Living with the law

There’s a good nature-vs.-nurture discussion going on over at Oklahomeless about the problem of the lawyer personality. Namely, Goldie wondered whether the profession attracts anti-social miscreants, or transforms otherwise decent, conscientious people into the argumentative, ass-clown caricature that populates the collective consciousness when people hear the word “lawyer.”

When I started applying to law schools, I liked to joke that I was going to single-handedly solve the legal industry’s P.R. problems by not falling prey to those forces that reduce young idealists to grizzled, cynical misanthropes and soulless corporate stooges. Based on my experience last year, I get the feeling that a lot of my classmates had the same idea. Maybe my law school attracts a kinder, gentler sort. I figure I’m either incredibly lucky or naive, but I really didn’t see a lot of the stereotypical sharky-gunner mentality at my law school. It’s competitive, sure, but in a collegial way. I was more acutely aware of the curve during the second semester, but it certainly never prompted me or anybody I know to withhold help in studying or understanding the concepts. What it’s like at other law schools, I can only wonder, based on what I see in movies and T.V.

As I wrote on Goldie’s blog, I don’t think of myself as having a (stereo)typical lawyer temperament. My first year was a revelation in that regard, prompting no small amount of hand wringing as to whether I was really cut out for the lawyer life. I’m not especially adversarial or aggressive; but what worries me more is whether I can really develop the ability to 1) spot issues and 2) form a decent argument on the basis of something other than a vein throbbing in my temple.

I can honestly and happily say that, much as I’ve enjoyed shows like “L.A. Law” and “The Practice,” they didn’t really inform my desire to become a lawyer. I sure as hell didn’t decide to chuck my former career to live the “Law and Order” dream (dun-dun!!) If I had to attribute my “I’m going to get a JD and change the world” ambitions to a pop-culture influence, it would probably be “The West Wing,” along with the usual noble suspects like To Kill a Mockingbird and Inherit the Wind. In other words, role models with almost not basis in reality, if I’m to believe the accounts of “real-world” practice that are beginning to filter into my consciousness.

I actually like that the profession demands precision and ordered thought. My goal, once I master the basic process, is to be able to combine precise reasoning with the kind of pithy verve that makes for compelling, persuasive advocacy.

I can’t say that any of my first year classes or pro-bono experiences got me especially hot to specialize in tort, property, contracts, criminal or constitutional law. Coming to law school from advertising, though, I did have a vague interest in Intellectual Property. Then I read this. It’s basically a guy who, as it turns out, chucked his legal career to start an online audio/video cable concern. And when the big bad wolves at from Giganticorp started huffing and puffing, he called bullshit and told them, with badger-like verve and chutzpah, what they could do with their little licensing-fee shakedown. Reading the letter was intensely satisfying—like watching a couple of muggers getting their asses handed to them when the little dude they start hassling turns out to be Bruce Lee. Wa-Pow! Justice, baby. Come and get you some.

Here’s a taste:

I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.

I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court's attention upon the merits of your claims--or, to speak more precisely, the absence of merit from your claims--from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

In other words: Bring it, bitches.

For me, this is the inspirational equal of any movie, book, or Cardozo opinion. It’s really the first thing I’ve come across that made me say that’s what I want to do; that’s the kind of lawyer I want to be. If I can do that as a lawyer, I’ll know I made the right decision. I find it particularly encouraging that this is a real-world legal confrontation, not something distilled into a casebook illustration.

I’m eager to know what you all think of it, lawyers and civilians. Actually, let me amend that: I’m eager to have my (quite possibly naïve) take on the situation validated. So if my lawyer friends or more astute classmates think this guy is just another part of the problem Goldie describes, all I ask is that you me down easy.

8 comments:

Snag said...

Forgive me the bandwidth.

It's no surprise to you, I'm sure, there different kinds of lawyers.

Some are in it for the money. Nothing wrong with that. Law's a business in addition to being a profession. It's a tough business, too, especially with the demands of the billable hour, as pernicious an idea as has entered the mind of man.

Some are in it to right wrongs or fight injustice. Nothing wrong with that, either. There are plenty of wrongs to right and injustices to fight.

Some are in it to help people accomplish their goals. Nothing wrong with that, assuming the goals aren't immoral on their own.

Most are in it for some combination of the above. Make some money, leave the world a slightly better place. For what it's worth, those are the ones I like and admire the most.

The older I get, the more respect I have for those lawyers who get up in the morning, kiss their families, help some people out during the day, and then return home to see their families and maybe help someone out as a lawyer, or as a friend or neighbor.

The older I get, the less respect I have for those lawyers who get up in the morning, ignore their families, scorch the earth during the day, and then return home to an empty house and don't do a damn thing for anyone else.

The best assignment I ever had in school was to write my own obituary. Over the next year or so, read those for the lawyers in your town and see how many focus on big cases or deals. Then see how many focus on family and friends and community.

Bet said...

You're an Atticus in the making, Mr Middlebrow.

oklahomeless said...

Something to keep in mind, my-pal-middlebrow: you're a forty-something fellow. You've had many years -- nay, decades -- to purge anti-social tendencies from your persona. Or maybe you were a nice guy to begin with. Still, you come to law school with perspective and experience -- characteristics, I fear, many incoming law students lack.

On a related note, maybe there's a difference between your Gen Y classmates and my Gen X ones. I couldn't do justice to this point in such a small space, but you must admit that "their" cohort is a bit ... different than ours (I'm older than you think).

Geography may also have something to do with it. Law school in genteel NC could very well be less aggressive than law school in ... tendentious Washington, DC. Think about the type of people who *want* to be in the center of power, and you've got a really big playpen full of tantrum-throwers.

tammara said...

I agree with all of the above, but especially with bet, because that character seems to embody what you want to be. If you wanted to be a selfish asshole instead of an optimistic wrong-righter, you sure could be. You just seem to be someone who prefers not to. And strangely enough, that conscious choice is pretty much all it takes to make a kinder, gentler human being - be you lawyer, baker, or candlestick maker.

Duke said...

Mr Middlebrow, here's a question:

You are defending a client who half way through the trial admits to you he is guilty. Guilty as hell. What would you do?

1) Go ahead and try to get him acquitted because that's your job and the procescution must prove him guilty. After all, you aren't the judge or jury. You are there to defend him. Everyone is innocent until facts show otherwise. It's the other sides job to prove his guilt. Everyone is entitled to the best representation they can have and you'll give it to him.

Or would you:

2) Refuse to participate in letting a guilty man go free. Agree to represent him as a guilty person but not an innocent plea.

If you tend to answer 1 then you'll end up like all the other lawyers. If you can sleep at night knowing you personally used your skills in law to free a guilty person to hurt and damage other innocent people then you'll have no more conscience than the thousands of others who got rich and built careers doing just that.

For the most part lawyers know if their clients are guilty. They still try to minimize the impact on them.

At any time 50% of the lawyers are representing the wrong side of the case. When you find yourself in that position can you walk away? If you worked for Monster Cable would you refuse to send out threats on IP litigation knowing they would fire you otherwise?

How you deal with those situations could well define how you turn out as a lawyer.

oklahomeless said...

Duke,

If you don't choose option number 1, then you've just acted in an unethical manner. As an attorney, you're wedded to the concept of due process no matter how odious the details. At the end of the day, everyone who finds himself before a state or federal court deserves representation.

Duke said...

oklahomeless, I never said the guilty person didn't deserve representation. The question is, do you lie to the court by pushing a not-guilty plea or stand up for the truth and represent him as guilty (which is what he is).

The whole point of our justice system should be justice. You don't have justice by intentionally twisting the situations of guilty people or being untruthful in a court of law.

I'm reminded of a case where a man went on a jewerly store robbing spree in 3 states. After he was caught his lawyers used every trick to twist facts and throw doubt on the case. As a result the man was only convicted on one charge for a short sentence. To show his gratitude he gave his lawyer a diamond he stole. The lawyer had it made into a ring and proudly wore it the rest of his life. To him it represented his superior skills in law. His victory over the other lawyers. A super Bowl ring in a court contest.

The lawyer knew the man was guilty all along yet got him off nearly scott free and was proud of it. There is nothing ethical in that. It's the opposite.

headbang8 said...

I really, really want to burn some bandwidth on a lengthy reply to you on this, Middlebrow. But I fear I can't spare the time to do it small-j justice right now. Hold that thought, and I'll get back to you.