December Graduation 2021 with Chase Wilsey

Skepticism

Preamble

I was elected by the Stetson Law students graduating in December 2021 to give the Celebration address. Several people have asked to read it, so here it is! 

Introduction

Good evening, everyone, and thank you, Dean, for that introduction! Congratulations, graduates! 

Being asked to give this address is certainly rather different from the latest unexpected request I’ve received. Someone, calling themselves Sam Johnson, completed the contact form on my blog with the following proposal (and I quote): 

We are BGM Resources Inc., a company that deals in gold, and are looking for an agent in your region. Because of your reputation and no bad reviews, we propose that you be our agent. 

While, like the invitation for me to speak to you today, this was of course flattering, it clearly was not an offer that I couldn’t refuse! 

But it got me thinking: What if I did have bad reviews on my blog? Would they really not have completed my contact form? 

After all, let’s be honest here, if you’ve never had a bad review, then you’ve never taken a risk, and so never done anything worthwhile. So why should a bad review discount someone from consideration for an interesting project? 

Main Theme

Believe it or not, recounting that episode brings me to the main theme of my address this evening. It’s skepticism, and the importance — for everyone, really, but especially for lawyers — of being a skeptic. 

I am sure that all of you who know me will appreciate that this is a topic quite close to my heart! 

When Dean Wilson first told me that I had been elected to give the address this evening, my mind instantly turned to past Stetson Law Commencement speeches and, in particular, to the one that most resonated with me. It was given by the late civil rights campaigner and US congressman, John Lewis, who is probably most well known for advocating that people make good trouble. 

Well, I don’t think anyone doubts that I make plenty of trouble, though whether it’s good trouble is probably rather in the eye of the beholder! 

In his Commencement address, however, John Lewis gave that message a different slant. He argued repeatedly that it’s the job of lawyers to get in the way. 

Hmm, after having spent nearly two years of my life checking for bombs under my car because one of the projects that the Dean mentioned in her introduction involved rather too much of me getting in the way for the likes of some powerful people, I was probably able to appreciate Congressman Lewis’s words more than most. 

For those of you about to embark on your professional legal career, however, I am not sure that phrases like good trouble and get in the way convey much meaning. How can you be expected to know, at the very outset of your career, what sort of trouble is good? And surely it makes no sense to get in the way all the time? 

The Skeptical Method

Which brings me back to skepticism. If you’ve been paying close attention, you will have noticed that I have now quoted two people — the dubious Sam Johnson and the definitely-not-dubious John Lewis — and given their words the same skeptical treatment. 

I started out by doubting the veracity of what they both said. Experience then reinforced my view of Sam Johnson and his supposed gold enterprise. No doubt he’s also got a rich aunt who died recently, whose money he would very much like to deposit in my bank account if only I give him all my account details! 

In the case of John Lewis, however, experience told me two things. The first rebutted — there’s a good legal word for you — the first rebutted my initial skepticism and told me that his message of causing good trouble by getting in the way was, in principle, a good one that I could absolutely get behind. 

The other thing experience told me, though, was that, in one sense, my initial skepticism was warranted. Without the years of experience that both he or I had, his intended audience of Stetson Law graduates probably couldn’t make much sense out of what he was saying. 

So what I want to do for most of the rest of my address is to provide some tips that will actually make it practical to work out when it’s worth getting in the way because the trouble thereby caused will be good trouble. 

What Skepticism is Not

Being skeptical is the key to recognizing these things. But before I can explain properly what I mean, I first need to say both what skepticism is — and what it isn’t. Too often it’s confused with cynicism, which is quite another creature altogether. 

Cynicism is the pernicious and rather simple-minded belief that nothing changes and therefore nothing can be changed. If any of you graduating today are of that mind, then I urge you strongly to re-think. No-one needs lawyers like that, and the pessimism that cynicism inevitably entails will soon leave you probably not just disillusioned but in need of significant mental health care (a topic to which I shall return shortly). 

Skeptics also hate conspiracy theories, by the way, because experience has taught us that very few people can keep a secret (especially if it’s a big, juicy one that would be so much fun to tell just one person about) — and conspiracy theories depend upon an awful lot of people keeping a very big secret indeed. So we skeptics know that conspiracy theories are the biggest lie around. 

Nor should skepticism be confused with mindless contradiction. Mindlessness is the very antithesis of what we want from our lawyers, and skeptics loathe it because it has nothing to propose or suggest; it’s just an easy means of saying No to whatever anyone else suggests. 

You can see that my reaction to John Lewis’s speech was none of these things. 

But you will also have noticed that I was just as skeptical initially of John Lewis’s speech as I was of Sam Johnson’s email. This is vital. It’s too easy to give a pass to claims that end up wasting time and energy, or being counter-productive, just because we really like the speaker or because we really want to believe what the speaker has just said. 

It’s a trap I see far too many people fall into, especially people who get into positions of management. They end up playing favorites without even realizing it, and then wonder why things aren’t working out so well. Don’t fall into that trap. 

Instead, subject the views and claims of people you like (or want to like) to the same skeptical rigor as the claims of anyone else. If their claims hold up, you have even more reason to like them. And if they don’t, maybe it’s time to re-evaluate your estimation of them. 

So What is a Skeptic?

Having told you what a skeptic isn’t, what is a skeptic? This might come as something of a surprise to many of you! Skeptics — by contrast with cynics, conspiracy theorists, and mindless contrarians — are actually optimists. 

We are skeptical because we want to use our time productively and not get worn out or distracted by a succession of wild goose chases or bad practices that reduce the time and energy we have available to achieve something worthwhile. But we are very definitely looking to achieve something worthwhile. 

Sure, we skeptics aren’t a bunch of Pollyannas, seeing good everywhere we look. That’s hardly a skeptical approach! But the whole point of being skeptical is to make things — and above all, life — better. Which means, of course, that we think it can be made better. 

Skeptics have simply learned that the vast majority of claims that something will make life better are bogus. So we treat all such claims with caution, irrespective of their source. But if you can come up with a good argument or strong evidence to support your claim, then you can win us over. 

And surely producing a good argument or strong evidence is at the very heart of what we expect of good lawyers. That’s not just the case for advocates in court, of course. A good argument and strong evidence should also be what underpins advice to clients, or the inclusion (or exclusion) of specific terms in a contract or will — or the inclusion (or exclusion) of specific text in legislation or a court judgment. 

But optimism isn’t the only thing that defines what skeptics are. The other characteristic of a skeptic that’s often overlooked is that we aren’t idle. The point of avoiding things that waste our time and energy is that we then have much more time and energy to devote to projects that are worthwhile. Which means we have much more scope to really achieve something. 

Examples

Maybe you’re now practicing some skepticism of your own and are struggling to believe that skeptics truly are optimists! Or that skeptics are great achievers! 

So now I have to make good on the method I’ve just described and give you either an argument or some evidence to back up my claim. I’m going with some evidence. 

The project that the Dean mentioned that had me checking under my car for bombs saw me leading an inquiry into an elite squad of detectives, the Serious Crime Squad, in the West Midlands police force in the UK. The initial prompt for the inquiry was a series of claims of malpractice made by some of those convicted of serious crimes after Squad investigations. 

As a good skeptic, my initial reaction to these claims was: Well, they would say that, wouldn’t they? But, on the other hand, no such claims were being made about any other branch of the West Midlands police force. So it seemed to warrant some further investigation. 

As my assistant and I dug deeper, what we first discovered was that the Squad had an improbably high clear-up rate, much higher than any comparable unit. (Note the skepticism in that statement, by the way!) Then we found the reason. 

I sought out assistance from colleagues in the English department at the university where I was then a professor. They subjected alleged confession statements to both linguistic analysis and brand-new-at-the-time electrostatic document analysis. Together we were able to show that hundreds of alleged confession statements obtained by the Squad had, in fact, been fabricated. 

And by show, I don’t mean that we just convinced ourselves. No, the evidence we found was used as the basis of numerous appeals to the Court of Appeal in England, and more than 150 individuals had their convictions for serious crimes quashed as a result. 

That was certainly one of the most rewarding professional experiences of my career, not least in terms of the number of bottles of wine and brandy that I received as thanks from grateful attorneys! 

Inquiry as an Example of Skepticism

But I wasn’t citing that example as a means of acquiring a great cellar! 

I was using it to show that skeptics get their hands dirty because we believe in the possibility of change for the better. (A cynic, by contrast, would have done nothing because they believe nothing will ever change.) 

Obviously, my work on the Serious Crime Squad investigation achieved something worthwhile in having more than 150 people exonerated of serious crimes that they did not commit. But actually we achieved quite a lot more than that. 

In fact, the evidence from the inquiry led to the setting up of the Criminal Cases Review Commission, a permanent public body whose job it is in England to review convictions where there might have been a miscarriage of justice. Symbolically, it is even located in Birmingham, where I conducted the Serious Crime Squad inquiry. 

No longer do those wrongfully convicted in England languish in prison cells without hope. And, of course, each time someone is exonerated, the relevant crime is re-investigated and the real perpetrator often caught, prosecuted, and jailed. 

(As a side issue, by the way, this is one of the reasons that modern British detective series are often pre-occupied with so-called cold case investigations. They have become commonplace, and the TV series reflect that.) 

Mental Health

So, to all of you graduating today, I say that skepticism has a lot to offer in terms of driving your professional development and success. 

But let me conclude with some comments on a topic that’s too often ignored at events like these, though it has been brought to the fore in terms of the general population because of the continuing pandemic. That topic (which I mentioned earlier) is mental health. 

I say it’s too often ignored at events like these because not only should we be thinking of how all you new shiny graduates should go forth and work professional magic in the future, but we should also be thinking about how you take care of yourselves (particularly because the legal profession does have a history of suffering from higher rates of mental illness than is true of the general population overall). 

Clearly, therefore, I need to talk about mindfulness, which has become the go-to therapy for improving mental health. So let’s subject mindfulness to the skeptical gaze. 

Starting from the default skeptical position that doubts everything, we ask those advocating for mindfulness to produce an argument or provide evidence that it works. They typically respond, first, that those who have traditionally practiced mindfulness — i.e. Buddhists — have a much lower propensity for mental illness and, second, that many people who have tried mindfulness in the West feel so much better for doing so. 

Now there’s an important key word for an experienced skeptic: feel. Always beware whenever someone says feel! It’s a weasel word with so much ambiguity built-in, ideal for camouflaging the likely truth that the speaker has no real argument or evidence at all. 

My former students will know that there’s quite a long list of legal terms to be skeptical of too. (You will be grateful that I won’t recite that list here!) But the word feel is a word to be skeptical of in a variety of circumstances. 

We know from countless medical studies that placebos make people feel better. They do so simply because people believe in them. But if you have (say) cancer, or a broken leg, or brain disease, a placebo will do absolutely nothing to cure or mitigate the underlying problem. 

So we can discount the feeling evidence supporting mindfulness. It’s quite possible that it’s just the placebo effect at work. If someone comes along next year with a new technique — let’s call it brainwaving — and brainwaving catches on, then it would have much the same effect on people’s feelings as mindfulness does now. 

Honestly, this should come as no surprise. Consider all the new diets that have been created, and how so many people who try them at first claim to feel — there’s that weasel word again — to feel better while following them. But after a while, objective reality kicks back in, and the dieter realizes that they are back where they started. 

Mindfulness is Worse than a Placebo

But it turns out that mindfulness is actually worse than a placebo. Yes, there is actually clear evidence now. We now have proper, peer-reviewed, published research on the effects of the practice of mindfulness in the West. The problem is that taking a technique from the East and transplanting it to the West (especially the US and UK) without really understanding what mindfulness involves has significant unintended and counter-productive side-effects. Because, in the West, practicing mindfulness makes you more selfish. 

If you think about it, it’s not hard to understand why. All that thinking about yourself: what could possibly go wrong?! No wonder there’s so much narcissism around! And no wonder those practicing mindfulness claim to feel better! They probably aren’t better or healthier people at all; they’re just happier about not being very nice! 

But Here’s the Good News!

The good news is that skepticism is actually good for you! 

Yet, weirdly, we hear very little about encouraging skepticism as a means of addressing mental illness. So I’d like to finish by doing my bit to rectify that omission. 

Being skeptical makes you less likely to be conned or defrauded (in your personal as well as in your professional life). It also makes you less tolerant of pointless or counter-productive work practices, which means you’re less likely to find that you’re spending lots of your life wasting time or frittering away good opportunities. So skepticism helps you avoid major causes of mental illness. 

As I’ve already explained, skepticism is also a gateway to problem-solving, creativity, and innovation: i.e. to mental stimulation and experiencing interesting new things. Keeping the mind active is one of the best ways of keeping it healthy. 

So it turns out that being skeptical is not just a good work strategy. It’s not even just the key to being a great lawyer. Of course, skepticism is both those things. But it’s also probably the best way to maintain your own mental health! 

Conclusion

Many of you will, of course, be skeptical about what I have been saying. Which means, paradoxically, that I might have won you over already! 

You should indeed be skeptical. But you should also now follow through. Those of you who are not used to being skeptical should try adopting the skeptic’s method and see what happens. You can thank me later! 

Alternatively, I know of an interesting opening for a gold merchant. My friend, Sam Johnson, has the details! 

Thank you!