October 2001 

Why I Am a Lawyer

By Joseph L. Daly

If you substituted words like "woman," "black," "Jew," or "homosexual" for the word "lawyer" in lawyer jokes, you might risk being arrested. No one loves a lawyer. While there are many professions that have lost their luster, the law profession has become so tarnished in the eyes of the public that almost any joke about a lawyer is acceptable. Neither cruelty nor outright hatred is deemed inappropriate in the context of a lawyer joke. Being a lawyer today is harder than it was yesterday and it is getting harder all the time.

Law school applications reflect this change in perception about the legal profession. Many law school deans have been troubled in recent years over the rapid declines in the number of law school applicants. Between 1990 and 1997, applications decreased 27 percent from 99,300 to 72,300.

With so little honor associated with the law profession these days, one must wonder why any person aspiring to do something respectable with her or his life would choose to be a lawyer. To become a lawyer today, students must have a firm desire to be an attorney and a steadfast willingness to accept social opprobrium.

The journey through law school is the aspiring lawyer's access to the legal profession. So what is it that happens at these institutions that arguably transforms the average, decent person into someone so unworthy of respect that she becomes the subject of cruel and hateful jokes? Law students do not enter law school with those malevolent characteristics that the public loves to ridicule.

Dr. Andrew Watson, a psychiatrist at the University of Michigan with a joint appointment in the medical and law schools, made it his academic interest to study first-year law students. He has identified common characteristics that separate first-year law students from the general population, including altruism, a high need for certainty, an increased concern over the expression and nonexpression of aggressiveness, and the incorporation into their identity of a model for professional behavior.

When students enter the classroom, their motivations become subject to the goals and objectives of their professors. Since most law students have never consulted a lawyer, unlike medical students who universally have consulted a doctor, the law student's typical first view of "professionalism" is the law professor. Most law professors have the following professional objectives: 1) to teach students legal knowledge and help them develop the skills necessary to engage in the lawyering process; 2) to guide students in dealing with their feelings; and 3) to give students a healthy attitude about some of the tough issues surrounding the practice of law.

The law student devotes most of his time to gaining knowledge. A law student has only three years to absorb a tremendous amount of substantive, procedural, and practical knowledge. What are the elements of negligence? What is the objective theory of contract formation? How much power may Congress delegate to an administrative agency without violating the separation of powers doctrine? These are typical of the thousands of questions to which law students must have the answers in order to pass the bar examination and become lawyers.

At the same time, students of law must develop a myriad of skills they will need as effective lawyers. Students must be capable of analyzing any given case, following Congress' codification or reversal of common law principles, and shepardizing cases to ensure the cases have not been overruled. They must also become skilled at speaking in public, asserting or defending a position orally and in writing (even a position the student finds obnoxious), and interviewing clients.

Some, but by no means all, law professors will attempt to provide guidance to students to help them work through their conflicting attitudes and feelings about vexing issues they may face. For example, should a defense lawyer zealously strive to get a child molester acquitted on a constitutional error if she truly believes the defendant is guilty? What is the balance between the need for security and order and the need for liberty when it comes to the pursuit of happiness in a constitutional democracy; and in light of that balance, should criminals be sterilized if they are known to possess a gene that has a high probability of producing criminal traits? If a client provides information of his intent to inflict serious bodily harm or death on a third person, should a lawyer tell the authorities or keep her duty of confidentiality to her client? Lawyers are faced with these issues and many others like them during the practice of law. Law students must confront and ponder these issues in the classroom before they are forced to make difficult decisions while practicing outside of a safe learning environment.

The key facet of lawyering with which law students inevitably collide, which is rarely, if ever, formally discussed in the classroom, is that the profession is entirely about dealing with the reality of human conflict. Everything a lawyer does is an effort to either prevent or resolve some type of dispute. Any incoming ideology about "love conquering all" is quickly shattered. Imbedded in every case the law student reads is the reality that human conflict is inevitable and painful, no matter how much love there is, no matter how ideal a relationship seems, and no matter how many precautions are taken to avoid conflict.

Medical students are faced with a similar reality. Many come to school with idealistic, altruistic notions about making people well, or at the very least, eliminating or alleviating their suffering. When medical students learn that some suffering is inevitable because it is the nature of the human body to experience pain, they must quickly adjust their philanthropic motivations. Ultimately, medical students and doctors have to learn how to help their patients mitigate or eliminate their suffering even though the reality is every patient will ultimately die. Each new doctor must come to grip with the inherent despair in life and death.

In the same way, law students must come face to face with the reality of human conflict. Conflict is unavoidable when free-willed human beings live together in society. In the United States, where diversity is deeply embedded in our culture, and where each person is uniquely important, equal to others, and endowed with unalienable rights to life, liberty, and the pursuit of happiness, conflict is certain to arise. When lawyers represent clients, they are charged by the United States Constitution to act in such a way as to "form a more perfect Union, establish Justice, insure domestic Tranquility ... and secure the blessings of Liberty … ." In light of the public's general view of the legal profession today, one must wonder just how many lawyers do, in fact, act, and how many law students are taught to act, in ways that affirm these goals.

In the recent past, the skills and attitudes which lawyers and law students typically brought to the table when they helped a client resolve a conflict were similar to those that characterize combatants and warriors. Lawyers tend, even today, to assume an adversarial position. They size up their opponents, view them as adversaries, determine what it will take to defeat them, and bill their clients accordingly. Even though litigation appears to be a civilized process of law (Rules of Evidence, Procedure, and Ethics), it is, in fact, a form of civilized warfare.

But today's society has become sickened by the warrior methodology of conflict resolution. Although litigation falls short of bombing and killing, which are features of war, it allows for and even encourages aggression and an active, attacking offense and defense, which can hurt, injure, and outrage. Trials take a psychic toll on the parties to the conflict, often leaving them wounded, scarred, stressed, and damaged beyond repair, even before the judgment is announced, regardless of whether they win. The legal profession has only recently begun to understand that litigation, contrary to popular belief, is not the only way, and certainly not necessarily the best way, to resolve disputes.

Lawyers and law schools are beginning to realize that there are more positive, healthy ways to resolve many conflicts than the adversarial approaches that lead to litigation warfare. There is a vital difference between asserting oneself strongly and being combative. Conflicts do not need to be negative and destructive of relationships. Rather, conflicts can be opportunities to expand understanding and reach new solutions. Conflicts, while stressful, can bring about lasting, positive results. The growing field of Alternative Dispute Resolution (ADR) provides methods to resolve disputes in more humane ways than the adversarial, litigious approach. ADR provides a variety of opportunities to address the underlying needs of persons in a dispute and creatively explores a variety of solutions that are beneficial to both sides. Many ADR methods seek to bring people back together when the conflict has torn them apart, as opposed to driving them farther apart, which almost always occurs as a result of litigation. ADR methods, like mediation and conciliation, are more likely to help people realize all the areas in which they are in agreement, and such methods strive to encourage each person to affirm the humanity in the other person. After all, while the issues may separate them, their common interests join them. In short, ADR seeks to affirm those principles set forth by the framers of our Constitution: to "form a more perfect Union, establish Justice, insure domestic Tranquility … promote the general Welfare, and secure the Blessings of Liberty … ."

Yet, even so, it is important for lawyers to litigate in order to "establish Justice." When it comes to human rights and human dignity, the attorney is often the only person standing between his client and the full power, might, and authority of the State. "Fifty million Frenchmen can be wrong." Even the majority do not have unlimited power in a constitutional government which has a Bill of Rights. Sometimes it is moral, legal, and necessary for a lawyer to go into combat on behalf of one individual and to shout to the world, "No!" With the rise of international standards for the rights of all human beings, overriding even the age-old principles of state sovereignty to act toward their citizens as they please, all of the civilized world recognizes that every individual has the right to be treated in a humane manner. In order to achieve the "justice" about which the Framers of the Constitution wrote, warfare, whether in a courtroom or on the battlefield, is, on rare occasions, necessary. However, warfare is not a useful method for dealing with the types of conflicts people encounter on a daily basis. For example, the growing problem of road rage, where people are literally shot and attacked for doing something so small as forgetting to signal before they change lanes, shows how destructive employing an extremely adversarial method of resolving conflicts can be. All the alternative dispute resolution mechanisms are valid methods to resolve conflict, and lawyers must know how to use them.

So why do lawyers immerse themselves in the conflicts of others? Certainly it is not always the monetary incentive that the public seems to believe. Many lawyers could make the same, or more, money doing things that are far less painful than placing themselves in the midst of other people's problems every day of the week.

The point is that lawyers must be committed to a more perfect Union, establishing Justice, insuring domestic Tranquility, promoting the general Welfare, and securing the Blessings of Liberty. These values are behind why lawyers do what they do. The conflicts that inevitably arise between human beings must be resolved in ways that will facilitate the growth of human individuals and social values. Despite what the lawyer jokes indicate, we in the profession must understand that the values enshrined in the Preamble of our Constitution really do mean something. They mean the fulfillment of each of us, each of our children, and our society. They represent the hope of a life well and fully lived. They mean a country and a world of decency and respect for human values. Ultimately, they mean a world that permits individuals in society to pursue happiness in a social manner. It is lawyers, more than any other profession, who are charged with the knowledge, skills and attitudes to fulfill these values. That is why I am a lawyer.

 

JOSEPH L. DALY is professor of law at Hamline University School of Law. An expanded version of this article appeared in the Fall 1998 issue of the San Diego Law Review. (c) 1998 by the San Diego Law Review; reprinted by permission of the San Diego Law Review Association.