May 2022 Bar Bulletin
I was rather surprised to learn that “doomscrolling” has not yet been recognized by Merriam-Webster as one of its Words of the Year, although it is inevitable that it will be fairly soon.1 If you are anything like me, your news feed for the last few years has been primarily dominated by horrible news — whether it be the war crimes in Ukraine, the complete lack of will on the part of the political classes to address climate change, the societal tool of systemic misogyny and racism, or the horrors of a pandemic that continues to take a disproportionate toll on marginalized communities. Many scholarly articles have been written about the physiological toll that doomscrolling has taken on communities throughout the world and how those effects have been exacerbated by social isolation during COVID-19.2 Given the stresses inherent to the practice of law, the unrelenting parade of horribles with which we are bombarded by social media and our newsfeeds, and our natural predilection for homophily, it is not surprising that the siren song of the third derivative has grown much stronger in the last few years.3 I join a growing chorus of voices encouraging you to try to resist that siren song as much as possible.
I am not a Pollyanna, and I certainly am not seeking to minimize the horrors that I referenced in the previous paragraph. You should be angry, horrified, and up in arms about many or all of the injustices that surround us. One cannot read about the war crimes in Bucha, watch the clown show that was the Senatorial confirmation hearing for Judge Ketanji Brown Jackson, or review the IPCC Sixth Assessment Report on climate change without deep concern and anguish. Closer to home, reading about Coca-Cola’s decision to withdraw its diversity standards for outside lawyers and the fate of its former general counsel Bradley Gayton is not simply appalling but yet another reminder of how much progress remains to be made and why righteous anger is a necessary catalyst for change.4 Nevertheless, I encourage you to temper that anger and rage with open mindedness and empathy for your fellow lawyers, other members of the King County Bar Association, and our volunteers. When you approach everyone from a place of mistrust and otherness not only do you make civil discourse and progress difficult you also make yourself (and the target of your rage and anger) miserable.
Early in my career I was the only associate working with a single partner on a patent law matter. This partner was an ardent fan of the “flaming pile of dog excrement” approach to communication, where every letter and email to opposing counsel was so inflammatory that chances were that opposing counsel would elect to ignore it (thus setting the groundwork for a sanction motion or motion to exclude a few months down the road). The added bonus for me was that he did an excellent job of convincing me that it would be good for my career and establish my credentials if I sent most of those letters to opposing counsel. I was not just heeding the siren song of the third derivative. I was absolutely reveling in it.5 Thankfully, Paul Swanson, our opposing counsel called me unexpectedly one day and gave me one of the best pieces of professional advice I have ever received. He told me that not only was the Seattle legal community small, but also the patent litigation community in Seattle was even smaller (it really is!) and that the case I was working on would go away, but my reputation would stick around for much longer.6 It is important to be reminded once in a while that no matter how much we may disagree and how good it feels at the moment it is better to be civil and professional than to dance to the tune of the third derivative.
When you find yourself (especially as an established member of the power structure) telling someone not to “rock the boat,” chances are you are heeding the siren song of the third derivative. The person rocking the boat is likely rocking it because, unlike you, they are not safely ensconced in the middle of the boat and perhaps must either capsize the boat or rock it enough to achieve a more secure and stable position on the boat. Instead of advising them not to “rock the boat,” ask yourself what you can do to help them onto the boat (or help them capsize the boat if that is truly the just outcome).
When you find yourself comfortably opining that a person you are meeting for the very first time will treat men more favorably than he will women based solely on the fact that he is a South Asian male ask yourself whether the siren song is calling to you. When you put in writing that a person’s attempt to help bring another person up to speed is “rooted in misogyny” again based solely on the first person being a South Asian male ask yourself how much of your opinion is undergirded by evidence and how much of it is a reflection of your bias. Accusing someone of being a racist and using “coded language . . . to discuss a group of people that are predominantly Black and other people of color” because that person suggested that security around the Seattle Courthouse should be increased following an alleged sexual assault within the Courthouse no doubt feels cathartic and supportive of marginalized communities, but once again consider whether you are simply giving into the lure of the third derivative.
When you misspell a person’s name (while responding to an email with the person’s name in the signature block) because you cannot be bothered to look at the signature block you are committing an act of microaggression and indulging in your privilege. If you respond to the person pointing out that you misspelled the person’s name with an “oops, sorry about that” and a smiley face, you have moved well past microaggressions and succumbed to the limbic pleasure of the third derivative.
I received a handful of emails in response to my February President’s Column discussing Dobbs v. Jackson Women’s Health Organization. One that stood out for me was from one of our members who strongly disagreed with my views on women’s reproductive rights. Yet, he did so without name calling, ad hominem attacks, or demonizing my opinions and views. In other words, where it would have been easy to give into the siren song of the third derivative, he decided to disagree without being disagreeable.
One of my erstwhile colleagues — also a patent attorney — fit the stereotype of a patent attorney in numerous ways including the music she enjoyed and the fact that she was a powerlifter. One of the more enjoyable ways to spend a few minutes during a slower afternoon was to listen to the music that Pandora would recommend for her (there is something truly awe inspiring about hearing Hungarian Rhapsody No. 2 immediately followed by Forged by Neron). In a world where injustice seems to surround us, pattern recognition algorithms do everything in their power to encourage our affinity for homophily, and the echo chambers of social media and newsfeeds tend to exacerbate our sense of powerlessness and despair, I encourage you all to be more like Mary and live a life that not only confuses search algorithms but also rejects the siren song of the third derivate. Be angry, be upset, fight for justice, and do not be afraid to be the change you would like to see in the world. Consider however whether you can do all of that without devolving into being the third derivative.
Kaustuv M. Das is the President of the King County Bar Association and an attorney with Intellectual Ventures. You can reach him at KCBABoardPresident@kcba.org or at 425.247.2431.
1 https://www.merriam-webster.com/words-at-play/doomsurfing-doomscrolling-words-were-watching (last visited April 12, 2022).
2 See, e.g., Bhakti Sharma et al., “The Dark at the End of the Tunnel: Doomscrolling on Social Media Newsfeeds” (2022) available at https://tmb.apaopen.org/pub/nn9uaqsz/release/3?reading
Collection=b3f70ac4 (last visited April 12, 2022).
3 A quick reminder that much of differential calculus was developed to study motion and the first derivative of a position function is velocity and the second derivative of a position function is acceleration.
4 https://news.bloomberglaw.com/business-and-practice/cokes-rigid-legal-diversity-drive-pushed-corporate-limits (last visited April 12, 2022).
5 I could argue that I did not know any better. The truth is that it is easy to get caught up in such “tactics” when you are in the thick of litigation and everything you do seems to be attacked, misconstrued, or abused by opposing counsel. I was fortunate to have a terrific mentor a little later in my career, Randy Gainer, who reminded me: “that little voice in the back of your head, that’s your conscience. Never ignore it.”
6 Paul – if you are reading this and if I failed to thank you for that advice when you first gave it to me, thank you.