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The State of T he Profession:Is There a There There?

B y Thomas J. M cDennott, Jr.

I'sin a quantum state. Like Schro-dinger's cat, when you determine it ishere, then it is there. The profession iseverywhere and nowhere. And, perhaps likeGertrude Stein's turn-of-the-century Oak-land, there isn't even a there there.Let's look at the profession overall first,then some of its parts. The profession is lawand the purpose of law is stability, nothingmore. The purpose is not "justice" as peopleare so fond of saying today. "Justice" is a. political concept and what is justice in a soci-ety can only be arrived at by consensus ofthe society's population, which is a politicalprocess.A purpose of law may well be to preservejustice, but that is a far different processthan creating justice. Given a law by society,the courts are supposed to implement it asclose as possible to its enactors' intent andthereafter to maintain that interpretation.The latter used to be called "the doctrineof stare decisis," a concept younger lawyersmay not be familiar with. It meant that earli-er decisions were to be followed, not rea-soned around or dodged or ignored. It gave astability to the law and allowed the populaceto govern itself accordingly. In other words,

guideposts were in place and with reasonableapplication, a lawyer could tell his or herclient what the law was. The lawyer whopurports to tell his or her client what the lawis today is guilty of malpractice. (The readerhas realized by now that this is a polemic:those who abhor polemics are excused.)Tocqueville noted in his unique andinsightful Democracu In America:"The more we reflect upon all that occursin the United States, the more we shall bepersuaded that the lawyers, as a body, formthe most powerful, if not the only, counter-poise to the democratic element." This quotecomes in the portion of his book entitled"Mitigations Of The Tyranny Of The Major-ity." Keep in mind that Tocqueville felt thatmajority rule, unchecked, could destroy asociety. He found that lawyers were thatcheck or "counterpoise." He further foundthat this was primarily because of the Britishand American doctrine of stare decisis. It is

Thomas J McDermott, Jr., the 1993-94 Chairoj the Litigation Section, practices withManatt, Phelps &Phillips in LosAngeles.

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this power of precedent, generally unavail-able to the intelligent layperson, that gavethe lawyer his power and allowed him to bethe balance to the "majesty" which inAmerica had moved from the sole sovereignto the mass rule. He believed that the"tyranny of the majority" in the United Statescould be so pervasive and invasive that itscitizens would not stand for it were it not forthe balance provided by the doctrine of staredecisis and the legal profession.Stare decisis is gone, the balance is dete-riorating and the public is in revolt againstlaw and lawyers.- The Courts -In the American system, the courts weresupposed to adjudicate first, enforce secondand legislate never. Today, this is turned onits head. They now legislate first, enforcesecond and adjudicate sometimes, althoughmost of this dull stuff is being shuffled off toa new "court" system called ADR.Keep in mind that every time any court,trial or appellate, decides a case based on its"gut" reaction, usually excused as an attempt

to "do justice" in a "recognizably unique situ-ation" (which it seldom is), that court is leg-islating. If you don't take the facts and applythem to past precedent or to statutory mean-ing or history, you are legislating. Thismeans new law, new "precedent," somethingthat "advances" the law but in reality confus-es it for those who must followbehind.The ultimate result is that lawyers realizethey can legislate, get around precedent andstatutes, create new "precedent" in the inter-ests of their current client, and they do it.Don't blame the lawyers. It's always beentheir job to advocate a position, no matterhow unpopular that position may be. Thefailure to do so today, the failure to createnew and novel theories and offer them up inthe guise of "justice in this particular factpattern" would be wrong.

Of course, the lawyer does have a respon-sibility to society in general and to the legalsystem in particular. How does he or sheresolve the conflict between these responsi-bilities and the responsibility to the client tobe "imaginative?" I don't have the answer.When I started to practice it was possible tolook a client in the eye and say "you have noclaim" or "you have no defense." Youwouldnot do so today because you know that thereare no absolutes.And we wonder why there has been sucha surge in litigation.

, D oesn 't th is create atwo -tie red s ystem ofcourts .one for the richand one for the rest? '

- The Judges -Is your judge there on the bench or outJAMin'?If you're a civil trial lawyer and you'venever had a case "referenced" out to a pri-vate jurist, you've got a weak practice.This business of having an "alternative"

judge make the decisions (even the termreeks of quantum theory, as in an "alternate"universe) may work out well or it may not:the jury's still out. (Indeed, juries may be lit-erally out soon). The point is, it's change,rapid and radical change. For a change ofsignificance to be successful, it must be

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planned, tested, continually revised and thenimplemented with some consistency. Haveany of these processes been applied to judi-cial reference or do they just "happen" whenthe judge is so busy he or she can't cope? Asofnow, there appears to be no there there.How does the system justify passing thecosts of these references on to the public?How can the system justify assigning thesereferences only for the affluent, the onlyones able to finance them? Doesn't this cre-ate a two-tiered system of courts, one for therich and one for the rest?-The Lawyers-I've scolded the lawyers enough supra (aswe like to say when we don't want lay peopleto know what we're talking about), but I willnote one additional teeny, tiny little issue:money. Did you know that trial lawyers gavemore money to politicians in 1995 than any-one? Trial lawyers gave over eight milliondollars at the federal level while tobaccocompanies gave three million dollars, oil andgas companies gave almost three million dol-lars and automakers gave less than one mil-lion dollars. Did you know that ten triallawyers gave roughly eight million dollars topoliticians from 1989 through 1995?It doesn't astound me that they were try-ing to influence legislation-that's old hat.What astounds me is that they could earn somuch money that they could give this muchaway.When I started practicing in the 1950's, Iwas continually taught that the word "profes-sional" meant a person who put his or hercontribution to humanity above pecuniarygain: doctors, teachers, writers, priests, min-

isters, rabbis, and lawyers. In the late 1960's,a movie was released called "The Profes-sionals." The title referred to people whokilled in exchange for high pay. Moviesreflect the culture. We are not masking ourrole to the public when we refer to ourselves

as "professionals." I'm afraid they're on to us.They believe there's no there there exceptmoney.

, The very concepts ofl aw are con temp la ti on ,s tr uc tu re , p a st p ra ctic e,gu idance , s tab il it yand m odesty. '

- AnApologia-Now that I've bashed everyone and every-thing, it's time for an apologia and a plea.I don't demean the court system, thejudges or the lawyers. Change is inevitable.But law is not technology. Law is not drivenforward at breakneck speed by an implacableand uncontrollable force. The very conceptsof law are contemplation, structure, pastpractice, guidance, stability and modesty.That's where justice comes from. It comesfrom knowing what society permits, anddoes not permit, you to do, and how societyimposes its will on you, so that you can con-duct yourself appropriately.Once the law becomes unpredictable and

its procedures become imprecise, oncemoney is the only driving force, the compassrequired for right conduct is lost. As youlook around without your compass and won-der where you are, you're tempted to thinkthere may be no there there .

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