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Saturday, January 27, 2007

The Joys of Procrastination

Some time ago I read an L.A. Times article about a recent study concluding that the 218 earlier studies on the causes and cure of procrastination were incomplete. This one concluded that “perfectionism” and “anxiety” are less important than “impulsiveness.” Seems that most procrastinators aren’t as much interested in the future as in immediate pleasure, so they put complicated things off.

I like this idea because it conforms to my general thesis based on my own experiences which I modestly call “Borenstein’s Law.” Most criminal defendants are not deep thinkers. They mean well, intend to finish school, get that job, treat their addiction. But somehow they never quite get around to any of it. A homie calls, a party awaits, a girl text messages. And they are lured from that never ending freeway that leads to the straight life. All those sexy off ramps are irresistible.

There is another twist that appeals to me. I theorized that our clients are not all that much different from the rest of us. We all act in a way contrary to our best interests for many reasons, not the least of which is the impulse for pleasure. And I also deduced that for most, this is not always a bad thing. Taking risks can lead to happiness, as our pop culture often remind us. Who finds love and happiness in the movies? Not the workaholic but the free spirit.

Many of the studies were done with college students of course with an eye toward giving advice though I find most of it not very helpful. They give suggestions like:

make to-do lists,
be satisfied with rough drafts,
start with the easiest task,
avoid distractions,
keep trying,

These are like telling an insomniac to get some sleep. Actually, I imagine many procrastinators are also insomniacs and they’ve heard all this many times before.

Having been a procrastinator most of my life, I have my own takes on the subject. Thinking about the reasons for procrastinating is one of my favorite ways to procrastinate. For me, anxiety is a great reason to avoid less pleasant tasks.

My brother who used to espouse Freudian psychotherapy back when pipe smoking and crew cuts were also in fashion parroted a mantra about “the path of least resistance.” I don’t remember whether that was intended as a pejorative term, but I have always found that path easier on my back than the bumpier “path of most resistance.”

When I was a public defender faced with a stack of case files, each representing problems with varying degrees of insurmountability, I tended to deal with the easier ones while putting aside the harder cases until a later day. If I was lucky, that later day might never come. I could be transferred to another assignment and my hard cases would be re-assigned to some other fool. I considered that a winning strategy, except that the cases I inherited in my new assignment always turned out to be my predecessor’s chronic backaches. Yet, that often turned out well, because my “fresh eyes” were able to dispose of these hard cases more easily.

Then too the process of delay often benefits the system. Justice delayed can be justice served, to coin a phrase. Old cases are everyone’s sores and a properly aged case can ripen into a good result because everyone in the process — defendants, judges, prosecutors, witnesses, etc. — simply runs out of passion and wants finally to get it over with at any cost.

The same dynamic works with tasks that have deadlines far away. Putting them off until the night before forces an efficient use of time and concentration. Some people simply work better under the gun.

I have found that some especially difficult problems demand radical approaches — like doing nothing. I can’t tell you how many times I have anticipated storm clouds, spent sleepless nights devising strategies to confront them, and then found that they are solved or have disappeared or turned out to be mere sprinkles without any action by me. This works as well with personal issues as with work problems.

But there is a caveat: doing nothing is risky. It can work with banks and governments who sometimes “forgive” slackers more easily than conscientious customers. In matters of the heart it is not always a good idea. For instance, I am thinking about that nettlesome problem of gift choosing. I have always found that issue to be one of the hardest to face and therefore tend to put it off, a dangerous non-strategy. It is ironic that those you love are less forgiving to procrastination than cold hearted institutions, but there you are.

Sunday, January 14, 2007


A FAQ from clients to their lawyers: “Do you believe I’m innocent?”

My mind races. Here’s what I want to say.

“It isn’t a matter of belief. I’m neither an athiest nor a fanatic. I’m an agnostic - not enough proof either way. But whatever, I’m here to represent you regardless of what I believe. My job is to evaluate the evidence against you, gather evidence for you, make the best arguments for yours and against theirs."

That doesn’t satisfy too many defendants facing jail or prison. What they want to hear is that you are committed to their side no matter the evidence, that you have a strong faith in their innocence no matter the facts against them.

Defendants have no faith. They are cynics - their only core belief is that the system is bent against them and the right lawyer can bend it in their favor. If it breaks, that's okay, too.

The problem is insoluble and quite sad, really. Faith is a plus, maybe even a necessity for some of life's issues - like love and God - but not others - like the ones lawyers have to struggle with.

And probably not in formulating a foreign policy, either.

I can’t help applying my legal experience to the debate over Iraq. Lawyers are taught to argue effectively by using a more or less rigid form of logic that includes concepts like evidence, inferences, and burden of proof. We are taught to approach problems by examining facts, framing issues, and stating rationales for conclusions.

Over the years, I’ve learned to distinguish plausible arguments from bad ones. When I hear Bush and his supporters argue that opposition to the current policy should be ignored unless accompanied by an alternative policy, I can’t help imagining how this argument would apply in a courtroom.

I imagine a D.A. arguing that although all of the evidence supporting his case has crumbled, his witnesses impeached, his evidence rebutted, the judge should still rule in his favor unless the defendant can prove his innocence by showing who really is guilty.

I hear the argument that although every rationale for the invasion and occupation of Iraq proved false, the policy should be continued because the consequences of withdrawing might be disastrous.

It reminds me of the old joke about the lawyer for a son who killed his parents arguing for mercy because his client is an orphan.

Jurors are instructed that a witness who has lied or been proven wrong in one part of his testimony should be distrusted in others.

Imagine a DA arguing that although all the evidence on which he based his assertion of the defendant’s guilt in his opening statement proved to be false, the judge should still convict the defendant because the consequences might be disastrous.

In fact, this argument is one that DA’s do make. Convict this gang member despite the lack of evidence of guilt in this particular case in order to “send a message” to the community and to deter others from gang crime.

Don’t get me wrong. The Law doesn’t have all the answers to life’s problems. And lawyers aren’t necessarily better than others in solving them. But I find it interesting that many of the proponents of the above arguments are not lawyers, Bush and McCain among them.