• Brendan

Wine, Woody and Wu Wei: a Patient Reflection on Time and Doing a Lot While Doing “Nothing”

In my favorite rendition of “September Song,” the Kurt Weill gem of a tune, Francis Albert Sinatra croons “oh, it’s a long, long time from May to December, but the days grow short when you reach September.” Ol’ Blue Eyes is describing the infamous May-December romance via the passing seasons, but he could be describing much else besides.

The song goes on to lament how, when Fall arrives to turn the leaves red and the days dwindle down, one “hasn’t got time for the waiting game.” In Chicago, we had a pretty hot Summer — not just meteorologically speaking. But on the morning this was written, it was 52 degrees and my living room windows were open. There was that very specific chill in the air that signals to the skin and the nostrils that the arrival of autumn is not so far away.

When that weather signal first hits, and I can always detect the evenings arriving sooner, I often feel a palpable mental shift begin. Perhaps the accumulated inheritance of eons and eras conditions us all this way. My fevered and productive mind of Spring and Summer begins to cool into a slightly slower, more reflective attitude of consolidation and deliberate consideration. It is as if I am the woodland mammal preparing my den and my food stores for the coming Winter. It is, at times like this, that I think about time in a way I did not in the months preceding. And it is time that I want to explore here. More precisely, what to do with time and what to let time do with you. And me. And our problems. And our clients’ problems.

Some time ago, discussing the timing of filing a particular motion in a case, I told a client that what we faced was a Paul Masson Situation (“PMS”) I refer to PMS often in my work. In his own autumnal years, the late-70s and early 80s, the great director/actor Orson Welles appeared in a number of advertisements for Paul Masson wines. He would deeply intone (in that voice only he could carry off) that Paul Masson “will sell no wine before its time.” I use this relic of marketing to make a point with clients. Namely, that the filing of a motion or the doing of a thing should be sensitive, like wine, to timing.

One need not be a oenophile to know that wine and time are linked. As an only child, I used to spend a more than healthy time alone watching movies. I particularly loved James Bond. My first education in wine came from 007. In the 1971 film “Diamonds are Forever” — near the end of the movie, one of the bad guy characters, Mr. Kint, poses as a wine steward and offers Bond a Château Mouton Rothschild ’55. Our favorite British secret agent is onto him and teases out his villainy. He states that with a meal like that which he was served, he “rather expected a claret.” Kint attempts to cover by saying there were none left. 007 then retorts: “Mouton Rothschild is a claret. And I’ve smelled that aftershave before and both times I’ve smelled a rat!” Wild and preposterous violence ensues and a there’s a bomb in a cake and 007 saves the day and gets his girl.

The point here, of course, is that to appreciate wine is to appreciate time and terroir and the often intricate and granular details of fruit and vine that make a simple grape into that nectar that has lubricated and sustained mankind for centuries. As we will see below, patience truly is a virtue and does have its own rewards — both in wine and in much else.

In another setting in the not so distant past, a Zoom court conference, I trotted out another time-sensitive line that I often use (or overuse if you happen to be a frequent opposing counsel of mine). In the great late-80s Woody Allen film “Crimes and Misdemeanors” the character of a television producer/brother-in-law named Lester, played with oleaginous ease by Alan Alda, states that comedy is summarized as follows: “if it bends its funny; if it breaks, it’s not funny.” While not explicitly a statement about time, seen in a certain way, it fits the very old and widely accepted formula that comedy equals tragedy plus time. In other words, the arc of time from tragic event X is such that when Mel Brooks made us laugh about Hitler and the Nazis, it was in part because sufficient time had passed from the horror of that genocidal fascism such that we could respond to that vile period and those deranged acts with a chuckle and not just a tear. That comedic arc bends at a certain point in a way that it would break if attempted earlier.

Alternately viewed, we often can laugh at a man slipping on ice and dropping a bunch of Christmas gifts he is carrying, only to look up dazed and confused. However, we don’t laugh at a man slipping on ice and cracking his head open while blood gushes out. This is also the bend/break distinction. Ultimately, however, as Allen’s “Lester” delivers it, the line IS about a time-based notion. Before the famous bend/break phrase, Lester says: “[w]hat makes New York such a funny place is that there’s so much tension and pain and misery and craziness here. And that’s the first part of comedy. But, you got to get some distance from it…” Distance. Removal. Space. Time. After dropping in the bend/break line, Lester sums up: “[s]o, you got to get back from the pain. See what I mean?” Get back from the pain.

In other words, just as time and good wine are paired, time/distance/removal and pain are linked. Do you see where I am headed?

Lastly, and before I get to the meat of today’s sermon, I had occasion to see a long-time colleague before Winter arrived. With Coronavirus keeping us lawyers away from the courthouse and mostly home bound for the last months, it was good to see this colleague in person. As we chatted, this person mentioned another line, that actually was the impetus for this piece. In the now-forgotten 1983 film “The High Road to China,” which I have not seen, or if I did I cannot recall, a wise Chinese elder states: “the ox is slow, but the earth is patient.” My colleague mentioned this apropos of much that is going on in the world. It struck a chord and has stayed with me and got me to thinking. The plodding ox does his thing. This planet patiently endures.

While it takes time to get good wine and time can give us perspective on pain and comedy, time also is a thing that we can observe and sense is passing, and therefore requires an ability to be patient in order to endure it with equanimity. Being able to reside peacefully in each moment can often be hard. I know it often it is for me. It is why I have meditated for over 25 years. It is why I take social media and technology “detoxes.” It is easy to become overly attached to the current moment. This year we have seen and lived through a pandemic, riots, economic upheaval, looting, protests, a hotly contested election, outrage mobs, and the cancelations of people — and yes — even the cancelation of periods of time. Regardless of what one thinks about any of those things, that is quite the dance card for our 2020 prom. Personally, it has felt overwhelming at times. I have alternated between extreme periods of energy and hyper-vigilance and times of fatigue and malaise. Daily, we are bombarded with confusing and concerning news. It can all feel like an extreme and unique crisis that requires immediate and extreme action. And some of it is and does. But much of it is not and does not. It is here where patience can be our friend. It is here where the gift of time can be the thing we give to ourselves, our systems, and others.

In Taoism, there is the notion of “wu wei.” It is action through inaction. It is effortless action. It is doing something by not doing a thing. It is embodying Lester’s vision of comedy — bending without breaking. It is ripening on the vine, like a grape as it matures before becoming wine that will then age in casks. And it is here where I finally get to the practical point.

Many lawyers go around filing things at the drop of a hat, being “proactive,” and generally making a mess of things. We act and intervene and do things because we think we should and our clients think we must. But when we do this, our actions have implications and consequences. Many times, our litigation activity yields side effects as in medicine. In medicine, the iatrogenic effect is where the drug or treatment for condition X itself yields conditions Y and Z, etc. We lawyers can cause this too. We file that “emergency” motion thinking it will address a situation and that motion sets in motion a cascading series of responses, maneuvers, counter-responses and counter-maneuvers and we wake up 12 months later with a case mired in conflict and confusion and we ask ourselves, “how did we get here?” The effects of iatrogenics and intervention are explored very well by Nassim Nicholas Taleb in his 2012 book “Antifragile” and should be reviewed by all for whom this concept resonates.

Many times, doing nothing is the best medicine in medicine and for our clients, in law. In that conversation with the colleague with whom I met, we talked about emails and texts and the 24/7 demands of our practice. We explored how, before the pervasiveness of our technology, clients could not reach us. At night and over the weekend, they were left to their own devices (pun intended). Magically, many issues were resolved. Things were sorted out. No formal intervention was required. The passage of time allowed for things to settle down.

My ex-wife is also a divorce lawyer and she sometimes serves the Court as a Guardian ad Litem in cases, on behalf of the children of divorcing parents. Often, I hear how we litigators and our clients expect and demand immediate responses, immediate action, and immediate intervention. I know this is true because I observe it as a litigator. It is interesting, however, to hear her description of it from the vantage point of someone amidst the litigation, but not actively engaged in it. What is most interesting is how she describes her trying to let things “be.” She consciously does not opine or intervene on every issue. She lets it play out, where appropriate. While she might not consciously describe what she is doing by not doing as “wu wei” — it fits nonetheless.

The bias in favor of “proactivity” might make certain lawyers popular with their clients on a short term basis. But that bias blinds the lawyer and the client to the immediate and second order effects of doing the thing that is done. The better practice, by my lights, is to always ask what doing nothing might yield. What will occur if I do not send this e-mail, file this motion, or force this hand? How, if at all, will my client be served in acting versus not-acting. If I act, knowing what I do of this Judge and my opponent, what might be their response? If I do not act, knowing those same things, what might be my opponents next move? Is the client served by letting the other side make the move? In my experience, well timed motions and actions are winners more than losers. Sometimes it means you take what feels to the client like small, near term hits, but the end result is often better than it would have been if you had moved peremptorily.

As we have seen, about many things in life, our elders were and are wise. We have all heard that patience is a virtue and that time heals all wounds. True enough, but time is not magic, and sometimes action (even swift action) is required. The trick, in wine, comedy, law and life is knowing when to step in, when enough time has passed, or when it is time to let time do its thing. Timing really is everything.

1 view0 comments