Bringing a Lawyer to a Gun Fight
posted by Dave Hoffman
Tonight, I was reading “Why I am Not a Lawyer,” in Joseph Epstein’s In a Cardboard Belt!. Epstein wonders about the decline and fall of the American lawyer.
“[How did they go from] America’s natural aristocrats, from an almost priestly cast, to figures an increasingly large share of the population look upon as, chiefly, dangerously expensive to do business with, hopelessly pugnacious, and people for whom life is much better when they play no part in it. Something has happened to the practice of law over the past fifty years to cause it to lose its grandeur, and, in many quarters, even its dignity. To allow that one is a lawyer nowadays even gain[s] you the automatic contempt of strangers.”
How did this happen? Epstein suggests that we’ve lost some of our well-roundedness – he refers to Oliver Wendell Holmes Jr. as a shining model of the past. Holmes was “tremendously well rounded” “splendidly well read in all realms of civilized interest” and could “doubtless have served in the Department of Philosophy at Harvard with his friend William James.” (Heller ignores Holmes’ cold dislike for actual people.) Today, (Heller alleges by contrast) lawyers are “businessmen, entrepreneurs, operators, hustlers….”; they lack virtue because they are seen to be partisan; they lack loyalty because the have monetized their partnerships; and the law has lost “its old and grand mystique . . . it is [instead] business, an efficient form of moneymaking and not much more.”
There’s quite a bit here. But it’s worth starting with the observation – made in the context of today’s political debates – that politicians too are castigated for being partisan, but most risk-averse voters chose candidates who can withstand such fights with more ease. As a commentator on Talking Points Memo wrote (in evaluating the Clinton/Obama choice):
“I’m reminded of people who hate lawyers because they’re too contentious and sleazy and aggressive — but when they get sued, they insist on getting the meanest bull dog of a lawyer they can find.”
That is, in the old days, lawyers were gentlemanly, courteous, learned, but probably something less than zealous advocates for their clients. Lawyers today offer better – more sophisticated, thoroughly researched, and nuanced – arguments than lawyers in the past; their deals are more carefully worded. We’ve lost the public good of the Bar’s reputation, but we’ve (probably) improved client service. Or to put it most provocatively, I’d prefer to hire a team of attorneys at a mid-sized legal firm to the brilliance of Holmes or Brandeis. They’d work harder.
Second, I wonder if Heller’s point also illuminates some of the class dimensions of the Tamanaha-Solum-Leiter-Solove discussion about the usefulness of Interdisciplinary Legal Studies. Why do you think? Is ILS an attempt to recapture lawyers’ position as the country’s “natural aristocrats.”
January 21, 2008 at 11:16 pm
Posted in: Legal Ethics
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Responses (3)
Charlie Martel - January 22, 2008 at 11:22 am
A good word about lawyers and judges. My guess is that when the history of this nation’s reaction to 9/11 is written, lawyers and judges will be written of most generously. Regardless of what one’s views are, the legal dialogue on the panoply of issues has been deep and most thoughtful. There are many stories of lawyers involved with these issues taking courageous, principled stands–think of military lawyers, Jack Goldsmith, John Ashcroft as people who took positions different from what might have been assumed. I raise them as examples but there are many others.
We’re not all bad.
Charlie Martel
Mike O'Shea - January 22, 2008 at 7:49 pm
It’s interesting to read old (say, pre-1950) legal briefs by prominent members of the local or regional bar.
One tends to find stuffy, although not graceless, diction — passive voice and such — combined with what a lawyer at a modern firm would deem a shortage of citations to authority and close analysis thereof.
Of course, we have Westlaw.
DH - January 25, 2008 at 4:49 pm
I respectfully dissent.
“Hard-working” lawyers at mid-sized firms are padding their billables. They twist cases out of context. They cite too many cases to make their point. They withhold documents with bogus privilege claims. The “nuance” of their arguments usually is just misrepresentation. They write atrociously and commit fallacies with regularity.
And because they do not respect the majesty of the law, they fail to think ahead to the appellate stage. While serving their clients efficiently during discovery and trial, they often fail miserably on appeal precisely because of their “win-right-now-at-all-costs” tunnel vision.
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