Miniature McNamaras: Is that the HLS ideal?

BY ROGER PAO

ON THE FOG OF WAR, ERROL Morris’ recent documentary on JFK and LBJ’s secretary of defense Robert McNamara, Roger Rosenblatt says of McNamara, “If anyone needed proof that high intelligence is a minor virtue, here it is.” A thoughtful McNamara discusses the Tokyo fire bombings and later the Vietnam War, both of which he helped direct, with a certain impassivity. He grasps at morality through logic but apparently cannot fully feel the emotional weight of the personal tragedy that millions of people suffered at his hands. In the face of suffering and death, all seems strangely rational.

Does law school encourage us to become Robert McNamaras? In contracts, for example, we read and discussed Hawkins v. McGee, the infamous case of the doctor whose botched operation caused unsightly hair to grow on a boy’s hand. In class, we observed that the boy’s hand bled badly after surgery, that he could no longer play tennis, and that he was embarrassed by his permanently scarred hand. We discussed the case in the context of damages, and the case was rather “intelligently” discussed.

But what about the fact that the surgery essentially destroyed the boy’s entire life and his family? The boy grew into a man who lived a life of pain and isolation, and his parents never forgave themselves for consenting to the surgery. There was human devastation behind the tragedy: they were not simply symbols of justice (or lack thereof) or means through which to learn legal doctrine, but real human beings. Our contracts professor was surely right in asserting that the plaintiff could not be put in the position he was before. Neither could the defendant, and neither could plaintiff’s and defendant’s lawyers. Everyone involved in the ordeal must have been indelibly changed.

I often wonder about the extent to which lawyers should feel an emotional attachment to their clients and their cases. In First Year Lawyering, we have been taught the proper “display” of emotion in attorney-client interactions but relatively less concerning the actual emotions of the relationship. How should a lawyer feel toward and react to the personal tragedy of his or her client? It must be difficult, if not impossible, to remain totally neutral and detached. Even more generally, how should we feel and react when another person has experienced tragedy? McNamara reacted to genocide in Asia with an analytical stoicism. How could we do better?

Maybe the intimacy between our hearts and the misfortunes of others can be only gradually understood through experience. Maybe the Law School expects us to have grasped such intimacy already – that it is so basic to human nature, it requires no lesson plan. But maybe this intimacy between lawyer and client, person to person, is a source of fear as well, which would account for our reluctance to explore it. Emotions can be scary and liberating at the same time. Our intellect may be partly a defense that prevents us from getting too close to feeling too much, too long, too deeply in order to allow us to continue with our daily routines. A key question might be to what extent we – as law students, future lawyers, and human beings – can and should balance the intertwined branches of the rational and emotional for the sake of others and ourselves. There are no easy answers.

But I still believe that all of us possess the inner strength to help those around us. This strength does not simply come from our intelligence but from our ability to profoundly and unselfishly feel in a world that often seems to discourage such feeling. I do not know if this optimism will fade with the passage of time, but I am certain that it is not false with a certainty that is as difficult to define as happiness and truth.

Robert Pao’s observations will appear in this paper throughout his 1L year.

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