A peculiar foible of criminal defense lawyers is habitual contrariness, at times mindlessly practiced even when the contrariness is irrational. Or worse.
Is law school largely a scam? Probably. A worse scam than the rest of “higher education”, or Congress, or mortgage lending, or for that matter lending of any kind through the banking system, or maybe even the legal profession as a whole or the justice system itself? Doubtful.
We live in the fallen world, not paradise.
The question is: What is to be done? This involves more than critiquing and complaining that no one is really doing anything. Or really wants to. Although that is pretty much where Scott Greenfield leaves it:
And they’re coming up with schemes to cure their ills…All these hungry little buggers they’re sending into the profession need to find a way to pay off their loans and keep their mommies from crying, and if you read their blogs and websites, they’re smarter, more aggressive, more caring and, yes, more experienced than you. Baloney, you say? Yeah. So what? They’re doing what they’ve got to do to survive, and niceties like integrity are for old guys. They’re fighting for their lives and, frankly, have completely rationalized ethics out of the picture. And since they are all brilliant (ask them, they’ll tell you), they see no net harm from a bit of puffery…Are any of these schemes going to make a better legal profession? For a bunch of smart people, these schemes strike me as pretty darned inadequate, both for law students, for the profession or, most importantly, for clients. But then, if we leave it up to the lawprofs, what should we expect?
I don’t think it’s fair to characterize younger, “hungry” lawyers as insufficiently ethical or integrity challenged, whereas the old wizened sea dogs like Greenfield are increasingly lonely but integrity-filled paragons. That’s absurdly self-serving under the circumstances.
For lawyers there’s a lot of work to do. I mean, the system is seriously fucked up and people are getting seriously screwed over. The problem is getting paid for it, which is to say paid for what is actually needed: helping the people getting screwed over. The screwees, not the screwers. Practically by definition, the latter can pay you but the former cannot, or at least not very well. So the profession has gravitated inexorably towards representing the latter.
Well, that’s one problem anyway.
Scholarship is so not the problem, which is why law schools aren’t so much an obstacle to improving the profession as they are irrelevant. The law is not, and should not be, an imposingly intellectual endeavor. Not that long ago many lawyers went to law school right out of high school. In fact, many lawyers didn’t go to law school at all.
So really we are looking at an economics problem. And like all economics problems in the modern world, it is really – underneath it all – a political problem. In other words, a power distribution problem.
So I thought this little anecdote (via Mark Bennett) was interesting:
And then there was the ham-handed attempt to bully me out of filing the Judicial Misconduct Complaint against Campbell… I was having an innocuous back hall conversation with Judge George Godwin, the former presiding judge of the 174th Criminal District Court. I always liked George Godwin. We were having a friendly chat when Judge Godwin, suddenly brought up the topic of judges sticking together. In the middle of a friendly conversation, without any segue, Judge Godwin said to me, that any attack by the defense bar on his brethren or “sistren” of the judiciary, would be viewed as an attack on all of them. As there was no segue, I was admittedly caught of guard by Judge Godwin’s comment. The conversation came to a screeching halt and I left… After hearing Godwin’s “Judicial Nato Speech”, I thought, if the judges think that I will be bullied out of filling a legitimate Judicial Misconduct Complaint, they do not know me and they do not know HCCLA. If anything, Godwin’s comments confirmed my deeply felt belief, that as lawyers we must be willing to stand up to judge’s who engage in unethical or illegal actions. So, as was my duty as then President of HCCLA, I filed the Judicial Misconduct Complaint against Campbell.
Of course the Judicial Misconduct Complaint went nowhere. You see, the “Judicial NATO” is bound to include those who decide Judicial Misconduct Complaints.
What this illustrates is that the judicial powers-that-be feel they can walk all over the criminal defense bar and suffer no consequences whatever. And they’re quite right about that, and indeed it isn’t just the criminal defense bar, it’s independent lawyers generally. The power differential has become so lopsided that judges will not only behave this way, they will openly threaten to behave this way. It was better when at least they would be ashamed of it.
And this explains a lot. Represent an individual litigant against an influential or institutional one, and what do you find? Probably more than half the time you will never get the case to a jury. When you do, the judge will try to undermine you from winning the trial at all, but certainly from winning convincingly, the result being that half of the remaining cases that actually make it to a jury will wind up losers. And even if you beat the odds and win “too much” – in the sole opinion of the judge, of course – it can all be taken away.
Put the shoe on the other foot, where the institutional litigant is bringing a criminal case, and what do you see? 90% plus resulting convictions.
The civil plaintiff and criminal defendant are flip sides of the same individual litigant coin. It’s not the facts and it’s certainly not “the law” determining outcomes; it is who has power over whom.
Since this is not a question of better arguments or innovative programs, then, but rather the far more primitive issue of raw power – like war, really – you have to think in terms of what damage you can inflict on your adversary from the relatively powerless position you occupy.
This blog came up with an idea at its inception: strikes by independent lawyers. These would work better than anything else I have seen suggested to shake up our increasingly corrupted profession, because it attacks the Achilles heel at the foundation of the “adversarial” system: its pretense of a fair fight. It can’t be a fair fight if the little guys call foul by not showing up in the first place. It’s really as simple as that.
With a more level playing field, there is room for more lawyers, at a time when – and to be sure this goes against conventional wisdom but it couldn’t be more true – more lawyers are desperately needed. Independent lawyers. Real lawyers, in other words.
By and by, with a more level playing field and the system behaving more like it is supposed to, the money will follow because it always does, flowing from the biglaw firms and government agencies to the individual litigants and their independent lawyers. And this addresses a lot of problems at once – law school expenses, serving needy clients, preventing wrongful convictions. Money can do that. Money is a form of justice, or at least a measure of it. Sometimes. When things are working more or less correctly.
Alas the whole strike idea, while it has a lot of merit, not to mention precedent in other places, and there don’t seem to be any good arguments against it, was not well received by Greenfield, who has yet to offer any solutions of his own other than to carp at young lawyers, or often even mock them.
I wish he’d cut that out. It’s a bore, but more than that it’s myopic, and to the extent he has any influence in framing this debate he’s not doing anyone – or the profession – any favors.