Lawyer Reform

Overview

Today our nation has graduated more than 1,000,000 lawyers from our nation’s law schools. Which is an obvious oversupply. But the more significant event is that these law schools are graduating over 40,000 new lawyers each year.

A little math will show that in a dozen years we will have nearly 1,500,000 lawyers. A frightening thought when you ask the question: Where will they find the work? By creating it of course. At your expense.

A most alarming political problem confronting America is the deployment of thousands of lawyers, once again, to litgate the presidential election. No one can think that deciding that contest in courtrooms is healthy for American politics. But as both parties have “lawyered up,” the public can only watch helplessly—and despair.

Democrats are itching to litigate basically because, for them, it is an article of faith that George Bush stole Florida; lawyers, therefore, are a necessary protection against a repeat of this injustice. Republicans have had no choice but to respond with their own legal armada. Thus, the stability and legitimacy of presidential succession, one of the glories of our constitutional system, is being put at risk in large measure because of the fervent belief that Al Gore should have won Florida’s electoral votes.

Independent reviews of the Florida ballots indicate that Mr. Bush would have won if the general recount ordered by the Florida Supreme Court had been allowed to go forward, and even if the highly selective recount requested by Mr. Gore had been carried out. Given this evidence, and given what is at stake for our constitutional system, why do so many Democrats still cling to their conviction that the Florida election was stolen?

Two explanations are commonly offered. Each is plausible to an extent, but not fully satisfactory. The first is that cynical party leaders have intentionally perpetuated a falsehood so that a misinformed base, energized by fury, will vote today in droves. But party leaders simply do not have the power to shut people off from the facts. More importantly, it has been clear from their manifest outrage during the campaign that many in the Democratic Party badly want to believe that the Florida election was stolen. So they do believe it—not in the absence of the facts, but in the face of them.

Hence the second conventional explanation for the persistence of the belief that George Bush has been an “illegitimate” president, which is that since the story of the stolen election meets deep psychological and political needs it is impervious to known facts. The 2000 election has now achieved mythic status. But this is more a description of the problem than an explanation. Yes, myths are resistant to facts, but why has this particular story become a myth?

The answer to this question has to do with the suffusion throughout our political culture of certain lawyerly habits of mind. To understand the reckless willingness to put a crucial element of our constitutional system at risk, it is necessary to understand some of what goes on in our law schools—and this in the minds of members of America’s most powerful profession.

Consider one aspect of the Florida myth that has some basis in reality. It may well be that more people in Florida intended to vote Gore than Bush and that the Bush victory was based on mistakes in marking ballots. To the extent that this is the basis for Democratic outrage, the facts do not matter because the outrage is not based on how the marked ballots were counted but on the failure of the marked ballots to reflect true intentions. But to what kind of mind is it a profound injustice that some voters either did not have the intention that is now attributed to them by the Democrats or, if they did, failed to implement their intention?

The answer is that it is an injustice to those for whom abstractions matter more than actual behavior. And nowhere is that preference more ascendant that in the legal academy. I am not referring to small professional quirks, but to recurrent, fundamental instincts that shape the nature of acceptable argument and of American law. To take but one of many examples, our most influential legal philosopher, Ronald Dworkin, has long insisted that constitutional rights should be defined according to abstract philosophical inquiry, quite independently of the actual impact that the exercise of those rights would have on society.

Now consider another fact-based foundation for the Florida myth. The electoral college votes from Florida were credited to Mr. Bush after the U.S. Supreme Court rejected the arguments of Mr. Gore’s lawyers. Those arguments were forcefully made and, as many law professors have since written, the Court may have been wrong in rejecting them. But all controversial cases involve the rejection of strong argument. In any event, it now appears that Mr. Gore would have lost even if his arguments had been accepted. To what kind of mind is it an injustice that an argument is rejected even if that argument could not have changed anything? Put another way, to what kind of mind does the making of an argument in itself have urgent moral force?

The answer is that it matters to a person trained to spend a lifetime making arguments. Every day in law school, thousands of students are asked to fashion legal arguments on the spot. In theory, the point of this exercise is for subsequent questioning to reveal to students potential weaknesses in their positions. But this so-called Socratic method inevitably teaches a different lesson as well. As students watch each other struggle to avoid intellectual embarrassment or defeat, they learn to admire the capacity to argue for its own sake. In recent years this implicit lesson has become more powerful because standards of political correctness and the right of students evaluate their teachers make it difficult for professors to ask the kinds of follow-up questions that might lead to real insight and growth. As a result, the tendency to invest argumentation with moral status increasingly lacks humility or self-doubt.

Legal education shapes lawyers’ thinking, and lawyers help to shape American culture—particularly the political culture. Unfortunately, this education breeds and dignifies some dangerous inclinations. It encourages people to favor constructed idealizations over real life. And it confuses the skill of argumentation with morality. The legions of lawyers encamped across the country to litigate their way to political victory are the embodiment of a more insidious process—the penetration of our society by a relentlessly adversarial mindset, one that is entirely ready to make our democracy unworkable.

List of all law schools in each state

http://www.allaboutcollege.com/gradschools/usa/law/law.htm



Practical training in law school

In Shakespeare's Henry VI, a character suggests, "The first thing we do, let's kill all the lawyers." I wouldn't go that far, but there's no denying that the number of lawyers in society is excessive.

Take politics, for example. Canadian politicians, particularly at the provincial and federal levels, are mostly trained as lawyers. The situation is similar in the U.S. and in Europe, where a law degree is often the tepid first step toward a career in public service.

What would happen, I wonder, if this were not the case? How different would the world be if lawyers were not the ones in charge?

The question is interesting because one can hardly imagine how things could be worse. Government institutions have never been models of cooperation and efficiency. As for our courts, just ask those individuals now being released from Canadian and US prisons after DNA testing has shown them to be innocent to define the word "justice."

There's at least a possibility that many of our failures in the political arena are attributable to lawyers and their intensive formal training in a mode of thinking that might be called the legal turn of mind.

Lawyers would be the first to admit that they don't think and act like the rest of us (or, put another way, that they think and act like the rest of us but only one heck of a lot more so). In his popular book, The Greening of America, published in 1970, lawyer and Yale Law School professor Charles Reich shed light on the legal turn of mind with this description of the typical law-school experience:

"[Students soon] discover that they're expected to become argumentative personalities who listen to what someone else is saying only for the purpose of disagreeing. [They become] analytic rather than receptive people, who dominate information rather than respond to it, [as well as] intensely competitive and self-assertive. Since many of them are not this sort of personality before they start law school, they react initially with anger and despair, and later with resignation...In a very real sense, they become stupider during law school, as the range of their imagination is limited, their ability to respond with sensitivity and to receive impressions is reduced, and the scope of their reading and thinking is progressively narrowed."

Thus trained to be argumentative, domineering personalities, many young men and women who become lawyers develop a basic orientation to life wherein their stated or tacit objective is nearly always to win.

Most individuals reshaped in this Me-versus-You / Us-versus-Them adversarial mold believe that anything done to gain and hold the upper hand is not only okay, it's absolutely central to survival and success. Moral boundaries and ethical principles come into play only insofar as they don't impede or prevent one from coming out on top. Lying, cheating, and stealing are eschewed in theory but remain viable tactics in practice, i.e., means to an end.

An orientation toward opposition and winning (as opposed to conciliation and compromise) is far from all there is to it. Those imbued with the legal turn of mind tend as well to be poor listeners, highly opinionated, righteous, arrogant, and harshly judgmental.

They often talk in terms of polar opposites and absolutes: 100% black vs. 100% white, 100% right vs. 100% wrong, 100% guilty vs. 100% innocent, and with the conviction that meanings of words reside in the words themselves.

(Words, in fact, are symbolic utterances whose meanings reside in the minds of those making them. Meanings of words evolve over time. Anyone who believes otherwise, or who thinks dictionaries contain "real" meanings of words, should try to explain why there are numerous dictionaries in most languages, and why dictionaries are constantly being updated.)

It's a small step from here to the I-know-better-than-you-about-everything syndrome. Undoubtedly there are lawyers with humility who understand that expertise in law and lawyering does not give them God-like powers of perception and insight. Perhaps, because of how much money they earn or how much power they wield, many seem to believe the reverse. Like the brash cow-girl Annie Oakley in the Broadway musical, Annie Get Your Gun, their refrain seems to be: "Anything you can do, I can do better...I can do anything better than you!"A political landscape peopled by fewer lawyers wouldn't necessarily foster a Utopia. It would, however, fashion a better world in one sense. Our dukes would be down. In doing a lot less talking and a lot more listening.

The pomposity, the obfuscation, the grandstanding, the confrontational stances, the incessant verbal sparring and meaningless debate that characterize public discourse would very likely begin to dissipate like the dew in the morn. And in the calm and quiet of the New Day, we may realize that the other person's ideas and opinions aren't actually that far-fetched or different from our own.

Paul Globus is a freelance writer and musician living and working in Montreal, Canada

A license to practice law is no guarantee of legal knowledge, skill or experience. Incompetent lawyers regularly mislead and defraud clients who rely on the promise of expertise that the lawyer label brings.

People who go to lawyers have the right to expect what they pay for: competent legal advice. But as many clients discover, a license to practice law is no promise of knowledge of a particular legal area. Even worse, some clients never discover that they got faulty advice or representation and that shoddy lawyering may have cost them important rights–and their savings.

According to state bar associations (the lawyers' groups who hand out law licenses), aspiring lawyers undergo rigorous training and pass a tough exam before being loosed on the public. Only these specially-trained people, according to the bar, can cope with the complexities of our legal system.

In fact, most law schools teach little about how the law actually works or about how to deal with clients or courts. Instead, schools concentrate on the decisions of appeals courts and legal history and theory. That bears little relation to why most people hire lawyers. People need lawyers who can consult and interpret the relevant laws, advise on possible courses of action and prepare the right paperwork.

The bar exam is even more out of touch. The day-to-day skills lawyers are commonly believed to possess–research, writing, counseling clients, dealing with courts, mastering a wide variety of basic legal concepts–are not tested. Fledgling lawyers are expected to pick up these skills after they have their licenses, giving a disturbing meaning to the expression "practicing law."

Once they hurdle the bar exam, lawyers are never tested again. Some states require lawyers to take continuing education classes, but these requirements are minimal. In many states, lawyers may even get credit for watching videotapes on how to build their own self-esteem, relax and avoid alcoholism.

But what is most outrageous about licenses to practice law is their breadth. They give lawyers the right to take on any kind of case, from divorce to murder to zoning. Any lawyer is free to list any number of alleged specialties in a Yellow Pages ad or on a business card, even if he or she has no experience in that area of law.

The present licensure system—inadequate as it is for consumers with little experience in hiring lawyers—works well enough when it comes to lawyers who work directly for large corporations or the elite law firms that represent them. These sophisticated consumers have many ways to evaluate their hired legal hands beyond whether or not they passed a particular state's bar exam. But sadly, the fact that the rich and powerful are much less at risk of inadequate lawyering than the rest of us also means that they care little about changing the present system.

What to Do

When it comes to lawyers who sell personal legal services, a lawyer's license should be limited to specific subject areas—for example, family law, criminal law, tax or probate. A separate exam should be given for each specialty. That way, an exam could test the skills and knowledge needed by a lawyer who wants to represent clients in a particular legal subject area.

Like pilots who must have a license for each type of aircraft they want to fly, law school graduates could take as many of the exams and amass as many of the specialized licenses as they wanted. People hiring a lawyer would then have a much better idea of what kind of expertise they were getting.

Several other reforms would complement this fundamental change in lawyer licensing:

Law schools should offer more practical courses, including trial practice, client counseling and other subjects that directly pertain to law practice.

Before new lawyers who will represent consumers are licensed and turned out into the community, they should be required to have practical experience in all specialties they have chosen. Apprenticeship programs should require structured supervision from a lawyer who has a license in the specialty and experience in specific, practical areas of the field. But these programs should be carefully monitored to be sure they provide real learning and don't just end up being a cheap labor supply for established lawyers. After the apprenticeship period, the new lawyer would be eligible to take the exam to get a license in that specialty.

Testing on substantive law and procedure should continue as long as a lawyer practices. As it is, people are periodically re-tested before renewing their driver's licenses, but a lawyer's license is good for life. It is taken away only if the worst misconduct can be proven—a rare event.

Thinking like a lawyer

Various scholars have studied the effect of law school training on individuals. It seems that in general professional education and socialization into a profession affect how individuals understand the world around them. Geison (1983) talks of professions and professionals taking on a "professional ideology and rhetoric" that shape the way individual members of the profession understand their world. Moore and Rosenblum (1970) note that professional socialization involves noticeable changes in the individual in order for that person to become a part of the closed professional fraternity. As two other scholars note, "Professional schools are highly invasive institutions which exert intense control by purposely influencing beliefs, values and personality characteristics of students; and law schools appear to be the most invasive among all graduate education" (Shanfield and Benjamin 1985: 65).

In other words, professional training produces changes in individuals which stay with them throughout their subsequent careers. Larson (1977) argues that the self-esteem of individuals is tied directly to their professional self-image, and that professional socialization affects the individual's long-term personality and behavior. This scholar concludes, "The heavy investment of time, energy, and money that most professions require...effects a particularly strong identification of the person with the role, both subjectively and for others; you cannot really unfrock a priest, unmake a doctor, or disbar a lawyer" (Larson 1977: 229).

American lawyer-politicians may share a common approach to the world because American legal training is very similar regardless of the law school attended (see Thorne 1973: 152; Hegland 1983: 3). As Thorne argues, "Law schools have developed a distinctive subculture, a set of rituals and experiences which serve as much to initiate and haze as to teach recruits the skills and knowledge of the profession" (1973: 155). Several scholars have examined attitudinal changes in individuals that occur during law school (see e.g., Warkow and Zelan 1965; Stevens 1973; Rathjen 1976; Carrington and Conley 1977; Erlanger and Klegon 1978; Himmelstein 1978; Hedegaard 1979; Auerbach 1984; Elkins 1985; Granfield 1991). Thus law schools can produce dramatic changes in the ways individuals think and view the world around them.

One of the chief goals of American law schools is to teach students to "think like a lawyer" (see Erlanger One of the chief goals of American law schools is to teach students to "think like a lawyer" (see Erlanger and Klegon 1978; Bell 1989; Moll 1990; Wice 1991). What does "thinking like a lawyer" mean? Turow's (1977) now classic book, One L, gives a detailed explanation of the many changes that occur in an individual during the first year of law school. Regarding learning to think like a lawyer, Turow quotes a friend as saying:

"They're turning me into someone else," she said, referring to our professors. "They're making me different." I told her that was called education and she told me, quite tightly, that I was being flip. "It's someone I don't want to be," she said. "Don't you get the feeling all the time that you're being indoctrinated?" (Turow 1977: 83).

Turow continues his contemplations on "thinking like a lawyer" by saying:

There was a sort of mood to legal thinking which I found plainly unattractive . . . Thinking like a lawyer involved being suspicious and distrustful. You reevaluated statements, inferred from silences, looked for loopholes and ambiguities. You did everything but take a statement at face value . . . What that all showed me was that the law as a way of looking at the world and my own more personal way of seeing things could not be thoroughly meshed; that at some point, somehow, I would have to learn those habits of mind (Turow 1977: 85-86).

Lawyers love certainty. That’s what they teach them in law school. So they get jobs with government and start pouring out the regulations so everybody knows exactly what’s expected of them at any moment in their lives. And we pay billions of dollars trying to comply.

Moral training in law school


We have the wrong idea of law. Law is not supposed to avoid values of right and wrong, but to assert and affirm those values.

Law schools generally do not reach out to the wider university of such courses as “ethics” or “history of legal systems” or “ the philosophy of legal systems”; formal legal ethics standards have been 'dumbed down' over the years, eliminating words like 'right' and 'wrong' and making moral considerations optional.

Most people leave law school morally worse than when they entered. When they enter law school, most students think in terms of right or wrong. In law school they are taught to reject such thinking and to think only in terms of legal and illegal. This transformation of morals into legal categories, reinforced most especially in trial law, and particularly among criminal defense lawyers, explains the proliferation of amoral lawyers and the destructive role many trial lawyers play in our society.

Throughout my professional life, American legal education has been ruled by theories like positivism the residue or legal realism, critical legal studies, post-modernism and other philosophical fashions. Each of these theories has a lot to say about the “is” of law, but none of them addresses the “ought,” the moral foundation or directions of law.

The ordinary religion of the law school classroom is a moral relativism tending toward nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, an individualism tending toward atomism, and a faith in reason and democratic processes tending toward mere credulity and idolatry.

But many argue that the training of logical mind that a law school gives is worthwhile in any field. This may be so if it were not at the expense of losing ones sense of right and wrong in the process. Law schools train students to become amoral, to be able to argue with equal forcefulness both sides of an issue. And as an intellectual experience this may have value. But it comes at a price. When in a courtroom one side of an issue is factual, when one argues the other side he can succeed only by skillful lying about the facts and the law.

And in a very recent poll by the Gallup Organization nurses, grade school teachers and military officers were rated by 72% to 73% of those surveyed to have a high or very high level of trust. Lawyers together with members of congress and business executives were at the bottom with 18% to 20%. Since congress is made up 42% of lawyers and since 25% of the chief executives of major corporations are lawyers the public’s opinion of all of them should be no surprise.



Reduce the number of law school students. . .

by eliminating the public subsidy of law schools

by allowing individuals to obtain a legal education at other than a law school

Instead of mandating a law school education as the sole means of entrance into the legal services market, the state should establish voluntary certification programs in common legal fields and allow people who want to earn that certification to take the exam without regard to the means by which they learned the subject.

http://www.johnlocke.org/agenda2002/legal reform.html



by discouraging young people from going to law school

Tell parents this: “Do not send your son or daughter to law school. You will have spent many years teaching your children the difference between right and wrong and then when they enter law school it will teach them there is no right or wrong only legal and illegal. And they will be taught that their job is manipulate the laws for their clients benefit whether the process is right or wrong or the law is right or wrong.”



And then . . there would be benefits:

There would be fewer lawyer/lobbyists for their profession.

Our economy would be more productive as the three years spent in law school would be spent on something else—anything else—which would add more value to our society.

Government growth would be reduced. Since government is major source of employment for lawyers and lobbyists there would be less pressure from outside to create positions for their brethren inside the government.

People would spend more time helping each other as there would be fewer lawyers saying “sic em” to their fellow man.



But still . . . we recognize . . .

that there are lawyers employed in different specialties that have different levels of morality. Intellectual property lawyers probably have the highest level as they are protecting property rather than trying to take it. And there are transaction lawyers who try to protect their clients in honest business dealings against unscrupulous clients and their lawyers.

at the bottom of the heap are trial lawyers where a premium is paid for the services of those who can creatively lie and unfairly manipulate procedures to achieve their results. It is no accident that morally challenged trial lawyers show their stripes by giving over 80% of their contributions to the party which supports gay marriage, partial birth abortion and loves Bill and Hillary Clinton.



And yet still . . . admiration would be due . . .

to those who get thru law school with their integrity intact.

to those who achieve elective office as lawyers with their integrity intact.

to those who believe their mission as lawyers is to achieve justice in a courtroom.