Category Archives: Lawyers

LEGAL EDUCATION

Published in Vital Speeches of the Day, April 1998

I. Introduction

It is a special pleasure to have been invited to speak to the Yale Club.  I never attended Yale, but it has important associations for me directly related to what I am going to talk about. I went to Law School here in San Francisco, at the University of California’s Hastings College of the Law.  The only law professor with whom I  established any real rapport as a student was a Yale graduate and former member of the Yale Law School faculty: Professor Roscoe T. Steffen, for whom I worked as a legal research assistant.  Prof. Steffen was born in Montana in 1890.  When he was a Yale Law School student, he attended  Constitutional Law classes given by William Howard Taft, between the time Taft was President and the time he was appointed Chief Justice of the U.S. Supreme Court.  It was as a result of a recommendation by Prof. Steffen to the Attorney General of the United States that I began my own legal career as an attorney in 1967 with the Antitrust Division of the U.S. Department of Justice in Washington, where Prof. Steffen had also served.

The second association with Yale that has personal significance is even more directly related to the subject of my remarks.  The present Dean of Yale Law School, Anthony T. Kronman, has written what I believe to be the best of many books that have been published during the past decade about the decline in standards of legal practice in America: The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1993).  In my talks around the country to State Bar associations (and at  Annual Meetings of the American Bar Association) to discuss the critical need for change in American legal education and practice, I regularly cite Dean Kronman’s commentary on the progressive loss of what he calls the “lawyer-statesman ideal” as the model of legal practice.

It is therefore my impression, for these and other reasons, that the dominant Yale ethos –perhaps it is not even going too far to say its spiritual outlook-is much closer than that of other law schools –for example, Harvard’s– to what is needed to re-inspirit the American legal profession in needed directions.  What I mean by that I hope will become clear by the conclusion of this talk.

II. Prevalent Lawyer Practices

The assigned topic is “The Need for Change in American Law School Education.”  In addressing this topic, I do not wish merely to inform this audience.  I want, in addition, to alarm you.  For it is my opinion, after having studied the issue  intensively for some years now, that the present typical behavior of lawyers, if continued unchecked and untransformed, seriously jeopardizes the future health and security of our most important civic institutions, and imperils the ultimate object of our form of government which, as stated in the Preamble to our Constitution, is “to secure the Blessings of Liberty to ourselves and our posterity.”

In order to describe the specific needs for change in legal education, I will begin with some observations about the state of legal practice.

Lloyd’s of London has estimated that “lawsuits arising from the dreaded ‘millennium bug’ [the inability of computers to recognize dates beyond the year 1999] will top $1 trillion in the United States alone.”1  Leaders of the computer industry, however, take another view of things.  “’When I talk to people [about the millennium bug problem],’ Harris Miller, President of the Information Technology Association of America says, ‘unless there’s a lawyer in the room who’s trying to make some money out of it, nobody’s talking about legal liability.’  He says his Association is doing as much as it can to educate and raise people’s awareness of the problem. ‘We think that’s how you deal with this issue.  You get it solved rather than hypothesizing about liability issues’.”2

The difference between (1) a litigious and (2) a problem-solving approach to difficult situations is precisely the difference between what is now ailing the legal profession–with actually adverse, and potentially disastrous economic, social, and political consequences– and what needs to happen for the profession to correct itself.

One economist has loosely estimated that the cost to the public in unnecessary litigation is about $320 billion per year.3   And I have seen published estimates of the number of lawsuits filed each year in this country –of every kind– as high as eighty million.  These figures do not appear to me to be at all fantastic.  They are rendered credible by more well documented figures such as, for example, the figures of the Bureau of Justice Statistics of the U.S. Department of Justice in its analysis of case dispositions in its Special Report, Civil Jury Cases and Verdicts in Large Counties 1, July 1995. The Department’s Special Report analyzed case dispositions in 762,000 contract, tort, and real property cases filed in one year in the 75 largest U.S. Counties.  That’s more than three-quarters of a million cases, in the 75 largest counties, in just three areas of the law.  What is really interesting, however, about the Special Report, is what it indicates about the wastefulness of litigation in the United States.  For out of those 762,000 cases, only 1.5% were tried by a jury.  Voluntarily settled cases (61.7%), and cases that were either dismissed (10.8%) or resolved by summary judgment (3.7%) comprised more than three-quarters of all filed cases (76.2%).

At first glance, one might suppose that these figures describe a good situation.  After all, only 1.5% had to be tried.  But consider: what legal expenses were incurred before the case settled at the courthouse door?  They were enormous.  For the fact is that use by lawyers of the formal pre-trial procedures called “discovery” and “motion practice” constitute a typically and notoriously wasteful abuse of contemporary legal practice.4  Indeed, I doubt whether there is a single lawyer of sound mind in the United States who would not admit (off the record and over a drink, for example) that in the vast majority of cases –even relatively complex cases– if opposing counsel were able to deal with one another with consistent discreet candor, forthrightness, and reason, they could resolve their cases in one-tenth of the time it takes to resolve them through the formal adversary methods of legal practice.  And I will testify myself, after thirty years in government and private practice, that I have only very rarely encountered a case that couldn’t be so settled if clients were counseled properly by their lawyers, and lawyers were properly trained to approach situations of conflict with reason instead of testosterone, greed, or well-intentioned bad habits.

The truth of this assertion was illustrated –in fact, I would say it was demonstrated— for me, in my very first case in private practice.  In that case, in which I was plaintiff’s counsel –reluctantly bringing the matter to litigation because the defendant’s lawyer refused even to talk to us about the problem–  liability was fairly clear and the only real issue was damages.  I offered to provide the defendant’s lawyer voluntarily with a full statement of the legal theory of the case and documentation of my client’s damages.  The defendant’s lawyer was being paid by an insurance company.  He insisted upon taking depositions of both parties and conducting other formal discovery over a period of nearly two years before agreeing to a mediation, in which the case was settled in half a day —for more than five times the amount my client was willing to settle for if the case had been resolved immediately as we had proposed, without formal procedures.

When I went to defense counsel’s office to pick up the settlement check, I asked him why the case couldn’t have been settled through the methods we had originally proposed.  Justifying his insistence upon formal litigating procedures, he said “Well, that’s the way the system is supposed to work.  It just didn’t work well in this case.”  This point of view is, in my opinion –as it is in thousands upon thousands of cases like it that are litigated every month in this country — either nonsense –self-serving nonsense– or an admission of incompetence.  The file was probably just “not thick enough” for the insurance defense law firm to bring it to the insurance company adjuster until it had at least two (essentially unnecessary) depositions in it and reams of other (essentially unnecessary) discovery documents.

The costs of such unnecessary litigation add billions to the cost of living in the United States; billions to the costs of virtually every product and service offered.  Fear of medical malpractice claims, for example, has been estimated to add between 7 and 20% to our national medical bill through strictly unnecessary defensive medical practices and procedures most physicians would not otherwise prescribe.5

III. The  Constitutional & Political Problem Posed By Adversarial Legal Practice

It is not, however, the economic costs of grossly excessive use of  formal adversarial legal practices by lawyers that is the subject of my greatest concern.  Nor, as a lawyer, is it the fact that the more contact people have with lawyers, the less they like them.6  Nor is it even the fact that  lawyers themselves may now constitute the most depressed professional group in the country and are, in increasing proportions, dissatisfied with their choice of career.7  Rather, the greatest concern I have –which is a matter about which I believe we must all be or become concerned– is that most lawyers are no longer even aware of the fact that their most important function is to serve as the guardians of our Constitutional system in all that they do in both the public and private practice of law.8   And, moreover, that what is now a virtually universal ignorance or disregard of this fact may already be jeopardizing the maintenance and security of our most fundamental national purposes as articulated in the U.S. Constitution.

The authors of our Constitution comprised a constellation of thoughtful political architects probably without precedent in history.  When they enunciated the purposes of our Constitution in its Preamble, they did so very carefully, with strict regard to the order of priorities our republican system is supposed to serve.  That Preamble declares our national purposes to be as follows:

“We the people of the United States, [1] in order to form a more perfect Union, [2] establish Justice, [3] insure domestic Tranquility, [4] provide for the common defence, [5] promote the general welfare, and [6] secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America.”9

 

The first of our declared national purposes under our Constitution was “to form a more perfect union” out of the diversity of our people and the separate States.  We may now pride ourselves on the diversity of America.  But even at the end of the 18th century, the thirteen original States were also a “diverse” group.  Without the technology of modern communications and transportation, without the homogenization of culture now made so possible by electronic mass media and multi-national corporate enterprise, the people of 18th century Massachusetts and New York lived in a markedly different culture from the people of 18th Century Georgia and South Carolina.  The very first purpose of our Constitution was to bring together this diversity in a [1] “more perfect union,” since our Articles of Confederation had so conspicuously failed to achieve that.  This is a purpose that  remains as critical now as it was then.  The present diversity of the people of the United States, now still living together in relative harmony, is something of a political miracle.  But our “more perfect union” may now again be threatened by forces working to tear it apart, under the leadership of litigious lawyers serving an unnecessarily litigious public.10

Once the Constitution has formed a “more perfect union” among our people, its very first governmental objective is [2] to “establish Justice.”   That purpose, note, is not to “establish law;” for that is presumed. It is to establish Justice as the first object of our basic law.  And whatever theories of “justice” may contend with one another, its core meaning is to give to each his or her due, not to give to each only what superior power or wealth or aggressiveness may choose or refuse to give.

The second object of our government (assuming a United States) is [3]  “to ensure domestic Tranquility.”  That is, once the union is assured, and our basic legal institutions organized to establish justice, the aim of our government is to insure tranquility among our people so united.  This necessarily implies that use of the law as an instrument of discord, division, and battle, rather than as an instrument of peacemaking, where reason may find the means to make peace, is contrary to one of our Constitution’s prime purposes.  The lawyer as problem-solver, conciliator, and peacemaker is faithful to this purpose.  The lawyer as Rambo litigator with a private self-sworn oath “to take no prisoners” and assert a client’s rights to his or her last dime –even where peace may be purchased, with reason, much more economically– is an unfaithful enemy to this Constitutional object.

Given a well-united people, living under laws designed to establish justice, in  domestic tranquility among ourselves, the Constitution turns its attention to our [4] common defence and [5] general welfare. These five stated Constitutional objectives are the predicates for its highest political goal: [6] “to secure the Blessings of Liberty to ourselves and our Posterity.”

IV.  The Need For Change in Legal Education Toward A Problem-Solving, Peacemaking Model of Legal Practice

Before relating this summary of our fundamental Constitutional purposes to the problem of legal practice and legal education in America today, permit me to interject a relevant personal note.  Like tens of millions of other Americans, I am the grandchild and great-grandchild of immigrants.  I have visited the lands my forebears fled, escaping tyranny and persecution.  There is hardly a day that goes by that I do not thank them for giving me the privilege of having been born here.  My travels around the world have consistently confirmed me in my happiness at being an American who has, throughout his life, enjoyed “the Blessings of Liberty” which have been secured to me.  I am pleased and proud, not only to be an American, but to be a lawyer in a land where, as Lincoln put it “reverence for the law” is and should be “the political religion of the nation.”11   At this latter stage of my life, its sunshine comes most copiously upon me in the persons of my two grandchildren.  I hope that they will be able to enjoy, at least as much as I have, the “Blessings of Liberty” our Constitution is designed to secure for them.

But the recently emergent typical behavior of lawyers gives me cause for anxiety on their behalves.  Every American lawyer, when admitted to the bar to practice law, swears (or affirms) an oath to uphold the laws of his or her State and the U.S. Constitution.12   This oath has, for many –I fear, perhaps most– attorneys become a ritual whose meaning is ignored, disregarded, misunderstood, or forgotten.  The proof of this could, I think, be simply established by discovering the number of attorneys who will confess it to be their Constitutional duty, as officers of the courts, privileged to interpret, advocate, administer, and enforce the laws of the land, to help “establish Justice, insure domestic tranquility…and secure the Blessings of Liberty to ourselves and our Posterity;” and the number of attorneys who will confess that a failure to use, with persistence and determination “to the best of their knowledge and ability” all the problem-solving, peacemaking, and conciliatory skills they have to help achieve these objectives, is a violation of their Constitutional oaths and a profound infidelity to the spirit of their calling.

The epidemic failure of members of the American bar to hold these purposes firmly in the front of their minds in all that they do as lawyers, is a failure which threatens to undermine the maintenance and security of our Constitutional purposes.  In contrast to the frightening possibility of a post-civil society in America, we all must hope that the third century of our American republic will be likely to follow its first and second as world-historical miracles of stability, prosperity, and progress.  But our  hopes, I submit, will ripen into expectations only if enough members of the American legal profession come to recognize in time their critically catalytic role as the secular ministers of American democracy.  That is in fact the role to which lawyers have been appointed by the American public:

“American lawyers work in a society that has chosen to thoroughly legalize itself.  Alexis de Tocqueville noticed over a century ago Americans’ temperamental inclination to turn political, economic, and social problems into lawsuits. Thus the diversity and complexity of the lawyer’s work simply reflects American law as a political institution because of the kind of society twentieth-century Americans have constructed for themselves.”13

Ancient and modern history show that when conflict among sharply differing factions in democratic societies grows, and legal institutions become inadequate to resolve them harmoniously and peacefully, the result is either authoritarian government or mob rule.  Where violence in a society increases beyond a certain point, it is sad, but true, that most people will trade their liberties for greater security.  Tocqueville also recognized this, as well as the essential role a prudent legal profession must play in maintaining the liberties of a republic.  Speaking of lawyers (who were then exclusively men), Tocqueville wrote:

“I am not unacquainted with the defects inherent in the character of that body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could long subsist if the influence of lawyers in public business did not increase in proportion to the power of the people.”

Tocqueville was not talking about Rambo litigators.  His words may be understood to suggest that American democracy may survive and prosper in the 21st century only if we lawyers learn to do more than ever before to help harmonize our miraculous American diversity.  This is a challenge for lawyers to think of themselves, and to act, as peacemakers first, peacemakers second, peacemakers third, and as warriors only in the very last resort –remembering, and taking very seriously, their Constitutional oaths.14   For if we lose our American Republic, it will not be conspicuously, in a tyranny of chains and dungeons.  It will be quietly, and gradually, out of a concern for our physical security precipitated by rising social discord and violence until, as Tocqueville puts it, our people become “timid and industrious sheep, of which the government is the shepherd.”

And this brings me to the main point of this talk: the inadequacies of contemporary legal education to help lawyers carry out their responsibilities as the guardians of our Constitution.

The dominant model of American legal education remains one in which students are taught how to argue aggressively, with no quarter given or taken, and how to fight an opposing viewpoint with uncompromising technical skill.  Fewer than 4% of American law schools require their students to take even one hour of training in negotiation as part of their learned skills.15    American law schools remain on the whole exactly the kinds of institutions you would create if you wanted to promote a kind of civil war instead of civil peace.  Law schools are not schools for resolving conflict harmoniously; they are schools to help promote profitable conflict.16

Given the increasing polarization of our marvelously diverse society, it should be considered a national scandal –if not a national disgrace– that law students are permitted to graduate from law school without being required to learn skills needed to help them resolve, rather than exacerbate, conflicts wherever possible; that they are not required to learn advanced techniques of successful problem-solving, peacemaking, win-win negotiation; and that they are, instead, encouraged to see themselves chiefly as aggressive warriors, rather than primarily as civic-minded peacemakers.

V. Conclusion

I will conclude this talk by addressing you directly, as alumni of Yale University; to plead for your active engagement in this cause, in every way you may be capable of participating in it: through the demands you make upon your own attorneys; through the support you may give to the efforts of Dean Kronman to help alert the American public further to the dangers inherent in permitting “the failing ideals of the legal profession” to fail utterly; and in every other way you can to help move legal education toward a peacemaking model in faithful adherence to the expressly stated purposes of our American Constitution and our republican form of government.  Let each of us do our duty to “secure the Blessings of Liberty to ourselves and our Posterity.”

 

(c) 1998 Harrison Sheppard

 

 

A Lawyer’s Life Can Be A Happy One

 

Published in the Hastings Weekly, February 2004.
University of California Law  School

 

When a felon’s not engaged in his employment
Or maturing his felonious little plans,

His capacity for innocent enjoyment

Is just as great as any honest man’s.

But take one consideration with another,

A lawyer’s lot is not a happy one.

–adapted from Gilbert & Sullivan.

So you want to be a lawyer?  Studies during the past 20 years have shown that lawyers are among the most depressed class of professionals in the United States.  Some have shown that they are the most depressed.  In urban areas, alcohol and drug abuse have been reported by State Bar Associations to be among the most common problems afflicting lawyers –especially trial lawyers.  The past often predicts the future.  It is therefore important for you to consider why you want to be a lawyer, and the kind of lawyer you are going to be –not technically, but humanly.

There are many reasons students decide to go to law school.  These include to make a good living –or even become “rich”– in an interesting profession; to develop one’s talents in a calling congenial to one’s personality; to pursue a law-related career ambition, such as politics or government; to follow a family tradition; and to help promote justice in a highly competitive society where injustice is not a rare thing.

I have heard lawyers say that they were making more money than they ever thought they would, but were also unhappier than they ever imagined they could be.  After nearly 40 years as a civil lawyer in both public and private practice, I have come to some firm conclusions about why so many lawyers are unhappy people.  I will share these conclusions with Hastings students in a talk and discussion at the Law School, sponsored by the Placement Office, on Wednesday, February 18.  One of my main conclusions is that many lawyers are unhappy precisely because the prevalent legal practice ethos has led many lawyers to lose sight of the real reasons they wanted to become lawyers in the first place.  They do this out of a perceived practical necessity. My own experience tells me, however, that no such necessity really exists, and that a lawyer’s life can be a happy one so long as his or her original motivating visions are not lost.  Practicing lawyers are likely to tell you that this is very difficult to do.  To the contrary, as my talk will explain, the real difficulties for lawyers arise when they accept this point of view.  For the longer term, and in the deepest sense, remaining true to one’s self is the easiest thing to do.

And when you do that, your lawyer’s life can be a happy one.

Harrison Sheppard (Hastings ’67), principal of Harrison Sheppard Law & Conflict Resolution and a frequently published essayist, is author of What’s Right with Lawyers/What’s Wrong with Lawyers. His column on Law & Justice appears regularly in San Francisco Attorney magazine, the quarterly journal of the Bar Association of San Francisco.  His website is voicesoflife.com.

(c) 2004, Harrison Sheppard

Reflections on the Purpose of Law

San Francisco Attorney magazine, Winter 2003

 

I have been practicing law for thirty-five years, and I remain proud to be a lawyer in the United States.

As I have written elsewhere[1], the American legal profession and its most accomplished members have been among the most civilizing and progressive forces in history. American lawyers, going back at least to Thomas Jefferson, have helped to provide others with a better life through their vigorous defense of individual human rights, their political acumen—more than two-thirds of our presidents during the first 150 years of our nation’s history were lawyers—and by the contributions lawyers have made to the world’s economic and social development.

It is great to be a member of a profession whose very existence is designed to elevate human conflict from the brutish to the civilized, as Aeschylus’s mythic trilogy, The Oresteja, depicts in its transformation of blood vendetta to the reasoned discipline and restraint of trial by jury. The exercise of reason in human affairs is the most reliable means for bringing of stability and justice out of the chaos of human competition and conflict. “The life of the law,” as John Locke wrote, “is reason.”

Understanding the essential purpose of the legal profession is gratifying. Even greater gratification may come from helping clients resolve their problems, not only through the occasional trial of a case but, more often, through humanistic counseling and skilled negotiation. I spent the first two-thirds of my legal career in the federal government, with the U.S. Department of Justice and the Federal Trade Commission. There are, of course, satisfactions a lawyer enjoys from the practice of public law. These are derived mainly from being a position to help implement beneficial public policy. The satisfactions of advancing a good government policy, however, are rather abstract; one rarely sees how government work actually affects individuals. They are, therefore, generally less than the satisfactions private practitioners can enjoy from seeing their work make concrete, positive differences in the lives of the men, women, and—at least in effect— children that come to them for help, as well as from contributions they make to the well-being of their business clients’ enterprises. These greater satisfactions are compounded for me as a solo practitioner and independent businessman with the luxury of choosing my clients and regulating my own calendar.

When you run your own business, there are also things that come with the territory that are not-so-great. There is constant worry about the bottom line, from which you are, of course, exempt if you are a salaried employee. There can be nerve-wracking uncertainties about the ultimate outcome of a case in which you have invested much thought and labor, because of difficult facts or conflicting rules of law, or the discretion vested in judges. There is the occasional deadbeat client, sometimes one for whom you have worked above and beyond the call of duty. And, of course, the lost case or the case that, for one reason or another, prudence requires you to settle on terms that seem to you unfair.

These are perils of practicing law, but they are not nearly as disappointing or frustrating as the commonly disappointing character of prevalent American legal practice itself, and the concomitant erosion of civility in relationships between opposing counsel.

The general character of American legal practice has changed much for the worse during the past thirty-five years. I believe this has been chiefly a result of three developments: (1) the great growth in large firm legal practice; (2) the U.S. Supreme Court’s decision in Bates v. State Bar of Arizona (removing restrictions on lawyer advertising); and (3) the degraded image of the legal profession due to the misbehavior of so many lawyers (including the U.S Attorney General in the Watergate scandal). These developments have caused the dominant ethos of American legal practice to become more that of business enterprise than of a learned, humanistic profession. A dozen or so books by distinguished attorneys and scholars published in the 1990s document and lament this trend.2 The pressing necessities of “the billable hour,” the loss of the mentoring system in law firms, and a common collective loss of memory of the true roots of the American legal profession in history—the common law and the Unites States Constitution—have led to a common ethos in legal practice encouraging the “gun-for¬hire,” “Ambulating,” and “take-no-prisoners” mentalities that have widely corrupted the professional behavior of lawyers. Experiencing this corruption can sometimes make the practice of law an unpleasant experience.

Lawyers who do not take their constitutional oaths as seriously as they should—that is, who do nor make the pursuit of justice a paramount concern in the exercise of their calling3—are also likely to ignore the spirit of reason and civility that defines the essential character of the law. Having to deal with such lawyers is the worst thing about being one. The uncivil lawyer is well-armed with self-serving, self-interested excuses for his or her behavior:

“I’m only doing what my client wants me to do,” or “I’d prefer to be civil, but I have to deal in kind with all those other uncivil lawyers to protect my clients’ interests.”

These excuses—half-truths at best—generally mask the abrogation of a lawyer’s professional responsibilities as counselor and peacemaker, and often amount, in my opinion, to chosen Incompetence. As Elihu Root, the great New York civil lawyer and Secretary of State under President Theodore Roosevelt, said, “About half the practice of any decent lawyer consists of telling would-be clients that they’re damned fools, and should stop.” In contrast to the ubiquity of these public excuses and rationalizations for uncivil behavior in legal practice, I have never met any lawyer—including self-professed “Rambos”— who does not admit, at least in private, that if he or she and opposing counsel had dealt with each other with discreet candor and civility, and counseled their clients skillfully and with reason, many of their most difficult cases could have been settled in a small fraction of the time it took to resolve them through the costly, stressful, and often unnecessary procedures of formal discovery and litigation.

The contradiction between this practically self-evident and almost universally understood truth and the typical behavior of practicing lawyers today is the least-great thing about being a lawyer. As an incorrigible optimist, however, I see some possible antidote to this situation in the growth of mediation and in the recognition of its economies by corporate America. Now, if our law schools could also evolve to address the critical need to educate students as better negotiators and problem-solvers and de-emphasize the lawyer’s role as warrior, I could more confidently predict that the next generation of lawyers would be less likely to complain about what is not-so-great about being a member of our profession. I would add, more than by the way, that, given America’s present place in the world, a return to great civility in the practice of our profession could make an important contribution to world peace.[4]

NOTES
1. “Cashing in On Conflict,” The Washington Post, June 5, 1996; “The Triumphs of Law and Lawyers in the United States,” The Hellenic Journal, June 16,1995.
2. See e.g., the citations in Sheppard, “American Principles & The Evolving Ethos of American Legal Practice,” 28 Loyola University Chicago Law Journal 237, 246, note 19 and passim, Winter 1996.
3.See, e.g., Sheppard, “Legal Education and the Future of the Republic,” a talk to the Yale Law Club of San Francisco, published in Vital Speeches of the Day, April 5, 1998.
4. See, e.g., Sheppard, “A Lawyer’s Christmas Message,” San Francisco Chronicle, December 25, 1997.