Wyzga On Words

Q&A Tuesday: How Does An Empty Boat Help You?

Q:    What's the use of an empty boat, especially at trial?

A:    It keeps you cool, calm, clear-headed, and collected, focused on your case and client, impervious to the devious distractions of your opponent designed to mess with your head and throw you off your game.

One of the Dharma talks I listened to during the "Be. Here. Now." retreat I attended at Deer Park Monastery was given by a monk who referred tongue-in-cheek to himself as "Young Brother" although he is actually quite an old brother. He told to a story I had not heard before which traces its telling back to Chuang Tzu, a Taoist sage living sometime before 250 B.C.  Briefly, it goes like this:

 “If a man is crossing a river and an empty boat collides with his own skiff, even though he be a bad-tempered man he will not become very angry. But if he sees a man in the boat, he will shout at him to steer clear. If the shout is not heard, he will shout again, and yet again, and begin cursing. And all because there is somebody in the boat. Yet if the boat were empty, he would not be shouting, and not angry."

His point was how to practice staying the course of calm in the face of some perceived action or word by another that might provoke us to unnecessary anger or rage.

So often it's our perceptions that make us crazy.  Zen Buddhism would say that most of our suffering is caused by our own perceptions.  And the notion of "colliding with an empty boat" is way to remind us that even if life is suffering we do not have to seek crucifixion.

In trial so often I've seen good lawyers go off the deep end because their opponent is just "messing with their head." If an emotion is true and serves you, by all means use it.  Those that distract you from the task at hand only dilute your effectiveness.

If you would like to read a bit more on the teachings of "An Empty Boat" click here to read David Nelson's post as he muses on the teachings during his drive home from our retreat on the mountain.

David's post is a good reminder that I have many many miles of river to practice.  At the very least I more fully appreciate a bumper sticker I saw recently that read, "When Jesus Christ said, 'Love your enemies' I think He probably meant 'Don't kill them.'"

Q&A Tuesday: Do You Love Your Work & Your Firm?

Q:    Do you love your work and your firm?

A:    In back-to-back articles the attorneys of Cravath, Swaine & Moore reflect on how culture and doing things differently keeps the firm and its lawyers together.

James B. Stewart writing for the NYTimes, "A Law Firm Where Money Seemed Secondary," reflects on his personal experiences as a new associate at the Manhattan Plaza headquarters of the law firm Cravath, Swaine & Moore.  Stewart notes with some affection the values that kept the firm together decades ago - and apparently does today.  Excerpt.

"Finally it came to me: The one thing nearly all the partners had in common was they loved their work.

This came as a profound revelation. Of course they worked long hours, because it didn’t feel like work to them. They took great satisfaction in the services they rendered their clients."

Eventually Stewart leaves the firm.  But he says that by doing so he was paying the firm the highest compliment.  Excerpt.

"You couldn’t fake this. The partners seemed to have some sixth sense. I enjoyed my work. But I had to admit I didn’t love it the way they did.

At times I found this mystifying. How could anyone tackle a complex tax problem with such enthusiasm? Or proofread a lengthy indenture agreement? Why couldn’t I love a prestigious, high-paying, secure job like they did?

At the same time, it was liberating. It was obvious to me that someone who loves his or her work, whatever that might be, has a huge competitive advantage, not to mention a satisfying and enjoyable life. Somehow people who love what they do seem to make a living. So I started pondering what I might love as much as some of my Cravath colleagues loved practicing law."

A turn of the page finds yet another article on Cravath.  This one by Peter Lattman, "Culture Keeps Firms Together in Trying Times," again reports the similar theme: a way of being among lawyers in a firm that to some may seem trite and out-dated is actually the respectful and business-savvy glue that holds it together.  Excerpt.

"“The big question was not whether she [Christime A. Varney] was a good lawyer, but whether she was a Cravath partner,” said Evan Chesler, the firm’s outgoing presiding partner. “Would she be a good fit?”

A few weeks later, the Cravath lawyers assembled and unanimously voted her into the partnership. She received no signing bonus, no guarantee, no special deal. Instead, Cravath is paying her according to the firm’s seniority-based, lock-step system, which sets the spread between the highest- and lowest-paid partners firmly at 3 to 1.

“We’re not going to buy a lawyer with a big guarantee,” Mr. Chesler said. “That’s not how we do things. That’s not the Cravath way.”

The Cravath way? Really? One might dismiss such high-minded rhetoric as idealistic poppycock from a white-shoe lawyer hanging on to antiquated notions about the practice of law.

But the Cravath way, and Mr. Chesler’s impassioned views about law firm partnerships, may be worth paying attention to at a challenging moment for corporate law firms."

As another class of law school graduates readies themselves to take the bar exam and enter the legal profession, they could do a lot worse than looking to align themselves with firms whose culture fits them, that they respect, that they can come to love as much as the work they will be doing over their lifetime. 

 

Listen Well - A Website Of Spoken Word You May Enjoy.

As was told to me yesterday by a long-time litigator, the law is not only a jealous mistress, she can be a lethal one.  Peace, quiet, a moment of serenity, the opportunity to breathe and listen are not often part of the litigator's (or litigation consultant's) lifestyle.  But we can adjust that.

You never know where you'll find an idea.  One of the delightful features of The New Yorker magazine is the side column advertisements, each one about the size of a postage stamp.

Here is a site you may enjoy visiting:

Listen Well: a spoken word website of stories.

 

How Do You Move A Mind? Tell An Emotionally Meaningful Story.

 

I never excelled at math but I understood enough about formulas to create this one decades ago:

"content + context + value = emotionally meaningful story"

What does it mean?  Lawyers are storytellers. Your client's legal story depends on power, passion and precision to develop and deliver a persuasive argument. Otherwise, the story is equivalent to "water, fire, marshmallows, silicone - now draw your conclusions."

Our justice system turns on legal elements.  But those legal elements came about because somebody did something to somebody else under a set of circumstances.  Facts are necessary to prove the case; but it is the personal, emotional and conflicting aspects of the case that create compelling stories from the same forensic fact pattern.

Whether you are writing a brief, preparing for alternative dispute resolution or presenting your case to a jury, there is no substitute, no silver bullet, no simple technique that substitutes for hard work, creativity and this formula: content + context + human value = emotionally meaningful story.

The same holds true for anyone who uses narrative to relate, motivate, innovate, incite, appeal, agitate, and so on.

Click here to read Maggie Koerth-Baker's article, "The Mind of a Flip-Flopper," delving into the scientific research studying moral attitudes, the ways in which emotions and attitudes interact and, how to change a strongly held belief.  Excerpt.

"Moral attitudes are especially difficult to change, Haidt said, because the emotions attached to those preferences largely define who we are. “Certain beliefs are so important for a society or group that they become part of how you prove your identity,” he said. “It’s as though we circle around these ideas. It’s how we become one.”

We tend to side with people who share our identity — even when the facts disagree — and calling someone a flip-flopper is a way of calling them morally suspect, as if those who change their minds are in some way being unfaithful to their group. This is nonsense, of course. People change their minds all the time, even about very important matters. It’s just hard to do when the stakes are high. That’s why marshaling data and making rational arguments won’t work. Whether you’re changing your own mind or someone else’s, the key is emotional, persuasive storytelling."  [emphasis added.]

How come story works this way? Here's one answer: 

"Timothy Wilson is a psychology professor at the University of Virginia and the author of the book “Redirect,” about how we change our minds and behavior. Stories are more powerful than data, Wilson says, because they allow individuals to identify emotionally with ideas and people they might otherwise see as “outsiders.” Wilson says researchers speculate that children who grew up seeing friendly gay people on TV will be more likely to support gay marriage as adults, regardless of other political affiliations and religious beliefs. Once you care about a character, Wilson says, you can find a way to fit them into your identity."  [emphasis added.]

TIP:    content + context + value = emotionally meaningful story.

 

What To Do When Your Witness Forgets? Step By Step By Elliott Wilcox, Attorney At Law.

“What to Do When Your Witness Forgets”

by Elliott Wilcox

Things were going great.  You'd picked a fantastic jury, delivered an opening statement that got the jurors cheering for your client to win, and your first three direct examinations had gone better than you could have hoped.  Now, halfway through the direct examination of the day's final witness, things are still going exactly as planned.  Your witness is completely prepared, easily answering all of your questions without hesitation, and the jurors are hanging on his every word, completely enraptured by the sound of his voice.  But then, midway through your examination, something unexpected happens when you ask this crucial question:

Q.  “What is the worst fraternity on this campus?”

A. “Well that would be hard to say, sir.  They're each outstanding in their own way...”

Every other time that you've asked this question during your pre-trial preparations with this witness, he's been quick to identify the offending fraternity.  But now, his brain seems to have gone blank. 

[With apologies in advance to Speed fans]:
“Ok, pop quiz, hotshot. The witness has just given you an answer you didn't expect.  If you try to ignore it, the bad answer will destroy your case.  If you try to lead the witness to the correct answer, your opponent will object.  What do you do?  What do you do?”

First things first: DON'T PANIC! 

Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses.  The worst thing you can do at this point is to give your jurors the impression that you've just lost the case.  Chances are, the witness's incorrect answer isn't nearly as fatal as you think it is, so put on your poker face.  If you freak out, the jury will amplify the importance of the negative answer.  Just keep your cool -- you can fix this.

The next step, before you start jumping through evidentiary hoops trying to refresh the witness's recollection or establish a past recollection recorded, is to ensure that your witness really doesn't remember.

“What do you mean, 'ensure that he doesn't remember'?  Of course he doesn't remember, because otherwise he would have answered my question correctly!”

Actually, that's not necessarily true.  Often, witnesses know the correct information, but the reason why they don't answer correctly is because we ask them lousy questions.  Before you attempt to refresh his recollection, take responsibility for asking a lousy question, and then try asking your question a different way to see if that jogs his memory.  For example, set some parameters for your question, and make it easier for the witness to answer:

Q. “Based on their GPA's and disciplinary records, what is the worst fraternity on this campus?”

A. “Oh, that would be Delta house, sir.”

Sometimes, that's all you'll need to do to get the right answer.  But if rephrasing the question doesn't work, you can also try asking for the information in a different manner.  Are there other questions you could ask that get the same answer?  Consider stacking those questions on top of one another:

Q. “Who dropped a whole truckload of feces into the swim meet?”

A. “Delta house.”

Q. “Who delivered the medical school cadavers to the alumni dinner?”

A. “Delta house.”

Q. “Every Halloween, the trees are filled with underwear.  Every spring, the toilets explode.  Which house is responsible for these shenanigans?”

A. “Delta house.”

Q. “What is the worst fraternity on this campus?”

A. “Delta house, sir.”

Q. “Of course I'm talking about Delta, you TWERP!”

It's not as graceful as the first method,  but it still gets you to the correct answer without having to ask any leading questions.  But let's say none of these rephrasing techniques are working.  Regardless of how you rephrase the question, your witness still can't remember.  What do you do then?  When you've exhausted rephrasing techniques, the next step is to refresh the witness's recollection.

Jurors understand that witnesses sometimes need help remembering details.  For example, if I asked you what you were doing on July 10th of last year, you probably wouldn't be able to remember.  But, if I gave you a chance to look at your calendar, you could probably tell me exactly where you were and what you did.  That's the reason why the rules of evidence allow witnesses to refresh their recollection.  Here is the process you'll need to follow to help your witnesses remember:

Step 1.  Show that the witness can't remember.

Q. “What is the worst fraternity on this campus?”

A. “I can't remember.” 
A. “I don't know.” 
A. “I cannot recall.”
A. “I used to know, but I can't think of the answer right now.”

Showing the witness's lack of memory is an essential step that can't be overlooked.  Unless you can show that the witness doesn't remember, you won't be allowed to refresh his recollection.  There's a world of difference between the witness who can't remember and the witness who remembers the wrong answer.  You can't refresh a witness's recollection simply because he's giving you a bad answer.  (You can impeach him, but you can't refresh his memory.)

Step 2.  Show that the witness previously remembered the information.

Q. “Did you used to know which fraternity was the worst on campus?”

Q. “Prior to today, did you have an independent memory of which fraternity was the worst one on campus?”

Q. “DId you previously remember which one was the worst?”

Step 3.  Ask the witness if there's anything that would help refresh his memory.

Q. “Would it refresh your recollection to look at your report?”

A. “Yes, if I could review my report, that would help me remember.”

Q. “Is there anything that would help you remember?”

A. “Yes, if I could smell a whiff of stale beer and listen to Otis Day and the Knights singing 'Shout,' I think that would refresh my memory.”

Q. “What do you need to help you remember?”

A. “If you'd let me smash a beer can against my forehead, that always triggers my memory.”

The important thing to remember about refreshing memory is that you're not limited to showing the witness documentary evidence.  Typically, you're going to use written documents to refresh witnesses' memories, but understand that you're not limited to paper exhibits.  If there's anything that helps the witness remember, you should be permitted to use it to refresh their memory.

During this step, it's often worthwhile to have the witness explain to the jury why the item will refresh his memory and why he needs some help to remember.  For example, let's say you're dealing with a police officer who makes lots of DUI arrests each year.  By the time the case reaches trial, it's understandable that he might need some help remembering the exact details of this arrest, as opposed to the dozens of other cases he's worked.  Before he uses his report to refresh his memory, you'd want to ask him about the report.  “How soon after the arrest did you write the report?  Why did you write it?  How detailed does it have to be?  How accurate are you when you write it?  What details do you include?  Is it intended to help you remember details about the case months, years, or even decades afterwards?”  By asking those details, you help show the jurors that the refreshed memory will be accurate.

Step 4.  Show the refreshing item to opposing counsel.

Step 5.  Show the refreshing item to the witness, asking the witness to examine the item silently, and then look back at you when he's finished.

Step 6.  Ask the witness if his memory has been refreshed.

Q. “Having reviewed your report, does that refresh your memory?”

Q. “Did smelling the stale beer and listening to 'Shout' help you remember what fraternity is the worst on campus?”

Q. “Now that you've smashed a beer can on your forehead, are you able to remember which fraternity is the worst on campus?”

[If the item doesn't refresh his memory, you can still try to get the testimony in through the “Past Recollection Recorded” evidentiary predicate, but you won't be able to use the “Refreshing Recollection” predicate.]

Step 7.  Once the witness has refreshed his memory, re-ask your original question.

Q. “Now that you've refreshed your memory, please tell us, what is the worst fraternity on campus?”

A. “That would be Delta house.”

It's a good practice tip to tell your witness to turn over the document before answering, so the jury can see that he's testifying from his refreshed memory, and not merely reading aloud from the document.  The jury wants to see that the witness has an independent memory of what happened, and isn't merely parroting what he just read.

Hopefully, you'll never run into the problem of having a witness forget what to say.  But, if you decide to try cases in the real world, sooner or later, it's bound to happen.  When it does, use these quick tips to help refresh your witness's memory, and your case will be back on track before anyone even notices.

WANT TO USE THIS ARTICLE IN YOUR EZINE, WEBSITE, OR BAR ASSOCIATION PUBLICATION? You can, as long as you include the following blurb with it: Elliott Wilcox publishes Trial Tips Newsletter. Sign up today for your free subscription and a copy of his special reports: “How to Successfully Make & Meet Objections” and “The Ten Critical Mistakes Trial Lawyers Make (and how to avoid them)” at www.TrialTheater.com

Fear Or Compassion? Which Motivates Action?

I've been reluctant to kick the hornet's nest on this one.  Folks seem pretty divided on The Reptile Theory.  Like Paris - you either love it or you hate it.

The notion that we should regard jurors as reptiles to get some huge verdict out of them by playing to their fears has always struck me as cold-blooded, and not a little inhuman.  How we regard people and things becomes how we treat them.  I felt so strongly about this I co-wrote an article with Stephanie West Allen and Jeffrey Schwartz for The Jury Expert entitled "Atticus Finch Would Not Approve."  [Click AllenSchwartzWyzgaTJEMay2010 to read.]  My position has only strengthened.

I used to work with a beekeeper who insisted on calling the honeybees "really angry" when they reacted to us opening the hive boxes.  He treated them as if they were somehow "really angry."  He over-smoked them.  He was tense, jumpy and afraid.  His physical actions conveyed fear.  At the end of the day working with him I was a wreck.

And yet, there was nothing to fear.  We were suited up for the job.  We would get head-bonked by some of the guard bees; but that was normal behavior.  No bees chased us or swarmed us.  A honeybee has to be truly threatened to sting; when she does she rips out her guts and dies.  Not an action to be taken lightly. 

When I was trained as a beekeeper I was told to remember, "No jerks in the beeyard." While I have not yet gotten to the stage where I will work my hives wearing only a veil, I know that to bee Zen keeps everyone - beekeepers and honeybees - calm.

It works with people, too.  The Science of Compassion by the social scientist David DeSteno writing for the NYTimes shares the results of scientific research that shows empathy with the suffering of others is alive and well.  Excerpt:

"As a social psychologist interested in the emotions, I long wondered whether this spiritual understanding of compassion was also scientifically accurate. Empirically speaking, does the experience of compassion toward one person measurably affect our actions and attitudes toward other people? If so, are there practical steps we can take to further cultivate this feeling? Recently, my colleagues and I conducted experiments that answered yes to both questions.

In one experiment, designed with the psychologist Paul Condon and published in the Journal of Experimental Social Psychology, we recruited people to take part in a study that was ostensibly about the relation of mathematical ability to taste perception — but that in actuality was a study of how the experience of compassion affects your behavior.

In another study, published in the journal Emotion, the psychologist Piercarlo Valdesolo and I conducted an experiment ostensibly about music perception — but that actually investigated how feelings of compassion might be increased.

Our hunch was that compassion is easiest to feel when you have a sense of commonality with someone else."

And what did the scientists find?  Excerpt:

"What these results suggest is that the compassion we feel for others is not solely a function of what befalls them: if our minds draw an association between a victim and ourselves — even a relatively trivial one — the compassion we feel for his or her suffering is amplified greatly.

What does this mean for cultivating compassion in society? It means that effortful adherence to religious or philosophical dictums (often requiring meditation, prayer or moral education), though clearly valuable and capable of producing results, is not the only way to go. There is nothing special about tapping in synchrony; any such commonality will do. Increased compassion for one’s neighbor, for instance, can come from something as easy as encouraging yourself to think of him as (say) a fan of the same local restaurant instead of as a member of a different ethnicity.

Simply learning to mentally recategorize one another in terms of commonalities would generate greater empathy among all of us — and foster social harmony in a fairly effortless way."

I am not Pollyanna enough to believe that I can buy someone a Coke and the world will live in perfect harmony.  

I agree that there is fear in the world.  Look at everything from video games to the nightly news to the most recent midnight movie massacre in Aurora, CO.  You will get more than your share of a diet of human suffering. 

But fear does nothing to improve the situation - fear causes us to hide, bar the doors, become complacent.  Ironically, when we feel an empathy, a compassion for the situation we will act - whether for gun control, mental health, local food, a jury verdict, whatever.  How does it work this way?

"What these results suggest is that the compassion we feel for others is not solely a function of what befalls them: if our minds draw an association between a victim and ourselves — even a relatively trivial one — the compassion we feel for his or her suffering is amplified greatly."

Like my friend the angry beekeeper, you get what you name.  Whether or not the honeybees were "really angry," he perceived them as such and treated them that way.  It was how he perceived them that created the expectation of harm. 

I've had enough of fear.  I prefer to be on the side of those who encourage a deep compassion for human suffering and from that place articulate for action to lessen the plight of others.

Q&A Tuesday: How Does Storytelling Help Me As Well As My Client?

Q:    How does storytelling help me as well as my client?

A:    Stories are the stuff of daily life.  When we commit to becoming part and parcel of the story we need to tell on behalf of another, the commitment expands our awareness of our humanity.  From this place we become increasingly empathetic, compassionate, and relatable to other human beings, more authentic, believable and better at persuading, too.

Some years back I wrote an article with San Diego attorney Jim Parziale entitled, "Once Upon A Client - The Power of Persuasive Legal Storytelling."  [Click on the title to access the pdf.]  It's a treasure trove of information, thoughts and ideas gained over decades of my storytelling work which became translated into the litigation arena.  I bet you will recognize in these words much of what I have been speaking, teaching and writing about for almost 15 years.

I trust that this work will be of help to you and your clients.  If you intend to use it, please remember the integrity of attribution.

Do You Really Want & Need That High-Priced Law Degree?

Hidden on a back page of the NYTimes instead of prominently displayed on a front page is a piece by Lincoln Caplan, "An Existential Crisis For Law Schools" that bears serious attention by law students, lawyers and, most critically, law schools. 

A few decades age you went to law school, took the bar exam, passed the test and got a job.  A good job.  One that would help pay down that $50 grand of tuition debt.  Like many other things in the legal profession - one of my litigator gurus predicts no more trials in 5 or 10 years - the promise of a job after law school has shifted.  Excerpt.

"Only 55 percent of 43,735 graduates in 2011 had a law-related job nine months after graduation, said William Henderson of the Indiana University Maurer School of Law, who analyzed recent data from the American Bar Association. Twenty-eight percent were unemployed or underemployed. And at the 20 law schools with the highest employment, 83 percent of graduates were working as lawyers. At the bottom 20, it was a dismal 31 percent.

These numbers are far worse than jobs data going back a generation and should be a deep embarrassment to law schools, which have been churning out more graduates than the economy can employ, indulging themselves in copious revenues that higher tuitions and bigger classes bring in. A growing list of deans acknowledge that legal education is facing an existential crisis, but the transformation to a more sustainable model will be difficult and messy.

The number of law office jobs began to decline in 2004, well before the recession. And demand for new lawyers isn’t expected to grow much even when the economy recovers. Outsourcing of legal work to places like India and greater efficiencies made possible by smarter software to search documents for evidence, for example, are allowing firms to cut the positions of multitudes of low-end lawyers. In 2009, twice as many people passed bar exams as there were legal openings — a level of oversupply that may hold up for years. There is, of course, tremendous need for lawyers to serve the poor and middle class, but scant dollars to pay them.

Law schools have hustled to compensate for these shifts by trying to make it look as if their graduates are more marketable, even hiring them as research assistants to offer temporary employment. But those strategies won’t fix legal education, particularly when students are starting to see that a high-priced degree, financed by mountains of loans, may never pay off. The number of people taking law school admissions tests fell 24 percent in the last two years, to the lowest level in a decade. Law schools will be crushed if they don’t remake themselves, said Frank Wu, dean of Hastings College of the Law at the University of California in San Francisco. “This is Detroit in the 1970s: change or die.”"

TIP:    Law firms are slow to change; law schools are even slower.  It's up to you to decide what you want and need for your life.

TIP:    Do you cut your losses and quit or press on?  This post might give you something to think about: "Cut Your Losses Or Finish."

TIP:    A few years old, but the wisdom and observations are relevant: "A Lot Can Change In A Year."

Q&A Tuesday: Why Should Lawyers Care About Marriage?

Q:    Why should lawyers care about the institution of marriage?

A:    As the institution itself seems to declining, the legal definition of marriage is up for grabs.

As reported by Aja Gabel in the current issue of The University of Virginia magazine, The Marriage Crisis, marriage has declined over the past 50 years and continues to decline.  Excerpt.

"Only about half of Americans are married now, down from 72 percent in 1960, according to census data. The age at which one first gets married has risen by six years since 1960, and now only 20 percent of Americans get married before the age of 30. The number of new marriages each year is declining at a slow but steady rate. Put simply, if you are an unmarried adult today, you face a lower chance of ever getting married, a longer wait and higher divorce rates if you do get married. The Pew Research Center recently found that about 40 percent of unmarried adults believe that marriage is becoming obsolete.

While marriage is in decline, unmarried cohabitation is on the rise. Fifteen times the number of couples today live together outside of marriage than in 1960. Almost half of cohabiting households include children.

Why should we care about what may be a failing institution? Brad Wilcox, U.Va. sociology professor and director of the National Marriage Project, argues that the institution of marriage still symbolizes core values important to intimate relationships.

“Marriage conveys a sense of meaning, purpose, direction and stability that tends to benefit adults and especially children. People who get married have an expectation of sexual fidelity, and that fidelity tends to engender a sense of trust and security,” Wilcox says. “There is no kind of similar solemn ritual marking the beginning of cohabitation.”

Allison Pugh, also a U.Va. sociology professor, has a slightly different take on it. She says that it isn’t so much the institution of marriage that is important, but rather how well a family cares for children, regardless of its structure. Children need stability, nurturing and love, but both married and unmarried parents can provide those things, Pugh says.

Is America having a “marriage crisis?” Certainly, the institution of marriage is changing and it’s worth taking a look at why and where it might end up. It’s a question that a number of researchers at U.Va. are trying to answer by exploring the role of women in the workforce, emotional expectations for partnership and marriage’s benefits or costs to individuals and families."

In an nutshell, what has changed?  Women became "liberated."  We obtained college educations and entered the workforce.  While discrepances in equal pay and opportunity continue to exist, women have more choices available to them while society seems ready, albeit resigned, to let us have them.  Personal fulfillment is a goal rather than a tantalizing dream. Divorce is more acceptable than shameful.  Birth control translatesinto higher economic brackets for both partners as women take control of their fertility and their earnings.

Ultimately, marriage in America has changed because Americans have changed:

"Marriage has changed because America has changed. We can’t return to the model of marriage from the mid-20th century because we no longer live in the culture or the economy that created it. And some would argue that we wouldn’t want to return to it even if we could. Both men and women have greater choice than they did 50 years ago not only in regard to whom they marry, but also if they do and what kind of family they want to build. And, if the experts agree on one thing, it is that these choices are some of the most important we make for our own happiness."

Click here to read more about the changing legal definition of marriage. 

Which brings me to where things stand with the Prop (H)8 Trial.  No one was more surprised than I to learn that the good - albeit sometimes whacko - folks in my adopted state of California swigged, chugged and guzzled the Kool-aid before adopting Prop(H)8 banning same-sex marriage.  Surely, we are at least as liberal as Vermont, as smart as New York, as socially savvy as Massachusetts.  But no.

Do you want to know where things stand with the Prop 8 trial?  Click here to read an exceptionally nuanced 5-part series exploring the future of Defense of Marriage Act (DOMA), the Prop 8 trial and marriage equality.

What is particularly broad-minded about the series is the author's willingness to step beyond the two cases (DOMA and Prop 8) to reflect upon the more global topic of the future of marriage equality in the United States.  Excerpt.

"A vision of the future of marriage equality in the United States

Yesterday, I argued that the DOMA case should be decided before Prop 8 because it fundamentally changes the arguments to be made against California’s marriage ban, and other bans like it across the nation.  Today, I want to take that a step farther and look past the two cases to the future of marriage equality in general.

Marriage equality currently stands at a tipping point in the United States, will polling beginning to shift to the majority in our favor, DOMA and Prop 8 at play before the Supreme Court, and marriage referenda in three states in November.  While the legislative and judicial tracks are currently moving in parallel and do effect each other, I believe that the legislative track will eventually (and within the next few years) be exhausted, and further victories will have to come through the courts.  A Supreme Court ruling on DOMA this year, rather than Prop 8, puts the marriage movement on more solid footing for the future."

Folks, the times they are a changin.

What was it that Aaron Sorkin said in his commencement address to the graduates of Syracuse University?

MR. SORKIN “You’re too good for schadenfreude, you’re too good for gossip and snark, you’re too good for intolerance — and since you’re walking into the middle of a presidential election, it’s worth mentioning that you’re too good to think people who disagree with you are your enemy.”

Advice To Graduates: Life Will Be Hard; Make Mistakes; Fix The World; Be True To Yourself; And So On.

Elliott Richardson gave the commencement address to my college graduating class.  I don't remember what he said so much as what he had done: as attorney general he stood up to then-President Richard M. Nixon and refused to fire the Special Prosecutor investigating Watergate.  His moral stand and subsequent resignation hearkens back to a much earlier time, one that Maureen Dowd longs for in her editorial, "Moral Dystopia."  Excerpt.

"EVERYONE is good, until we’re tested.

We hope we would be Sir Thomas More in “A Man for All Seasons,” who dismisses his daughter’s pleas to compromise his ideals and save his life, saying: “When a man takes an oath, Meg, he’s holding his own self in his own hands. Like water. And if he opens his fingers then, he needn’t hope to find himself again.”

But with formerly hallowed institutions and icons sinking into a moral dystopia all around us, has our sense of right and wrong grown more malleable? What if we’re not Thomas More but Mike McQueary?"

Richardson was tested.  His actions are his legacy.

It would be too easy to say that in the years since I stood alone and applauded Richardson's address I became a lawyer and stood up to wrongdoers to model his role.  My mother would just tell you that I was always a head-strong independent soul rooting for the underdog while marching to a distant drummer.

What I do want to know is what today's graduates will take from the plethora of commencement speeches given by the notables and quotables whose earnest, funny, somber and encouraging words come to us in snippets in todays NYTimes, "Familiar Faces Offering Advice, Idealism and Humor."  Excerpt.

"But uplift and idealism still ruled. Graduates were exhorted to do great things, look out for others and maybe, just maybe, put aside their electronic devices for a few minutes. The nearest to universal advice was that graduates should chase what they love, and heal what ails humanity."

Here are a few of my favorites:

NEIL GAIMAN, AUTHOR

University of the Arts

“Nothing I did where the only reason for doing it was the money was ever worth it, except as bitter experience. Usually I didn’t wind up getting the money, either.” “Things go wrong, in life and in love and in business and in friendship and in health and in all the other ways that life can go wrong. And when things get tough, this is what you should do: make good art. I’m serious. Husband runs off with a politician? Make good art. Leg crushed and then eaten by mutated boa constrictor? Make good art. I.R.S. on your trail? Make good art. Cat exploded? Make good art. Somebody on the Internet thinks what you do is stupid or evil, or it’s all been done before? Make good art.”

LAWRENCE LESSIG, LEGAL SCHOLAR

John Marshall Law School in Atlanta

“There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. ... The law of real people doesn’t work, even if the law of corporations does. ... The law has convinced most Americans that the law is for the rich, except that part of the law that involves the prisons. We, all of us, have a duty to fix this. To repair this. To make it better.”

CORY A. BOOKER, MAYOR OF NEWARK

Bard College

“Go out there and swear to this world your oath, not with your words, but with what you do. Not with your hand over your heart, but with your hand outstretched to a world that desperately needs your hand, your help, your insights, your creativity, your honor, your courage. It needs you.”  “My dad would always tease me: ‘Boy, don’t you walk around here like you hit a triple. You were born on third base, boy.’ ... I drink deeply from wells of freedom and liberty that I did not dig. I eat lavishly from banquet tables prepared for me by my ancestors. I sit under the shade of trees that were planted and cultivated and cared for by those who I will never know.”

AARON SORKIN, WRITER AND PRODUCER

Syracuse University

“To get where you’re going, you have to be good, and to be good where you’re going, you have to be damned good. Every once in a while, you’ll succeed. Most of the time you’ll fail, and most of the time the circumstances will be well beyond your control.”  “You’re too good for schadenfreude, you’re too good for gossip and snark, you’re too good for intolerance — and since you’re walking into the middle of a presidential election, it’s worth mentioning that you’re too good to think people who disagree with you are your enemy.”

To those of you setting out, every good wish for health, prosperity and joy.  For those of us still on the road take a moment to thank and learn from the ones on our (aging) heels.