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.