Lawyers, Gums, and Rummies

Why do we hate attorneys?

Walter Olson from the July 1999 issue

(Page 2 of 2)

We have liberalized procedure. As long ago as the 1930s we began to embrace the system of notice pleading, in which you can drag someone to court without saying what he may have done wrong. In the 1970s we drastically liberalized discovery, making it far easier to demand your opponent's filing cabinets. We liberalized forum shopping to make it easier to look around for a judge or jurisdiction hostile to your opponent or slanted toward your own ideological view. And we liberalized the admission of expert evidence to allow more testimony from hired experts outside the mainstream thinking of their discipline, thus giving lawyers more chances to keep weak cases alive.

And so on. At the same time, we were throwing out the old legal ethics books in search of a new role for attorneys in society. Lawyers had traditionally been seen as quasi-deputized officers of the court, with whose unusual power to wield compulsory process came responsibilities to refrain from many steps that advanced the interests of their clients but not those of justice. Now we have swung toward the contrasting ideal of zealous representation, red in tooth and claw, to the point where many authorities, including some legal ethics professors, dismiss as outmoded lawyers' obligation to avoid misleading a judge or jury or inflicting tactical harm on an opponent's pocketbook or reputation.

We have drastically liberalized lawyers' rights to take a share in the claims they sue over, starting with the plaintiff's contingency fee but increasingly also through contingency arrangements in defense and transactional work. Rather than having them get along on boring old hourly fees, we now encourage them to get rich overnight if they obtain an unusually good result, and go hungry if they obtain an unusually bad one. By making the outcome one of feast or famine rather than more or some, we hyper-incentivize lawyers to do what it takes to win, though many of those things are far from attractive. And we've also drastically liberalized the scope for class actions, citizen suits, and other proceedings which encourage a lawyer to sue with no real clients.

Behind all these trends is a unified view of litigation as basically a good thing to be encouraged, since the more lawsuits go forward, the more justice we'll supposedly see done.

The result has been not simply to encourage destructive wrangling but also to ensure that lawyers have more power to ruin your life in America than they do in any other advanced country. In no other major democracy can a freebooting lawyer show up, dump a pile of papers on your front lawn, tie you up for years, inflict untold damage to your business and reputation, and then walk away with hardly any consequences if he is proven wrong. Lawyers, I submit, are so widely disliked in this country because they are so very widely, and correctly, feared for the power without responsibility they wield.

So here is a question for the bar associations: Is the current state of your profession misunderstood? Or understood too well?

Contributing Editor Walter Olson is a senior fellow at the Manhattan Institute and author of The Litigation Explosion(www.walterolson.com/litexpl.html), and edits the new Web site Overlawyered.com. This column is adapted from a speech he delivered to the Federalist Society's National Lawyers Convention.

Comments

nfl jerseys|11.15.10 @ 2:50AM|#

jtyhdtg

log in or register to reply