Borenstein's Law Strikes Again

When I began to blog at the urging of my son, one of my first posts (Intro to Borenstein’s Law, originally posted 6/20/2005) was an attempt to answer a question that haunts all criminal defense lawyers: why our clients act so irrationally in a way that seems so stupid, so contrary to their best interests.

I gave many examples, like leaving a wallet at the scene of the crime ... and then reporting it stolen. I now have a case that ranks close to the top. My client, after being questioned by police and jailed, called his girlfriend. During the call he made incriminating statements, despite a loudly intrusive recording that blared every 60 seconds that warned speakers that such calls are monitored and taped.

In my post, I noted that people - not just our clients - act contrary to their best interests so often that it can be called the norm, not an aberration. In fact, supposedly smart people - like Bill Clinton and Dick Nixon - commit reckless acts that satisfy immediate urges without considering the consequences. The drive for sex, money, power and other elemental desires often overwhelms caution, reason, or religious teachings - uh, abusing priests, q.e.d.

Today’s L.A. Times contains an article that confirms my thesis. Discussing South Carolina Mark Sanford’s revelations, the article notes:

"Experts have all kinds of theories about why otherwise intelligent men -- and it's almost always men -- behave so recklessly. Sex and power are inextricably intertwined, as Henry Kissinger famously noted, and some politicians have a hard time reining in the urge for either. ‘If you're one of these Master of the Universe kind of guys, you get to a place where you feel that the rules don't apply to you,’ said Pepper Schwartz, a University of
Washington sociologist who specializes in relationships.

"Frank Farley, a Temple University psychologist, even coined a term -- the ‘Type T personality’ -- to describe politicians' predilection for philandering. The "T" stands for thrill-seeker, which describes the kind of person drawn to a career that, by its nature, requires a willingness to step out of ordinary life and take risks."‘It's not a 9-to-5 job,’ said Farley, a former president of the merican Psychological Assn. who has extensively studied politicians' behavior. ‘It has very high levels of uncertainty, variety, novelty, challenge, unpredictability -- and therefore it attracts a certain kind of person.’ The positive side of that risk-taking is a willingness to expose oneself to that most public of examinations: an election campaign. The downside, Farley said, is relenting to personal urges, like drugs, alcohol or an extramarital dalliance.
　
"‘It's almost built into their personalities,’ he said of many officeholders. ‘Put it together with the opportunities they have, and we should not be shocked when we see it happening.’ "Why the risk? ‘It's hard to understand this if you have not been in passionate love, and it's particularly intense when it's star-crossed,’ Schwartz said. ‘You are pumping adrenaline, testosterone and dopamine -- it's a drug cocktail; you are
intoxicated. And you know what kind of decision we make when we are intoxicated.’"

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.