August 18, 2019: “I don’t know”: The Case of the Duke Law Professor

Once upon a time. (ALL good stories start, “once upon a time”. I read that somewhere.*)

I was attending a continuing legal education seminar; this would have been 1989 or so, or once upon a time. It was about ethics, in or near Durham, NC.

I remember it for two reasons: I ran into this character from my old law firm, which I had left a couple of years before, and he lowered his head and smiled at me flirtatiously and said, “I miss your good work.” The only possible response to that should have been “Oh, fuck off, you hypocritical asshole,” but, being young and timid, I didn’t say anything. Would that I could run into Charles T. Hagan III again someday. He’ll come up again.

The other memorable moment of this CLE was presided over by a law professor from Duke. She was forty-ish, nerdy and ever so earnest. Shorter wavy hair, the typical law professor jacket and skirt and frilly blouse, a dress, glasses. I presume that she made a presentation on some facet of legal ethics and then called for questions.

Obviously, it having been 30 years, I can’t recall the questions. They involved ethics rules anyway, which in the legal world can be a little arcane and involved. After all, lawyers made them up.

The questions were complicated enough, like this: “Say one of my firm’s partners represented Client A in his suit against Client B. Client B prevailed. Later, the partner spent a weekend in a hotel really railing on Client B. Then, Client B revealed, while our partner was administering oral sex to her, that she had won based on lying to the court. What are our ethical responsibilities as a firm, assuming that the knowledge of that partner is imputed to the firm, even if he learned it while his face was between Client B’s legs?

After every such question, the law professor would frown, furrow her brow, purse her lips, and think for a minute. Then she’d say, very earnestly, “I don’t know,” very firmly, each word enunciated clearly in that teacher-ish way.

This went on for fifteen minutes, and you could sense the growing frustration. One of the goals of attending a CLE course is to get yourself up to speed on the law in your specialty.** From the tone of the questions (a veneer of calm masking fear and panic), I suspected that they were not rhetorical but represented real issues that the firms were facing.

On and on she went, frowning, furrowing her brow, pursing her lips, and intoning, every time, “I don’t know.” Very firmly: you had to give her credit for not muttering or speaking softly. Over and over the sound system amplified her words: “I don’t know.” Then she’d turn and nod at the next hand in the air.

Her tone on the “I don’t know” never varied. She never betrayed any emotion; she was simply reporting the fact that she didn’t know. She made eye contact with her victims. She didn’t end her sentence with the sound of a question—“I don’t know?” She was very clear on the point.

She didn’t seem to have any idea that she wasn’t doing her job, I sensed; she thought she was doing the right thing, and indeed she was. She wasn’t making things up or lying (as law professors will do in class). She was giving the correct answer: she didn’t know. However, that’s not what these folks had paid for.

It’s a curious dynamic. The lawyers were there looking for answers to ethical dilemmas. One could argue that they got what they paid for; the seminar probably cost around $400 in those days, and they were essentially hoping for free advice. But that is part of the world of the CLE, an unspoken deal: you let me stand up here and take an hour to impress you with my brilliance and charm (not), and I’ll give you a little free advice.

But they weren’t getting any free advice. They weren’t getting anything of use.

My memory isn’t good enough to recall how this fiasco ended, but I’m pretty sure that the professor never got the hint, and the passive-aggressive southern lawyers didn’t bother to make clear their displeasure. (Imagine that happening north of the Mason-Dixon Line!)

What I won’t understand is whether she thought that her performance was acceptable. Really, she purported to be an expert on ethics questions, but she couldn’t any answer. Didn’t she feel a little odd? Or was she so absorbed in the complexity of the questions that she couldn’t fight her way out? I have dreams like that.

I wish at the time I’d been more engaged in this sort of issue so I could have called her and asked her what the hell. But if I asked her what the hell she thought she was doing, she probably would have answered, “I don’t know.” There’s something I will never get: how do people rationalize their failed performance in this context?

*The “once upon a time” comment reminds me: In my last year at Auburn, the English Department brought a notably drunken Bill “Sophie’s Choice” Styron to campus for lectures, readings, and panel discussions. I was on one of the last with a young poet, R.T. Smith, who unlike me has had a great career, and the aforementioned Madison Jones (see the “Liquid Paper” post). We were to talk about fiction, which might have confused R.T. the poet, though he did write some fiction, and he participated gamely. I ventured to say that the words that opened a story opened up a world: it was like “once upon a time”, and instantly the story took you somewhere that was wide open and could be about anything. Madison Jones, aged, white-bearded, tired, rubbed his hand over his forehead and said, “I don’t know, I think the first words of the story immediately limit it.” I shut the hell up for a while. OK, wait, the connection is that neither the law professor nor I knew what the hell we were talking about, and the audience immediately understood that. There you go! (Except later one of the senior faculty, inevitably with an unfathomable-by-humans grudge against Madison, whispered, “You and R.T. were the best ones on the panel.”)

**Unless you’re just trying to get in your required hours for the year. Then, if you’ve attended expecting to learn nothing helpful in your current position, but you’re still actually interested in the subject matter, you’re lost as the expert at the podium asks, “So does Hagerty have any vitality after the holding in Elderberry?” And you’re flipping back and forth in the written materials, which may or may not have anything to do with the presentation, wondering, which one is Hagerty? Being a lawyer is just stupid, and that’s not my final word on the subject.