It was observed authoritatively in the course of this column’s September-October 2021 entry that “charity” is something that “begins at home.”
As far as I know, I’ve yet to be hailed as “the next Wordsworth” for busting out with this novel insight, although, to be fair, I haven’t kept up with my email as well as I did during the Great Lockdown. On more than one occasion in 2020, I was actually able to circulate a screenshot amongst my ever-dwindling cadre of acquaintances that documented, yes, an empty email inbox—every (over)working professional’s impossible dream.
Of course, my boasting amounted to even more messages in each of their inboxes—a smug maneuver unlikely to win friends, although notably less self-injurious than some of the Internet hijinks that tend to bring down public figures left and right these days.
Tolerating the personal foibles and heedless antics of others isn’t technically an act of “charity,” but it is “charitable.” The latter notion is frequently the goal of savvy, big picture-oriented litigators, who realize that playing Rome to the other side’s Carthage is not a one-size-fits-all strategy suited to each and every case. Being charitable builds counsel’s reputation as a reasonable person, an adversary with a heart, a noble character hovering magnanimously above the fray. Besides, what goes around comes around, and it doesn’t hurt to allow the occasional badly mauled opponent to stagger away from the battlefield, carrying the message of just how ugly things became for those who didn’t make it.
Even more useful can be the opportunity to motivate others to act charitably. This starts in many cases with one’s own expert witness. Woe betide the attorney who, when asked by the expert to share counsel’s theory of the case, demurs that “Doc, I wouldn’t want to bias you.” Since when? Why lie down and fail to advocate at just that point in the proceedings when the first of a string of entitled decision-makers can decisively be influenced?
Counsel needs to bring it. Experts who have been around the block know lawyers have a case to make and can take counsel’s wish list in stride. When it comes to our own turn in the examining room and the doctor asks us where it hurts, we’re unlikely to respond that “I’d feel more comfortable if this was something you figured out on your own.” The same can be said with regard to auto mechanics, tax auditors, and landscapers—three other entities to whom one should never say “surprise me.” We need to tug away at the expert’s heartstrings like our client’s life depends on it. Sometimes, it actually does. Inspire a charitable disposition in this particular form of judgment as early and effectively as possible.
Real judges—and juries—are the eventual recipients of similar pleadings, so to speak. Meeting this challenge is not a cynical exercise in “nullification.” Rather, it is a notion deeply embedded in criminal and civil law alike. The most consequential of criminal proceedings enshrine this in what are often explicitly codified options for “mitigation.” Okay, someone did something horrible, but the system must take note of extenuating circumstances that enable it to be charitable when such circumstances do not amount to a defense per se. On the civil side, examples abound of the system’s willingness to be charitable when families can still be preserved, when multiple parties may have been at fault, or when professional practice was at least reasonable, if not stellar.