Dear Malcolm

There is a mysterious gap in my resume. Two, actually. Or maybe they’re just two examples of the same repressed memories.

You’ve seen clues. For example, I graduated with a B.A. in English from BYU in 1986, and with a J.D. from Yale in 1990. But law school only takes three years.

You also may have heard me saying things like “when I was in grad school,” or “when I was at the University of Washington.” Or mentioning “I bailed on grad school. Twice.” Or even admitting “I never finished my thesis/dissertation. Twice.”

The first time was at BYU. Although I was a bardalotrous English major from day one, I also started taking graduate seminars in the Linguistics Department while still in my teens, even before I went on my mission to Korea. During my gap year after college graduation I finished my linguistics coursework, taught English 101, performed in theater, and started a weekly newspaper. 

As I recently confessed, that was the same year I had my first nervous breakdown over the whole gay-and-Mormon thing. I was a cliché – the “Best Little Mormon Boy in the World.”

But I was never pre-law. To the contrary, the only attorney I knew hated practicing law. (We carpooled to act at the theater together). Despite Richard's warnings, I took the LSAT as a walk-in on a last-minute whim. Law school was my desperate pretext to escape from Utah.

My second round of grad school was in the English Department at the University of Washington during the early 1990s. I had lived in Seattle for a couple of years. Although I enjoyed the intellectual challenges and the salary of a big firm litigation associate, I was deeply dissatisfied with where I saw my life and legal career going. Ostensibly recovered from my Mormon traumas, I was well on my way out of the closet and ready for adventure.

In an attempt at a little work-life balance, I signed up for an evening Shakespeare class though UW’s Adult Extended Education program. The class was so fun I formally applied for admission at UW as a post-baccalaureate student so I could get into one carefully-chosen English Department class each quarter. These courses were just gateway drugs, however. Heady from a seminar on the relationship between Victorian art and literature, I couldn’t resist admission into the English graduate program.

My Victorian seminar paper was about Max Beerhbohm, a writer and caricaturist who socialized with everyone in Who’s Who. As a souvenir I had an antique Beerbohm print framed to hang on the wall in my office. The print is captioned:

Scene: The Board of Trade. Time: Office Hours in the Early Eighties. Mr. Austin Dobson and Mr. Edmund Gosse, composing a Ballade, are taken unawares by their President, Mr. Joseph Chamberlain.¹

¹Dobson and Gosse were Victorian writers who found cushy day jobs as government bureaucrats. Gosse also was a deeply conflicted closet case.

In the 1990s we still wore suit and tie every day, so I would be in lawyer drag when I showed up for my English class a couple of afternoons each week. In my first official grad seminar, we went around the table introducing ourselves. A woman before me said “I'm Gwen. I used to be a corporate lawyer, but I decided to go back to grad school.” When my turn came, I said “I'm Roger. I’m still a corporate lawyer, but I decided to go back to grad school.”

No one at the firm ever noticed I was gone.  Res ipsa loquitur.²

²Lat. "The thing speaks for itself."

The best class I took at UW was a seminar on "Postmodernism." (It was 1993, what can I say?) The professor, Malcolm Griffith, was one of my most inspiring teachers ever.

Malcolm assigned an interesting reading list:  Calvino's If on a winter's night a traveler, Roland Barthes, Spiegelman's Maus, Auster's New York Trilogy, Acker's Don Quixote, Winterson's Sexing the Cherry, and Byatt's Possession. My favorite text was Robert Merton’s 1965 book On the Shoulder of Giants.  OTSOG is an extended riff on the origins and influences of an aphorism attributed to Sir Isaac Newton – “If I have seen farther, it is because I have stood on the shoulders of giants.” OTSOG is written with extraordinary erudition and in the comically discursive style of Tristram Shandy.³

³The eighteenth-century novel by Laurence Sterne, not the 2006 film version with Steve Coogan.

This fall I’ve been working on a long article called “Saving Appearances” about the unhealthy relationship between hypothesizing about the partially-unknown and lying about the partially-known. My research into mental health and brain function this year has made me doubt I could ever return to the kind of legal advocacy I used to do for a living. Anyway, progress on the draft essay stalled because I distinctly remembered my Merton essay included cool diagrams illustrating the ancient Greeks' goal of "saving appearances" in their cosmology. I’m too lazy to pass up an opportunity to plagiarize myself, but I’m too disorganized to find storage boxes on demand. (Like Merton and Tristram Shandy, our house is postmodernly discursive.) As a result, "Saving Appearances" has been on hold.

Then while rearranging some storage shelves today I came upon the file box containing all my writing projects from grad school and law school – my last fertile creative period before being silenced by a couple of decades of lawyerly anxiety and writer's block.

Other than than those pesky diagrams, I didn't remember anything else about my Merton essay. In postmodern OTSOGian fashion, I wrote my Merton paper as an epistle to Malcolm on legal letterhead, with copious footnotes. Reading it again for the first time in twenty-four years, I was startled to see myself noodling over some of the same themes I've been exploring recently. So I'm going back and taking a fresh look at my draft "Saving Appearances" essay. In the meantime, I've reproduced my December 1993 OTSOG paper here, entirely unchanged except as noted in contemporary parenthesis.

Dear Malcolm:

Contrary to some classmates’ perception, I have tried not to approach this seminar as a lawyer, and have mostly resisted the temptation of war stories and legal analogies. They break the illusion of being a real graduate student; they’re generally boring to normal people, and usually incomprehensible; and they remind that being a lawyer isn’t always that bad (thus clashing with the preferred my-job-sucks pose).

Nevertheless, in responding to OTSOG I have blundered into legal anecdotes and analyses. It started with our discussion in class of footnotes (or feetnote, as I always think of them collectively). Both “scholarship” (including Merton’s exemplar) and legal reasoning are riddled with citations to other authorities. In the case of literary scholarship, the citations are a paradoxical manifestation of the “cut of originality” that has dominated Western thought for centuries (as Merton so thoroughly and self-referentially [literally] documents). At first blush the rampant feetnote would suggest an obsession with unoriginality. But it is precisely the need to distinguish oneself from everyone else, to carve out a tiny independent intellectual fiefdom, that results in all the citations. Only by showing one’s awareness of (and distinction from) everyone else on earth can one hope to make an (admittedly modest) claim for some sort of originality. The result is a scene from The Far Side – a single penguin in the vast interchangeable mob, singing “I Gotta Be Me!” With all those conscientious surveys of the literature and obligatory nods to the usual suspects, there isn’t much room left these days for Big New Ideas.

Legal writing is just as cluttered with citations as scholarship, but for precisely the opposite reason. Jurisprudence is a cult not of originality but of authority; indeed, in the ideal legal discourse, absolutely nothing is original, with every phrase, word, or even morpheme footnoted to a prior source.

Our bench and bar of plagiarists are driven by the purported importance of precedent. A garden-variety trial court is bound by the decisions of its superior appellate tribunals. Those higher courts are themselves bound by their own previous decisions under the doctrine of stare decisis – Latin for mindlessly following precedent. Even courts in unconnected jurisdictions look over each other’s shoulders, borrowing approaches to similar problems. No one wants to be the first to do anything if they don’t have to be. That’s the point of the common law: it’s supposed to be a seamless web, answering all questions, changing at a glacial pace, and that only at the margin.

This is of course nonsense. Philosophically I am mostly a “legal realist,” believing that particular outcomes are driven by power and policy. But I play the game, too, because the explanation for the ultimate resolution of a contested issue is usually packaged as an appeal to authority.

Hence the abundant footnotes: for scholars, because authority contrasts with originality, and for lawyers, because authority masks originality. Nevertheless, perhaps both phenomena illuminate facets of the same fundamental human anxiety – the need to be different and yet not different, the recognition that one is both special and generic.

* * *

The second legal connection inspired by Merton relates to his professed narrative and analytic process: the serendipitous meandering among themes and centuries. It turns out the wandering otsogian methodology is very like what I do in legal research.

In framing his epistle, Merton asks where the OTSOG aphorism comes from and goes to, an interesting enough inquiry. As an attorney I’m usually asking boring questions, like “under this contract can a party do that?” and “who is liable for damages under these circumstances?” Sometimes the answer to my prosaic query is clear, based on the contract language or the relevant legal authority.⁴ Often, however, there is no obvious answer to the question presented, and I have to deal with ambiguous precedents, or a cacophony of conflicting voices. Because of the obsession with authority, it thus becomes imperative to locate that one case with both facts like yours and the outcome you want, that you can then hold up to the judge to convince here that everybody follows the rule of law you have proposed….

⁴Of course, nothing is so clear that a lawyer can’t find some ambiguity. Given world, money, and time enough, I can make black white and night day, at least in a certain light.

[I have omitted several tedious pages describing the process of finding a few persuasive legal citations I'd used in a recent case. All you need to know is I successfully convinced the judge that my client was entitled to an award of interest accruing during a particular phase of the litigation.]

* * * *

I described the process of legal research at excruciating length to suggest that despite our efforts to portray the law as driven by precise, inexorable rules, in reality cases are resolved based on packaging, serendipity, and sheer labor. (That’s one of the reasons lawyers cost so much.) Not that the process is entirely random: the turns and permutations, the narrowing of available paths, are all driven – both consciously and unconsciously – by the particular result desired.

My example also suggests how the process of going forwards and backwards along the line of authority – ruffing and sluffing, as it were – can lead further and further away from the starting point, and sometimes from the “truth.” In the last year, I have argued (and won) both sides of this same legal issue: the availability of interest accruing during this specific litigation phase. By relying on different analogies and separate lines of cases, I convinced one court to award interest to one client, and another court not to award interest to another client’s opponent, under identical circumstances.

My job is to prove black is white in just enough (but not too many) steps. I enjoy it – perhaps too much. As I discussed briefly in my New York Trilogy essay, I am a compulsive explainer. Lawyering thus often creates a moral hazard: I find/select the data to be explained, then construct the model that accounts for them.

In classical scientific theory-building, the goal was to “save appearances”: to propose an explanation that accounts for all the observed data. For example, suppose a scientist or lawyer is given the following five facts:

For an astronomer, these may be positions of a celestial body over time; for a lawyer, five witnesses’ descriptions of a single event. From the five givens, you can construct a model that accounts for each of them:

Competing models can be compared, and evaluated based on various criteria – such as their simplicity, or their ability both to explain all the known data and predict the unknown, in an organized fashion. Under such standards, perhaps

is more interesting, or robust, or amusing, or productive, than

Or perhaps not. In any event, both models save the same appearances, and provide a framework for further analysis. That’s the point of excursions like Merton’s: to construct and present (however haphazardly) an explanation of experience.

However, part of my current frustration with the law, and with compulsive explanations, is they involve models that save only “appearances.” That’s not enough. But what else is a poor little model to do?

Lots. Let’s use the same old array of x’s. Say that, as before, the x’s are the givens, the data that must be accounted for. However, what if there is an “o” – a datum that may not “appear,” but that you believe or know or suspect or hope is there?

When the goal is to save something more than appearances, the tidy model of the box doesn’t work any more:

Somehow it matters that the “o” is there in the middle of all those x’s. At least it matters to me. And I am increasingly uneasy with constructing or promulgating models that merely save appearances – or, in an effort to distract and deceive, that result in disappearances. My penchant for spin control has itself spun out of control.

The other day at dinner an old friend asked if I believe in “absolute truth,” and was amazed when I said that I did. I told her my favorite sentence in history was when Galileo recanted before the Inquisition – swearing aloud that the sun revolves around a motionless earth, but then muttering under his breath “e pur si muove” – “it still moves.” There is a universe; it may be inaccessible, changing, overdetermined, and altered by my own actions and thoughts; but regardless of what trendy pomo grad student types say, the universe is still there.

Paradoxically, I’m not just an absolutist but also a pragmatist, in the old-fashioned William James sense. One aspect of pragmatism is that everything is negotiable. Fortunately, as both a practical and philosophical matter, everything is not on the table all at once. Everything is just a potential subject of revision.

Most importantly, everything is on the table not because I like to build models for their own sake, but because I believe they truly are models rather than simulacra:  they attempt to model something out there.

* * * * *

This long letter has become a response not only to Merton, but also to other postmodern themes this quarter, as well as to your reactions to my previous papers in this seminar. Each brought an accusation of some species of glibness (a charge also leveled at Merton by my classmates): In re Calvino for reverting to telling rather than showing; in re Acker for settling for mere parody; and In re Auster for tossing out thoughts without rigorously developing them.

As I suggested in my Calvino essay, I’ve always been sensitive to charges of glibness, dilettantism, and coasting. Each of these faults is an occupational hazard of misguided attempts to juggle one bowling ball too many. Or as someone once said:

I once worked in a particularly hectic office. It was filled with fiendish devices of torture, including a Xerox machine that would maliciously burp ink on your white shirt. Above this monster hung a sign that said simply “Grace Under Pressure.” 

Our straight-laced boss never knew that the phrase actually referred not to Hemingway’s definition of courage, but rather to a record album by a loud Canadian rock group. But whatever its immediate source, the goal of grace under pressure has been an inspiration in my life, especially during my time here at BYU. 

First, “Grace” is the imperfect English translation of the Italian word sprezzatura: the ideal of the Renaissance Man. According to that ideal, you not only have to do everything, and do it well, but you also have to make it all look easy. This sentiment reappears in the modern anti-perspirant advertisement: “Don’t ever let them see you sweat.” 

I am no Renaissance Man, and when I sweat it shows. But with a reach far exceeding my grasp, I have tried while at BYU to become something of a student, a scholar, a writer, an actor, an artist, a musician, and a teacher, as well as a dutiful son and fun roommate. This is clearly impossible and certainly exhausting…

That’s how I began my valedictory address at BYU in 1986, two states and three careers ago; it could be here and now. Plus ça change….

One constant risk of sprezzaturan efforts is that you just snap one day. So far I’ve avoided that day. Mostly. [Ed. note: Ironic foreshadowing.]  A more likely result is to become overextended, to cut the wrong corners, to get caught coasting. Yet another is to succeed too well – performing such staggering feats of juggling that they appear implausible, leaving observers with an unfounded suspicion of shallowness and sloth.

This quarter I have fallen victim to most of these hazards. With the lengthy Calvino essay it was apparently clear I had sweated too much (no doubt at my employers’ expense). With my Acker response, however, I worked almost as long and hard, but it didn’t show. After being accused of telling rather than showing I overreacted. With Auster, the reproach was well-founded, since I indeed ran out of time and inspiration, and threw something facile together. In my defense, however, rather than merely blame my day job and on-going identity crisis, I would also point out that I was only beginning to grapple with some of the ideas that subsequently have played out in my responses to Merton and to Byatt: the connections between models and reality, intention and chance, multiple narratives and perspectives, and how things remain constant and yet change.

Back to Galileo’s aphorism, e pur si muove. As his story suggests, Galileo’s professed recanting did not change the nature of the universe, nor his true opinion of it. But the literal meaning of the phrase is ironically illuminating:  it still moves. The model changes, but so does the universe, which includes the model itself.

Life is a perilous balancing act of making plans and making do. The otsogian enterprise of lawyers and scholars is itself a process of working through uncertainty through a combination of luck and effort.⁵ Merton, that de facto postmodernist, is looking at profound questions of authority and originality, essence and construction, choice and submission. Likewise, my “Grace Under Pressure” speech excerpted above came at the beginning of an examination of these issues that led from Provo to New Haven, and now to Seattle. This seminar in turn has become part of my current crisis of disintegration and (hopefully) reintegration. Along the way, perhaps I’ve stumbled onto a new genre: nervous breakdown as performance art.⁶

Drama Therapy

I am not a singer. I never sang in my high school or college choirs. I was too busy with debate, and band, and editing underground newspapers. But mostly I was a theater person.

After my family moved from Vancouver to Utah, I found my first life-saving island of misfit toys at Palace Playhouse. An over-enthusiastic drama teacher at Box Elder High School had somehow convinced the school administration and the owners of a historic bank building in downtown Brigham City to give us the use of the cabaret space on the bank’s top floor. For decades, Palace Playhouse was a student-managed theater company that produced musicals and plays year round (until the principal and the fire marshal finally pulled the plug ten years ago). Palace Playhouse redeemed high school for generations of awkward BEHS grads.

During the school year we spent first period at the theater working on the current production. We then convoyed across town to the high school and pretended to be normal-ish students for the rest of the day. It was like having a Bat Cave and a secret identity.

On a practical level, Palace Playhouse offered an incomparable introduction to the whole fascinating business of theater, from building sets to marketing tickets, as well as the opportunity to perform in a wide variety of classic works. We even premiered original student plays, like the talented Mike Richan’s Le Murder Hideous.

More importantly, even though we were all trapped in an oppressive Mormon farm town in the 1970s and 80s, Palace Playhouse gave us a safe space to explore quirky identities and intense friendships. This was long before anyone knew It Gets Better. Eventually. Not all the guys at Palace turned out to be gay years later, but everyone turned out to be creative, sympathetic, and interesting.   

My first big role at Palace Playhouse was Nicely-Nicely Johnson in Guys and Dolls, during the summer before my junior year. I wish I could find a picture of me wearing the garish rainbow-striped gangster suit my mother sewed.

The next summer we did The Music Man. This time I music directed together with a classmate, and sang in the barbershop quartet. I also recruited my eight-year-old little brother Warren to play Winthrop, the shy boy with a lisp portrayed in the movie by a very young Ron Howard. According to family legend, the experience set back my brother’s speech therapy progress by several years.

My parents moved from Brigham City to Bellingham a few months after I graduated from high school. However, the only time I ever lived in Bellingham myself – before starting my doomed job with the Attorney General’s Office as general counsel of Western Washington University – was during the summer between my freshman and sophomore years at BYU. Unable to find a temporary McJob in town, I spent my summer vacation doing community theater instead.

Charlie Brown is the ultimate icon for any codependent person. The world keeps offering us irresistible footballs to kick, then pulls them away. Obviously I couldn't turn down the title role in “You’re a Good Man, Charlie Brown.” I can still recite the play’s opening monologue thirty-five years later. In hindsight, channeling Charlie Brown for a summer was probably more debilitating than mimicking Winthrop’s lisp.

Note that I also did the design and calligraphy for the play’s program. This was a regular thing during my youth. My vast collection of self-made certificates probably rivals Donald Trump’s – but I both earned and lettered all of mine, instead of just paying for them.

After my Mormon mission to Korea, I returned to Brigham Young University to complete my bachelor’s degree in English, finish the coursework for a master’s degree in linguistics, teach freshman English, and start an independent student newspaper with another talented group of misfit toys.

I also had my first nervous breakdown over the whole gay-and-Mormon thing. Like Carrie Fisher and Harrison Ford in Star Wars: The Force Awakens, I then waited until 2015 to reprise my greatest role.

While at BYU, I somehow found time to perform in numerous plays at the marvelous Hale Center Theatre in Salt Lake City. As I recently wrote in Driving Brother Dallin, “I loved the Hales and their theater. Thirty years later, I think of them every time I take the stage with Vancouver Men’s Chorus, because Ruth, Nathan, and their innumerable offspring taught me so much about both performing and life.”

During law school, I performed in the chorus of the Yale Gilbert & Sullivan Society production each semester. In addition to being a fun outlet, G&S gave me the opportunity to mingle with interesting and diverse Yalies whose personalities had not been warped by law school. For example, our Divinity student choreographer now serves as the thirteenth Episcopal Bishop of Rhode Island since the diocese was founded after the American Revolution. 

After graduating from Yale, I moved to Seattle to start my legal career. I knew I wouldn’t have the time and flexibility for theater. So I joined an excellent local choir, as a purely temporary artistic and social outlet.

I ended up singing in the Saint Mark’s Cathedral Choir for six years, Windy City Gay Chorus for five years, and Seattle Men’s Chorus for fifteen years. I’ve been singing with Vancouver Men’s Chorus for almost two years now – coinciding with the period when I’ve been dealing with Post-Traumatic Stress Disorder, impoverished unemployment, and the destruction of my career and house.

Even though I often sang solos in character when I was in theater, I’m painfully shy, and terribly self-conscious about my singing voice. I've never even auditioned for a solo. I think of myself as an ensemble person, happiest when blending into gorgeous chords. I’m definitely not a Drama Queen like my daughter or certain of my Chorus brothers. (You know who you are. We all do, and we love you for trying out for all the solos so we don’t have to.) Instead, I pretend to be tall enough to hide in one of the back rows. VMC conductor Willi Zwozdesky is the first person with the nerve to put me up front.  

We are currently in the final weeks of rehearsals for VMC’s annual holiday concerts. I won’t bother giving you the hyperlink because tickets for all six shows are already gone. But you can still sign up on the waiting list for cancelations, or volunteer to usher – we’re forbidden from ever using the words “sold out.” Oops.

Last weekend, the chorus traveled to Vancouver Island to perform outreach shows in Victoria and Nanaimo. It’s like taking a new musical to New Haven before opening on Broadway. You get to work out the kinks, and you reach an appreciative new audience in the hinterlands. It’s also a fun opportunity to socialize with singers from other sections, away from the hurried scrum at rehearsal. I loved riding on buses and ferries and staying in a hotel with the gang for the first time. Even though social anxiety had me hiding under the covers in my room on Saturday night while everyone else was at the cast party.

One of our numbers this year is a raucous polyphonic Christmas Can-Can. I signed up for the 16-man ensemble singing the melody. At our first group rehearsal, we realized we needed to assign a handful of short solo lines. “Not gonna do the kick line” went to the Asian bass. (Not to perpetuate stereotypes, but that sentence would not make sense if it referred to “the Asian tenor.” We have gaggles of those.)

Next we needed someone to tell the audience “It’s not fair if you’re Jewish!” Without thinking, I pointed out I can easily play Jewish, and got the part.

Later I remembered PTSD is still a whole new adventure for me, and I realized there was a significant chance that I would freeze when the time came to sing my four nebbishy lines. Still, as you can tell from all the blog posts this year, I’ve been making progress with my disability. And I need to push myself.

Fortunately, the performance went smoothly. Unfortunately, four hundred nice blue-haired ladies and twelve cute gay guys in Victoria have now joined the vast throng of people who labor/labour under the misapprehension that I’m Jewish. It’s impossible to escape type casting.