Yesterday traffic caused me to arrive a bit later than usual at my monthly gig as the instructor in the legal ethics portion of the D.C. Bar’s mandatory orientation session for new admittees. It was after 9 AM (my segment starts at 9:20), and as I approached the glass doors to the lecture hall lobby, I saw a distraught women angrily berating one of the D.C. Bar staff. I knew instantly what was going on.
You see, the courts approving the program insist that every attendee be there at the start: the doors close at 9, and anyone arriving late, no matter what the reason, is out of luck. They can’t attend the session, can’t get credit for it, and have to return the following month. That rule is on the website and in all communications with the Bar, along with the warning that there are no exceptions, and no effective excuses. Every month, someone misses the deadline; every month, that person goes ballistic. This women, however, was remarkable.
She had flown to D.C. on the redeye, she said. Her cab was stuck in traffic, and when she arrived in the cavernous Reagan Building where the day-long course takes place, she had ten minutes to spare. Unfortunately, the Reagan Building eats people. I have wandered its halls lost many times. I keep expecting to encounter a bearded, Ben Gunn-like figure who grabs my pant leg and jabbers about how he’s been trapped by the bewildering signage, and has been living off of Cub Scouts since 1992. The woman made it to the right hall in just 12 minutes, which is impressive without a GPS. But she was still two minutes late.
She could not understand why the staff would not make an exception in her case. ONLY two minutes late. ALL the way from L.A. MAJOR hardship having to come back. TRAFFIC. LOST in the government office building from HELL. She was red-faced and on the verge of tears. I intervened, and told her I sympathized, but it would be unfair to allow her to do what every other late attendee, including others who had flown in for the course, had been forbidden to do. (The staff also didn’t have the authority to overrule the policy.)
“Why not?” she said. “This doesn’t have to be precedent!”
“But it will be,” I said. “If two minutes and a flight from L.A. gets a pass, why not four minutes and a flight from Omaha? Or ten minutes and a drive from Wilmington? There has to be a line. You were told about it. We can’t make an exception for you.”
Now, the fact is that while we were talking, nothing substantive was occurring behind that closed door. My presentation was the first significant part of the course. Why couldn’t we just let the poor woman in, and make an exception just this once?
The answer is that reasonable lines have to be drawn, and once there is fair and sufficient notice, the fact that they are crossed by a lot or a little can’t matter, if there is going to be a line at all.
This drives people crazy, and it’s understandable. What difference is there really between the student who flunks a course by one point on a hand-graded essay test and the student who passes by the skin of his teeth? Not much; quite probably nothing…except the single point. But this is a reality of life. If you miss an airplane by 30 seconds, you’ve still missed it.
Lawyers should be especially attuned to this: be late for trial, and you can be facing discipline, or at least an angry judge. Today “Above the Law” has a story about a lawyer who lost the opportunity to file a 2.5 million dollar lawsuit because he botched the payment of a two buck filing fee. It’s seductively easy to say “this isn’t fair,” but fairness to a group may require what appears to be arbitrary harshness to the individual. If there is going to be a fee, it has to be paid. If most lawyers pay it, then it is unfair to them to allow other lawyers to cross the line without consequences. If a line isn’t consistently enforced and respected, the system lacks integrity.
This is one of the persistent chasms between conservative thought and liberal reasoning. The conservative will insist that the rule be followed and the line respected even when it is clear that the result will be excessively harsh or unreasonable. The liberal will argue for ignoring, moving or altering the line to avoid apparent injustice, even though the results may be, and often are, chaotic. This is the two divergent meanings of “fairness” going to war. Both approaches are ethical, and they are mutually exclusive.
The 2000 election, which was recently discussed here, was an excellent example. Republicans, with some logic and also self-interest, wanted to stick to the law as it was: over-votes and under-votes didn’t count as votes. The instructions were clear: shake out any hanging chads and check your ballot, or risk not having it count. Democrats, however, successfully got partisan judges to change the rules mid-vote count, because of “fairness.” If we could discern the intent of the voter, shouldn’t the vote count? Thus the nation was flung into Chad Hell.
I vividly remember a TV segment at the time in which a passionate Gore surrogate argued for a vote-by-vote standard as just and fair. “There was a ballot where someone confused by the voting machines just scrawled on the card, ‘I want to vote for Gore!’ Now how could anyone argue that this should be a valid vote?” the talking head asked. That’s funny: it’s exactly what I would argue. That isn’t a vote. The law said a vote was registered by punching out a hole next to a name, not by writing on the card, not by shouting out the chosen candidate in the town square, not by dropping a marble in a box. If you allow one voter to vote however she likes, then it is unfair to prevent anyone else from inventing a similarly “clear” voting method.
Sorry. Follow directions. Make the deadline. Plan ahead. Be accountable, and don’t expect the system to turn itself inside out because you miscalculated.
In the end, the frustrated woman at the D.C. Bar course actually placed a curse on the staff, saying that she wanted all the children of the staffers to be treated as badly as she had been some day. As curses go, this was pretty pathetic: “May all your seed experience bureaucratic obstacles in fulfilling continuing legal education requirements!” is hardly Stephen King. Still, I understand where it came from: when you barely cross a line and still inherit the full brunt of a penalty, it can seem like you have been mistreated. Ethics, however, demands that when that line is clear, reasonable, necessary and well-communicated, the real unfairness would be in placing individual hardship above the system’s integrity.