“Life Without Lawyers”
PUBLISHED IN
THE NEW YORK REVIEW OF BOOKS, MAY 14, 2009:
“LIFE WITHOUT LAWYERS, AN EXCHANGE”
In re: Life Without Lawyers: Liberating Americans from Too Much Law,
by Philip K. Howard, reviewed by Anthony Lewis in “Shall We Get Rid of the
Lawyers?” NYRB, April 9, 2009
Philip K. Howard is one of a number of informed observers of the legal profession who have lamented what the practice of law has been doing to America for about the last 40 years.[1] But, while Anthony Lewis points out in his review the absence in Life Without Lawyers of an exploration of the “deeper social causes” of the excesses of American legal practice, neither Mr. Howard nor Mr. Lewis comes to terms with the root of a problem that has been escalating at least since 1977, when the U.S. Supreme Court decided Bates vs. State Bar of Arizona, 433 US 350, permitting lawyer advertising and converting what was once a “learned profession” into a competitive, high overhead business.
The deeper problem that accounts for the “excess of law” in the United States is the standard promotion, beginning in law school, of a war-making model of legal practice instead of a peacemaking, problem solving model; or what Anthony Kronman, Dean of Yale Law School called “the lawyer-statesman ideal” in his book, The Lost Lawyer: Failing Ideals of the Legal Profession, (Harvard U. Press, 1993). At its base, law is a social instrument for ordering and organizing human relations and resolving conflicts that arise within that organization. There is no necessity that its professional practitioners see themselves primarily as warriors rather than peacemakers and problem-solvers. In fact, it is well known that the vast majority of filed cases are settled outside the courts, and usually far from the courthouse door.[2] The arcane rules governing what lawyers call “discovery” not only increases the cost of legal services tremendously (nicely adding to lawyers’ income), but in most cases turn out to be wasteful diversions from what should be a prudent professional process to determine the facts and efficiently discover what the real issues are between the litigants, and then work out a resolution.[3]
The tragedy and scandal of American legal education is that it tutors idealistic law students to become sophistical, eristic war-makers through the study of appellate litigation for that small portion of matters that will bring them to court, instead of relying on a case method instructing them on how to reconcile opposing viewpoints and settle disputes without recourse to litigation. Law schools thus generally promote cashing in on conflict instead of serving clients’ best interests through skillful negotiation. “Fewer than five percent of American law schools require their students to take any course at all in negotiation. That means that American law students are permitted to spend three years of study learning how to be tough partisan advocates without having to take even one hour to learn skills of conciliation and settlement.”[4] (See Sheppard, “Cashing in on Conflict,” The Washington Post, June 5, 1996.)
The debate between an adversary model of legal practice, and what U.S. Supreme Court Justice Louis Brandeis referred to as serving as “counsel to the situation” before becoming an advocate is an old one. The war-making model has long prevailed as a matter of practice –in service to the economic self-interest of lawyers (who used to consider themselves quasi-public servants). Don’t the facts lamented by Mr. Howard, Mr. Lewis, and many other public-minded observers make it clear that it is now time to give peace a chance by a return to ethical notions of law as primarily an instrument of reason rather than regulated combat? It is not tort reform we need: it is reform in the model of legal education and practice of a kind that could save the economy billions of dollars annually, including helping to reduce health care costs substantially.
Harrison Sheppard
http://whatsrightwithlawyers.com
[1] See, e.g., the list of books cited in Sheppard, “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237, 246, n.19, with such titles as The Lost Lawyer (Anthony Kronmen) and The Betrayed Profession: Lawyering at the End of the Twentieth Century (Sol Linowitz) and including Mr. Howard’s The Death of Common Sense.
[2] See the statistics, now probably somewhat out of date but still indicative, in 28 Loyola University Chicago Law Journal at pp. 240-241, cited in the preceding note.
[3] Ralph Nader identified discovery as the most pernicious abuse in contemporary legal practice in Nader & Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (1996).
[4] 28 Loyola University Chicago Law Journal 256-257, with documentation at note 42.
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