A Defense of the Indefensible

What's black and brown and looks good on a lawyer? A Doberman. Lawyer-bashing jokes have always been around. This one happens to be printable. Many of them aren't.

But this year, lawyers have received special attention. President Bush and Dan Quayle have made lawyer-bashing a central component of their campaigns for reelection. Bush assailed "tasseled loafer-wearing" lawyers in his acceptance speech in Houston. And Quayle has blasted Arkansas Gov. Bill Clinton for being "in the pocket of the trial lawyers."

Sensing a general public resentment, Bush and Quayle, in a breathtakingly cynical move, are now baying for legal reform and all but calling for lawyers to be placed in pillories and whipped. Quayle especially has embraced this new mission with unseemly alacrity, apparently immune to the inherent ironies in his position as a lawyer and a lawyer's husband.

Even some less demagogic observers have begun to attack the profession. Thursday's Wall Street Journal, for example, in its tepid endorsement of the president, said "containing the plaintiff bar would do more for the American economic performance than all of the infrastructure Bill Clinton proposes to build."

Needless to say, these are difficult psychic and economic times for the legal profession and its practitioners. The anti-lawyer diatribes seem to have found a receptive audience in the general public, while the substantial contribution of lawyers to society (especially corporate lawyers) is conveniently ignored, lost in a flurry of witless one liners and politically inspired attacks of dubious veracity.

And the profession seems to be tearing itself apart from within, divided by an ideological dichotomy between conservatives and critical legal studies proponents about the function of lawyers. This has spilled out for public debate in a less academic form: At stake is whether lawyers are compelled to be fiery crusaders in the fight for truth, justice and the American Way, or are mere functionaries in a corporate milieu.

Thurgood Marshall, meet your nemesis, Corporate Lawyer.

But we shouldn't discount the contributions of lawyers. Most of those on the political left who defend the profession point to public-interest law as its saving grace. For the left, corporate law seems to be nearly indefensible.

But the challenge to corporate law is important. Corporate lawyers must devise constraints needed to temper the excesses of rampant capitalism, a task of profound public service. Corporate lawyers, for example, perform most of the pro bono work in this country.

The business of corporate law--its transactional, almost sterile nature--does not lend itself to glamorization. The 30 percent of lawyers who practice public interest law (government and not-for profit work) are often more visible. Issues which inhabit the moral high ground, such as the preservation of constitutional liberties, are often more immediate and personally relevant to the public.

This isn't to say that corporate law as a profession has no excesses. Professor of Law Detlev Vagts points to the Union Carbide disaster in Bhopal as one of the worst. Hundreds of American lawyers descended on the city in an appalling display of venality.

But even with such excesses, current ideas for reform go too far. The Bush administration, charging that American society has become too litigious (this in spit of a downward swing in litigation since 1985), has called for a drastic overhaul of the civil justice system.

Bush and Quayle claim that its inefficiencies and skyrocketing costs are impinging negatively on the economy. They claim(with unbuttressed statistics) that Americans spend more than $80 billion a year on direct litigation costs and $300 billion in indirect costs, which include the expense of avoiding liability.

Suggestions for reform include the attachment of specific dollar amounts to jury awards, the curtailing of punitive damages and the adoption of the English rule (by which the losing party pays all costs).

In the zeal for institutional reform, two major issues remain unaddressed--access to courts and the correct assignation of blame. In an increasingly mobile post-industrial society, there is a ubiquity of harm. The safety nets traditionally provided by family and neighborhood have been diminished to a substantial degree. The sole means of redressing grievances and for establishing a proper standard of care lies with the courts.

Yes, juries may occasionally award large sums of money to grievously injured, sympathetic plaintiffs. But what about the thousands of victims who sue and receive nothing? If anything, the U.S. needs to liberalize access to the courts for people with legitimate grievances. Access to justice is a fundamental part of any democracy. Inequities of access may be counteracted by the contingency fee system (by which a lawyer receives compensation only from a jury's reward--not from a losing plaintiff) and by the utilization of lawyers who do pro bono work (free legal service).

Pro bono responsibilities, in fact, are acknowledged as being important and are formally codified in the American Bar Association's Rules of Professional Conduct.

The practice of law is a demanding and honorable profession. It offers challenging opportunities in a wide range of substantive areas. It attracts a talented, diverse group of people. Each profession has its misfits, and the law is no exception. But the actions of some should not taint all.

Navigating the complexities of modern life often requires the expert guidance of lawyer. Admittedly, there is a need for some cost-sensitive alternatives to resolving disputes. We should, however, step back from the divisive rhetoric and examine the facts.

And finally, we need to stop misquoting Shakespeare. Yes, he did write "First thing we do, let's kill all the lawyers." But this exhortation, when read in context, reveals that Shakespeare actually wrote this as a defense of lawyers, whom he thought defended society against tyranny and widespread anarchy.

Lorraine A. Lezama, a contributing writer for the Opinion page, plans to join the ranks of the despised profession. She's been reading a lot of de Tocqueville lately.