In Defense of Lawyers


In Japan, lawyers rank right below doctors in the list of most respected professions.  In the United States, they rank with politicians as one of the most reviled.  The difference is striking.

Part of the problem in this country is oversaturation.  Compared to Japan, where the passage rate under the old bar exam was around 3%, American states admit new lawyers like the Confederacy printed money.  Last year, an astonishing 86% of graduates of ABA (American Bar Association)-approved law school who took the New York bar exam for the first time passed.  Massachusetts is so notorious for easy bar exams that the state is ridiculed “Passachusetts.”  There is one lawyer for about 360 people in the United States.  This is not just a recent trend:  a vast majority of the Founding Fathers were attorneys, deeply ingraining the legal ethos in our society.  In America, you can’t even die without a lawyer–the last insult of death.

Yet I think the legal profession suffers from a profound misunderstanding.  Lest there by any doubt, I’m no lawyer apologist.  I find medical malpractice suits to be mostly problematic and class action suits to be pointless.  The ambulance chasers are reprehensible, although truth be told, this is a notion shared by most members of the profession.  But precisely because I’m skeptical about our profession’s contribution to society, my defense of the profession should carry some weight.

When I ask people why they hate lawyers, the first answer I get is that lawyers defend scums of society.  They view it as grave injustice that the murders, kidnappers, child molesters and corporate raiders “get off free” when attorneys who represent them know they’ve done the crime.  But when I ask the same people whether every person has a right to a fair trial, whether each is innocent until proven guilty, they will unequivocally answer yes without realizing the irony: what they’re asking for is a fair trial so long as the alleged murderer is found guilty.

American legal system is not about finding the truth, it’s about fairness.  And we find “fairness” not in sending every criminal to jail, but in taking precautions that no innocent will be found guilty.  We have decided that it is better for the guilty to go free than the innocent to be incarcerated.  Lawyers use the term “burden of proof” to convey the concept that the prosecutor must prove the case.  The word “burden” accurately depicts the hurdle the prosecution must overcome.  It’s not easy to prove things; documents are lost and memories fade.  Our system is intentionally designed to tilt the scale in favor of the defendants.  The question is not whether the defendant has committed the crime but rather whether the prosecution can prove that he did.

For such judicial system to function, it requires effective defense attorneys to represent the accused, regardless of the crime.  These attorneys challenges the prosecution to meet their burden of “proof beyond a reasonable doubt.”  They poke holes in the prosecution’s theory and questions the veracity of the witnesses.  Alleged robbers, rapists and murderers may be distrusted but, as my mentor pointed out, police lie too, and apparently all the time.  Our legal system doesn’t take the words of the police at face value any more than it take the words of alleged criminals at face value.  Anyone who believes in fundamental fairness in the judicial system should take great comfort in this.

The importance of attorneys in the civil system is no less greater, although the role is somewhat different.  The truth is that for all the criticism that are aimed at lawyers, the clients who initiate the suits are the worst offenders of decency in civil litigation.  I’ve observed people spending $50,000 in legal fees fighting over a $10,000 estate of their parents because the siblings were vindictive.  Former business partners would refuse to consider a settlement offer because they had a score to settle.  Litigants come into court expecting they can tell their story without any evidence and be awarded the money, while insisting it’s not the money but the principle of the matter.

There is neither justice nor principle in civil litigation.  There is mostly anger and revenge, at all cost.  In this emotionally charged atmosphere, lawyers play an important role of  turning the temperamental story of their clients into a rational case that can be a basis of fair decision-making.  Indeed, a lawyer’s most important job  is not to articulate the client’s position, but to control the client.  The best lawyers I’ve observed–and the ones most ethical–are those who  filter their clients’ irrationality rather than act as a mere mouthpiece to deliver the message.  Good lawyers have their clients respect their advice about litigation strategy and settlement negotiations.  They bring some objectivity and reason that clients neither have nor care to have.

The next time you’re inclined to criticize lawyers, pause and think about why we do what we do.  God knows the profession needs to seriously evaluate its contribution to American society, but you may find that you’re simply criticizing lawyers for reflecting the values of our legal system and the inclinations of members of our society.  That just may give you enough discomfort to hold your tongue and refrain from showing disrespect.

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9 Responses to “In Defense of Lawyers”


  1. 1 Jay the Elitist December 9, 2010 at 11:47 pm

    You don’t mention corporate lawyers. I’m curious…

    Do most people really say, “lawyers defend the scum of society”? I find that hard to believe.

    I’m confused. You want me to respect lawyers, but you told me many reasons why lawyers are assholes and only a few, vague references of some lawyers being ethical and helpful.

    Other than that, hot blog post, Joe!!!

    • 2 joesas December 19, 2010 at 4:37 pm

      Jay,

      The case for corporate lawyers is similar to civil lawyers, but since I’m in this field, I thought I’d at least pretend to be somewhat objective by not discussing it. You don’t think we’re not worthy of respect, do you????

      I thought I made a pretty compelling argument about respecting this profession, but I guess fleeting references to ambulance chasers and class action suit plaintiff attorneys left a more lasting impression…

      • 3 Jay the elitist December 20, 2010 at 4:27 pm

        Didn’t say I don,t give lawyers respect, you just didn’t give me any real evidence of lawyers being ethical and helpful..

        Most importantly, Since you are a lawyer and you were arguing to respect lawyers, you already lose in having a non-biased objectivity on the subject.

        • 4 joesas December 21, 2010 at 8:35 am

          Jay the Elitist,

          I thought “controlling your client” was a compelling case for why we need lawyers. For example, if you were to sue me for slander for what I write in my blog, you certainly would need a lawyer to control yourself.

          And I deem myself perfectly objective because I’m a lawyer who was writing about lawyers in other fields. Only by becoming a lawyer can you appreciate why we need one, or so it seems…

  2. 5 Chris December 14, 2010 at 9:58 am

    As you probably know, I am involved in very frequent litigation, and there is no surer sign of a bad lawyer than one that echoes what his or her client says. Intelligent litigators attempt to avoid litigation in most cases, but when you do litigate, it’s all about:

    1. Distilling your client’s ideas into a cogent message/story that a judge will understand.
    2. Organizing your evidence and argument in such a way that it encourages the judge to take your position. Often this involves *not* advocating exactly what your client wants, but advocating something similar. Most judges don’t like to give any party to civil litigation exactly what they want, so sometimes advocating something similar but hinting at the intelligence of the decision that you really want is actually more effective. You want the judge to think that your idea is really his/her idea.
    3. Convincing your client to answer questions in a particular (but still truthful) way, and preparing them for all of the questions they’re likely to face.
    4. Preparing your client for courtroom etiquette/demeanor, so that they don’t annoy the crap out of the judge right from square one.

    If you can do those things effectively, you will win cases that you should win, win a large percentage of the close cases, and occasionally win a case that you should lose. (Although if you should lose the case, you should really try to convince your client to settle. Alas, we can only lead clients to water.)

    • 6 joesas December 19, 2010 at 4:40 pm

      Chris,

      Having observed great attorneys as a law clerk, I fully agree with your analysis. I think non-lawyers have trouble appreciating point 3…

  3. 7 Anonymous December 19, 2010 at 7:00 pm

    I agree with your analysis. I desire to be in the legal profession because of my interest in the law and admiration of the founding fathers who were lawyers, even though I will be a paralegal. I must note I am also interested in litigation.
    I think like in every profession there is good and bad. Lawyers just get more of a bad rap for whatever reason.
    I also agree that it is about fairness for the most part. However, I find it disgusting when people litigate againast companies because they can not control their own personal habbits. Like people who sue McDonald’s because the toy entices their kids to eat there. Control your own kids!!!

    • 8 joesas December 21, 2010 at 8:39 am

      Dear Anonymous,

      Good luck in your legal pursuit. I think litigation is a fine field to go into. The problem with ridiculous suits is not just that there are attorneys who are willing to take the case, but there are plaintiffs who are willing to file it in the first place. These lawyers get a bad rap for good reason.

      Thanks for reading and taking the time to comment!


  1. 1 In Defense of My Education… « The World According to Joe Trackback on February 28, 2011 at 6:03 am

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