thinking like a lawyer” means thinking, “Holy crap, I only have one lifetime to pay off this debt. I need to get paid!”

As far as I can tell, law school exists to put future lawyers into debt and give them few practical skills in the process. Under a massive debt load and having little ability to actually practice law, graduating law students have little choice but to apprentice themselves in the highest paying job they can find.

The other function of law school is to make you feel okay about this situation. To make it seem natural, orderly, logical.

It’s not.

Learning to “think like a lawyer” too often means “coming to understand that what you do in this world doesn’t matter.” Law school is a process of divorcing you and your values from what you do professionally. Early on, you learn that you are not your client, that you are not what you do. Law school teaches you to think of yourself as merely a participant in an adversarial system. This is not a valueless position. “Participating in an adversarial system” is framed as a higher good than actual good.

You have been told that representing poor people is good because “everyone needs representation.” The reason poor people need representation, you’re told, is because our system cannot work if both sides are not represented. You are not told that poor people need representation because poor people are vulnerable, because they’re more likely to be preyed upon, because they have blood and sinew, mother and sons.

Maybe things have changed, but during my 3 years of law school I was never once asked to consider the law’s role in keeping people poor. We are rarely asked to look behind the law; rather, we are taught to get the black letter law and get out.

Don’t ask why the law is what it is. Just learn what it is and move on.

For those of you who think that being a good lawyer, that thinking like a lawyer, simply requires you to spot the issue, know the rule, apply the rule, and come to a conclusion, I am truly sorry for you. For those of you who went to law school hoping to learn how to meld your values with the practical skills lawyers need to help their clients, I am truly sorry.

For those of you who came to law school to “make a difference” or “fight the good fight” being told that you are merely a “participant in an adversarial system” is a violent challenge to your worldview. If you were miserable in law school, I want you to consider the possibility that this confrontation with this amoral vision of the lawyer’s role in society is partly to blame for that misery.

Being told that it doesn’t really matter what side you’re on is enough to jade just about anyone.

You are not the same person as the person you were 3 years ago. Ask yourself if you are more jaded now than you were before. Ask yourself if you feel less excited about the work you want to do in the world now than you did before. Ask yourself if you think your estimation of the difference you can make in this world has diminished in the last 3 years.

If you feel jaded, if you feel a lack of enthusiasm for the work you are about to do, I want you to consider the possibility that law school is partly to blame. Your challenge now is to learn how to be yourself. What I really mean is your challenge now is to remember how to be yourself. Remember who you were before you viewed yourself as a participant in an adversarial system, before you were told that what you are is a hired gun, a mercenary.

If it doesn’t matter what side you’re on, then that’s what you are: a mercenary. If you view yourself as merely a participant in an adversarial system, than a rational self-maximizer in that system will side with the moneyed every time. Choosing sides only requires learning which side can pay you the highest hourly rate.

What an awful lesson, but it’s one of law school’s most important lesson. It will provide many of you a lot of comfort.

I am here to tell you that you’re more than a mercenary, that choosing sides because of your values, because it’s “who you are” is okay. It’s more than okay. It’s a sign of being human.

I am here to talk to the people who think it still matters what they do on this Earth.

Before I talk about what to do now–now that you’re in debt and facing uncertain job prospects– I want to talk about what should have happened in law school, what should be happening now.

In law school, you should’ve spent your first year developing the practical skills you will need as a lawyer: writing, yes, speaking, yes, but also the active listening you will need to use with your clients and your partners. You should’ve been taught in contexts that simultaneously taught you the real world effect of civil and criminal procedure, contracts, constitutional law.

You should’ve spent your second year apprenticing with practicing attorneys during the day and learning the nuts and bolts of running a law office (accounting, technology, ethics, advertising, Getting Things Done) in the evening.

In your third year, you should’ve taken jurisprudence, electives, classes that encouraged you to reflect on the sociological forces that mold the law, and classes that asked you to confront emerging challenges to our society in the 21st century. Classes that explore modern problems and the potential for lawyers and the law to be part of a solution: prescription drug abuse, the foreclosure crisis, jail overcrowding, immigration. The solutions to these problems probably won’t come from winning a case in court; they’ll come from focused policy research, community organizing, lobbying, and legislation. Law school did not prepare you for this work.

We’re talking about what should have happened. What should have happened is that you should have spent about one-third what you did on law school. Your law school debt should be 33% of what it is. That’s the way it used to be. College is now 3 times more expensive than it was 30 years ago. It’s more expensive in large part because for decades your parents have tolerated declining support for public education, preferring instead to keep their taxes as low as possible. The debt you will be living with for decades is just a small piece of a larger generational war being waged in America today.

If your mom or dad is an attorney, chances are their debt load was far less than what yours is. A law student in 1986 paid $1,645 a semester ($3,226 adjusted for inflation); today, that student pays $16,021—a 400% increase.

Your debt has real implications for the kind of job you can take after law school and your first job has real implications for the kind of expertise and experience you develop. In other words, your debt will dictate who you are and what work you do.

Unless.

Unless you commit today to live as frugally as possible for as long as it takes to have the financial freedom to pursue the work to which you feel called. Your job is to get out of debt as quickly as possible. Get out of your job as much learning and experience as possible, but get out.

You are not a mercenary. You choose sides because you care who wins. Because it matters who wins. Because if your client doesn’t win, justice isn’t done. You are not some cog in a justice-dispensing machine. You are a human being. You have values. You know right and wrong. You have a compassion for the dispossessed, the disenfranchised, the marginalized that compels you to act. You have a God whose claims on your life are undeniable.

Law school taught you to forget yourself and ignore others. It encouraged you to divorce yourself from what you do. This is why so many lawyers are unhappy. I believe we are on Earth to do good work, to alleviate suffering, and seek justice for the oppressed. I believe that what we do matters.

The bad news is you are in debt and facing the worst economy in human memory. The good news is that if you can remember yourself and live frugally, there is no limit to the amount of good work you can do with your law degree. Law school was a miserable experience for me, but being a lawyer is more rewarding than I could have ever imagined. And fun!

What a joy, what a blessing it is to be a lawyer, to have the power to bring wrong-doers to court and seek justice for your clients. To have a loving family and meaningful work to do: can we reasonably ask for anything more from life?

Remember who you are. What you do matters.