is there a there there0001

8/14/2019 Is There a There There0001

1/5

The State of The Profession: Is There a There There?By Thomas J. McDermott, Jr.

It's in a quantum state. Like Schrodinger's cat, when you determine it is here, thenit is there. The profession is everywhere and nowhere. And, perhaps like Gertrude Stein's turn-of-the-century Oakland, there isn't even a there there.

Let's look at the profession over all first, then some of its parts. The profession islaw and the purpose oflaw is stability, nothing more. The purpose is not "justice" as people areso fond of saying today. "Justice" is a political concept and what is justice in a society can onlybe arrived at by consensus of the society's population, which is a political process.

A purpose of law may well be to preserve justice, but that is a far different processthan creating justice. Given a law of society, the courts are suppose to implement it as close aspossible to its enactors intent and thereafter to maintain that interpretation.

The latter used to be called "the doctrine of stare decisis," a concept youngerlawyers may not be familiar with. It meant that earlier decisions were to be followed, notreasoned around or dodged or ignored. It gave a stability to the law and allowed the populace togovern itself accordingly. In other words, guideposts were in place and with reasonable

I

application, a lawyer could tell his or her client what the law was. The lawyer who purports totell his or her client what the law is today is guilty of malpractice. (The reader has realized by

now that this is a polemic; those who abhor polemics are excused. This doesn't get any better.)Tocqueville noted in his unique and insightful Democracy In America:

B:\STATPR01.ART\111596\1346 1


2/5

"The more we reflect upon all that occurs in the United States, the more we shallbe persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise tothe democratic element." This quote comes in the portion of his book entitled "Mitigations OfThe Tyranny Of The Majority." Keep in mind that Tocqueville felt that majority rule,unchecked, could destroy a society. He found that lawyers were that check or "counterpoise."He further found that this was primarily because of the British and American doctrine of staredecisis. It is this power of precedence, generally unavailable to the intelligent lay person, thatgave the lawyer his power and allowed him to be the balance to the "majesty" which in Americahad moved from the sole sovereign to the mass rule. He believed that the "tyranny of themajority" in the United States could be so pervasive and invasive that its citizens would not standfor it were it not for the balance provided by the doctrine of stare decisis and the legal profession.

Stare decisis is gone, the balance is deteriorating and the public is in revolt againstlaw and lawyers.

The Courts

In the American system, the courts were supposed to adjudicate first, enforcesecond and legislate never. This is turned on its head. They now legislate first, enforce second

/and adjudicate sometimes although most of this dull stuff is being shuffled off to a new "court"system called ADR.

Keep in mind that every time any court, trial or appellate, decides a case based onits "gut" reaction, usually excused as an attempt to "do justice" in a "recognizably uniquesituation" (which it seldom is), that court is legislating. If you don't take the facts and applyB:\STATPR01.ART\111596\1346 2


3/5

them to past precedent or to statutory meaning or history, you are legislating. This means newlaw, new "precedent," something that "advances" the law but in reality that confuses it for thosewho must follow behind.

The ultimate result is that lawyers realize they can legislate; get around precedentand statutes, create new "precedent" in the interests of their current client, and they do it. Don'tblame the lawyers. It's always been their job to advocate a position, no matter how dismal thatposition may be. The failure to do so today, the failure to create new and novel theories and offerthem up in the guise of "justice in this particular fact pattern" would be wrong.

Of course, the lawyer does have a responsibility to society in general and to thelegal system in particular. How does he or she resolve the conflict between these responsibilitiesand the responsibility to the client to be "imaginative?" I don't have the answer. When I startedto practice it was possible to look a client in the eye and say "you have no claim" or "you have nodefense." You would not do so today because you know that there's no absolute there there.

And we wonder why there has been such a surge in litigation.The Judges

Is your judge there on the bench or out JAMin'?If you're a civil trial lawyer and you've never had a case "referenced" out to a

private jurist, you've got a weak practice.This business of having an "alternative" judge make the decisions (even the term

reeks of quantum theory, as in an "alternate" universe) may work out well or it may not: thejury's still out. (Indeed, juries may be literally out soon). The point is, it's change, rapid andradical change. For a change of significance to be successful, it must be planned, tested,B:\STATPR01.ART\111596\1346 3


4/5

continually revised and then implemented with some consistency. Have any of these processesbeen applied to judicial reference or do they just "happen" when the judge is so busy he or shecan't cope? As of now, there appears to be no there there.

How does the system justify passing the costs of these references on to the public?How can the system justify assigning these references only for the affluent, the only ones able tofinance them? Doesn't this create a two-tiered system of courts, one for the rich and one for therest?

The LawyersI've scolded the lawyers enough supra (as we like to say when we don't want lay

people to know what we're talking about), but I will note one additional teeny, tiny little issue:money. Did you know that trial lawyers gave more money to politicians in 1995 than anyone?Trial lawyers gave over $8 million dollars at the federal level while tobacco companies gave $3million dollars, oil and gas companies gave almost $3 million dollars and automakers gave lessthan $1 million dollars. Did you know that ten trial lawyers gave roughly $8 million dollars topoliticians from 1989 through 1995?

It doesn't astound me that they were trying to influence legislation=that's old hat.What astounds me is that they could earn so much money that they could give this much away.

When I started practicing in the 50's, I was continually taught that the word"professional" meant a person who put his or her contribution to humanity above pecuniary gain:doctors, teachers, writers, priests, ministers and rabbis, lawyers. In the late 60's, a movie wasreleased called "The Professionals." The title referred to people who killed in exchange for highB:\STATPR01.ARn111596\1346 4


5/5

pay. Movies reflect the culture. Weare not masking our role to the public when we refer toourselves as "professionals." I'm afraid they're on to us. They believe there's no there thereexcept money.

An ApologiaNow that I've bashed everyone and everything, it's time for an apologia and a

plea.I don't demean the court system, the judges or the lawyers. Change is inevitable.

But law is not technology. Law is not driven forward at breakneck speed by an implacable anduncontrollable force. The very concepts of law are contemplation, structure, past practice,guidance, stability and modesty. That's where justice comes from. It comes from knowing whatsociety permits, and does not permit, you to do, and how society imposes its will on you, so thatyou can conduct yourself appropriately.

Once the law becomes unpredictable and its procedures become imprecise, oncemoney is the only driving force, the compass required for right conduct is lost. As you lookaround without your compass and wonder where you are, you're tempted to think there may beno there there.B:\STATPR01.ART

B:\STATPR01.ART\111596\1346 5

is there a there there0001

Documents