I am something of a connoisseur of internet amplified graduation speeches. I just like the genre when it’s done well.  The best one ever delivered is David Foster Wallace’s 2005 commencement address at Kenyon College, “This Is Water.” It has no tie in to this post. I just like an excuse to mention it. If you haven’t listened to it, you should, it will improve your next ordinary Tuesday in the trenches of adult American life.

What does have something to do with this post is a different commencement speech I came across more recently: Jerry Seinfeld’s 2024 address at Duke. It’s funny, as you’d expect, but buried in the jokes is an observation that stuck with me. Seinfeld’s point, more or less, is that people today have the whole shame calculus backwards. They’re proud of things they should be embarrassed about, and embarrassed about things they should be proud of.

Turns out Seinfeld isn’t the first person to notice this, and it isn’t just a bit. James Traub piece in the Atlantic a few years back, “Have They No Sense of Decency?,” made essentially the same observation in a more sober register: shame just doesn’t operate the way it used to. If you are in a more right-of-center mood, Peggy Noonan’s piece in the Wall Street Journal, “The Senator’s Shorts and America’s Decline,” discussing John Fetterman’s fashion choices gets at the same thing.

Conduct that would have ended a career or a marriage a generation ago, or at least would be a source of significant embarrassment, barely registers today. People shrug it off, deny it, spin it, or double down. Nobody gets caught doing something obnoxious, disreputable or illegal and slinks off in disgrace anymore. They go on a podcast tour.

I bring all this up because it comes up, almost verbatim, in a conversation I have with clients on a fairly regular basis.

The Embarrassment Fallacy

Some of my clients — smart people, successful business owners, people who have built real things — sit down in my office and, at some point in the first meeting, say some version of: “Once we file this, they’re going to be so embarrassed. They are not going to want this to come out. They’ll settle quickly.” Sometimes the ambitions are more modest than a lawsuit. They think a sharply worded demand letter will do the trick, because surely the other side doesn’t want a certain fact getting out.

I understand the instinct. It feels intuitive. Nobody wants their business partner, their spouse, their bank, or their community to learn about the affair, or the brazen theft, or the shortcut taken with the books. Embarrassment feels like leverage, so surely it functions like leverage.

It almost never does. Most people, and nearly every company, have already made their peace with being embarrassed. They’ve priced it in. Individuals have a spouse who already knows more than they let on, or a social circle with a short memory. Or, more to Seinfeld’s, Traub’s and Noonan’s point, they just don’t care and cannot be embarrassed. There is no reason to be because the age of respectability is over.

What We Tell Clients Instead

Over the years we’ve represented clients against counterparties who were carrying on affairs, who were quietly siphoning money out of the business, who committed outright bank fraud. Nearly every business divorce case we handle involves some flavor of tax evasion. None of that is unusual, and none of it, standing alone, wins the case or forces a settlement. It’s evidence. It supports claims. It occasionally moves a jury. But by itself, it does not make the other side wave the white flag out of shame.

What I tell clients instead is this: assume the embarrassment never materializes. Assume the other side reads the complaint, shrugs, and lawyers up anyway. If you are still willing to see the case through on the merits, because the claims are strong and the damages are real, then we should file. If the whole strategy depends on the other side caring what people think of them, we need to talk some more before you spend the money.

None of this means bad facts don’t matter. They do, just not usually in the way clients initially expect. They matter for credibility, for settlement value once a case has some age on it, for how a jury sizes up the parties when the time comes. What they almost never do is function as a stand-alone lever that ends the fight early because somebody got embarrassed. Treat any anticipated embarrassment as a bonus, not a strategy, and you won’t be disappointed when it fails to show up.

So if you’re gearing up for litigation, or even just drafting a sharply worded letter, do yourself a favor and don’t count on shame to do any of the work for you. These days, almost nobody has got any left to spend.