by Scott Turow
Nonetheless, I doubt that the first year of law school is an easy time for many people, even today when some of the defects I complained about most, particularly severe application of the Socratic method, are less and less common. At Harvard, two experimental sections are now taught in which professors in the major first-year courses will often conduct class together, comparing and contrasting the way certain central concepts are handled in different subject areas: varying approaches, for example, to the utilitarian notion of cost-benefit analysis in the law of torts, contracts, and crimes. But these changes, admirable though they may be, do not seem to run deep. I have been back at Harvard on occasion, and 1Ls, to my eye, still frequently exhibit high anxiety and a common sense of being unmoored by the education they are undergoing.
Whether or not I am correct in these estimates, time has not changed my recollection--I still believe that my own experience was very much as it is reflected here. I would still criticize the same things: The classes were too big, the teaching methods too severe. The competition at the end of my first year was ungoverned. And the two years that followed, though far more comfortable, were seldom as engaging. Law school did prove, in my judgment, to go on too long--two years would be adequate to absorb the benefits of the present curriculum--and it was, all in all, too much of a forced march.
Indeed, in some ways, I am less sanguine about legal education than I was when I left Harvard in 1978. Although it probably violates some rule of proportionality to be complaining about anything more than a decade later, the years since have sharpened my sense of disappointment about the way law school fails the legal profession. I am not talking about the fact that law school does not teach the manifold skills required by practice, although it certainly does not. I am speaking instead about a matter of vision. To explain, I must add some of my own observations after ten years in practice.
***
To a great extent, law and lawyers are in their heyday in the United States. Lawyers' incomes continue to rise and their prominence in the society at large seems ever-increasing. The most popular show on television at the moment is about daily life in a law firm. As our notions of privacy have changed and as venerable institutions like churches and schools have come to speak with less uniform authority, the courts have emerged as the arena where debate is most often conducted concerning matters--often highly personal ones--about which we find ourselves profoundly in conflict: the right to abortion, the means to achieve racial and gender equality, the propriety of surrogate motherhood, or the appropriate treatment of contagious, life-threatening disease. Like an encroaching sea, the law has taken over areas that were once reserved from it as matters of conscience. Perhaps because the law seems to know more of the answers, the legally trained continue to show up in increasing numbers as leaders in areas outside the law. These days a law degree, for instance, seems to have replaced a cigar as a requirement for Hollywood mogulhood.
And yet the law remains in some manner a troubled profession. In spite of the prominence of law, lawyers themselves are far less well regarded. Many lay people do not like lawyers. And to a surprising extent, lawyers often do not like themselves.
Since Watergate, when the nation discovered that a legal education seemed to be a common attribute of everyone who planned the burglaries, destroyed documents and tapes, and, when need be, lied under oath, there has been open distrust of the legal profession. In annual Gallup polls measuring public regard for various callings, the legal profession for years has approached the absolute-zero point represented by so-called sales consultants of pre-driven automobiles. During a recent evening with a group of male friends, the non-attorneys stood around and told lawyer jokes, which have apparently supplanted ethnic humor.
How do you know when a lawyer is lying? His lips move.
What do you know when you find a lawyer up to his neck in concrete?
Someone ran out of concrete.
How do you know that God, who created the world out of chaos and darkness, was a lawyer?
Because he made chaos and darkness first.
In a way, some of this hostility may be viewed as a problem of expectations. Because the law deals so much with principle, lawyers are expected to be principled. Because questions of right and wrong, lawful and illegal, dominate each lawyer's daily contemplation, lawyers are presumed to be better able to discriminate such concepts and to observe them. To many, it is not an acceptable defense to say that lawyers are no less vulnerable to temptation than anybody else; somehow, people think they should be. Moreover, to the extent that it is recognized that a legal education, and the practice of law, may tend to elucidate the vague and quickly shifting nature of some of these boundaries, lay persons are too often left with the impression that lawyers are sophists, able to skip nimbly along the lines, knowing how to raise the chalk without stepping clear out of bounds.
Some of these suspicions are simply the result of misunderstandings, but it would be disingenuous of me to claim that I have found the American public's distrust of lawyers baseless. The path from law school led me to the United States Attorney's Office in Chicago, where I was a criminal prosecutor for eight years, principally involved with what are called public-corruption cases. Usually this meant some species of bribery and usually, given the nature of the cases I was assigned, the people I prosecuted for giving or taking what was not supposed to be offered or received were lawyers. I prosecuted lawyers for paying off tax-assessing officials, and tax-assessing officials for taking the money those lawyers offered. I prosecuted a judge for shaking down dozens of attorneys who appeared before him, and I prosecuted a lawyer who achieved a victory in a preliminary hearing in a drug case by paying the judge $300 to rule in his favor. I prosecuted lawyers who sold narcotics with their clients, and lawyers who lied on their tax returns. I even helped prosecute the Attorney General of Illinois, who was convicted of income-tax fraud for, among other things, not reporting $5,000 in cash, which was handed over as a supposed campaign contribution by a lawyer who appreciated the $100,000 in state legal business that the Attorney General assigned him each year. Furthermore, these experiences came in an atmosphere that was, politely put, rough-and-tumble. There are alligators in the swamp who are more m innerly than a few members of the criminal defense bar in Chicago.
All in all, this provided me with what I sometimes refer to as a proctologist's view of the legal profession. One of the unexpected pleasures of private practice has been encountering the leagues of honorable lawyers who labor every day with a greater uprightness than what I was accustomed to. And whenever I hear discussions that characterize the profession as a dark cabal, I am at pains to say what I believe to be true: I know more remarkable people who are lawyers, persons of diverse capacity and round wisdom, than in any other calling. I like lawyers and I relish being among them.
And yet the fact remains that there is a good deal of misbehavior in the profession. Any lawyer who doubts this ought to ask himself what he thought--and said--about his opposition in the last highly contested matter in which he was involved. Suspicion runs deep through this supposed fraternity, and most lawyers, in candor, will admit to having been exposed, almost routinely, to conduct by other lawyers that crosses the lines of the acceptable, the ethical, and, more rarely, the lawful.
Indeed, this distrust of lawyers for one another is part of what I would call generally the legal malaise. Many lawyers do not like to practice; they regard themselves as imprisoned in gilded cages: highly paid, well regarded, and unhappy. In 1987, I published a novel called Presumed Innocent, and its success led many to wonder whether I would go on practicing law, as I have. But nowhere was the disbelief at decision greater than among attorneys, who have told me by the score that they would throw over their practice in a moment if they had the same opportunity.
Some of this is romantic, grass-is-greener stuff. But the fact is that life at the bar is h rd. The nuts-and-bolts work can be frustratingly detailed or numbing . Y routine--and the environment someti
mes dismal. On one side stanch the adversary, of dubious ethics and limitless zeal; on the other, the client waiting hungrily for favorable results. Between them is a stressed out existence of economic pressure and ceaseless competition, a parade cif deadlines, obdurate judges, unreturned phone messages, lost weekends and evenings, a Sisyphean struggle to catch up.
And yet I have found practice, for the most part, a kick fast, tough, and keen. There are finite tasks to be accomplished which require intellectual sophistication, a quick grasp of facts, and diverse personal skills--guile, judgment, persuasiveness, and the ability to project the force of personality. Every case and every client is in some aspect unique, yet similar enough that you can take predictable pride in recognizing your own increasing skill. The human settings, and the complexity of legal questions, engage me just as thoroughly as when I was 1L, wondering whether a contract was formed when I ordered a hamburger. Most important, there is often profound satisfaction in having done your best to aid someone in need.
What, then, is the problem? If you push the average unhappy lawyer hard enough, he or she will usually come out with something like: What is it worth, in the end? What good am I doing? One of the best-known lawyers in Chicago once extolled my job as an Assistant United States Attorney, comparing it favorably to his lucrative practice as a commercial litigator. What do I care, he asked, if his robber baron wins, or mine?
That is, of course, the rub. A lawyer may do his job very well, but he does not set the moral agenda. The ends are established by the client, not the attorney. It is the lawyer's obligation to carry those goals forward, within the limits of law and ethics. It is his job to be a competent professional, to do well, without regard to whether he is doing good.
I became a government lawyer because I wanted to avoid that box. I chose a client--the United States--which I believed most often stood on the right side. Although as a younger lawyer I was involved in many cases that I found morally ambiguous--how much pleasure can you take in prosecuting immigration cases after seeing El Norte?--the bulk of my efforts was directed toward ends I felt worthwhile, especially the preservation of democracy, which I perceived to be the real aim of all those public-corruption prosecutions. And yet how many cases were lost because of my failure to communicate adequately to the jury, or their inability to understand what had been well enough explained? How many judicial decisions did I confront that were simply wrong? Much of my work as a prosecutor was tossed aside last term when the Supreme Court decided to reject forty years of case law and reinterpret the federal mail-fraud statute. And how often was I myself involved in a process which, for all the worthiness of its goals, was inevitably flawed by human incapacity? It was corrosive to my faith when, years along, I finally realized that many of those convicts I called to testify against their cohorts were, despite all my zeal and cajoling, not providing an unswerving version of what occurred in the past. I was not the judge. I was not the jury. I was not the witness. I was just the lawyer. All I could do was my job, as well as I could. There was no guarantee I would do any good, no world reform. Once that recognition dawned, private practice was not far off.
This dichotomy between doing good and doing well, which so deeply troubles the legal profession, should be familiar to those who have read One L, for its roots reach into legal education. As I noted, one of the most painful aspects of law school is what students often experience as the sense that they are being taken away from themselves. Deeply developed values and beliefs are challenged and generally exposed. Students learn that for every argument there is a counter. The plasticity of the law is taught. Moreover, most of what takes place during the supercharged and often coercive atmosphere of the first year goes to emphasize what I would call a culture of professional competence. What matters, professors tell you time and again, is not that you come up with the right answer on exams but that you reason powerfully and recognize contervailing arguments in areas where there are no accepted solutions. Rationality is a human attribute worthy of being prized. But lawyers trained in law schools generally come away with the feeling that adherence to a larger world of values is somehow discouraged. For the idealist is substituted a technocrat. The do-gooder is now someone who aspires only to do well.
It is this absence, I think, that accounts for much of the unhappiness I described before. Feeling cut off from a world of transcendent values, lawyers often despise themselves, because, as they see it, they do no good, while a few others, too absolute in their hunger to do well, are willing to believe, too easily, that there are no limits to the extent to which they should go in a client's behalf, and engage in lawless behavior.
Where does it lead? Whither out of the mess? I suppose at this point I can only be plain.
Ten years down the road I have learned this much: Our life as lawyers can be redeemed ultimately only by the process of which we are a part. The synthesis of the do-well, do-good dialectic is some margin of faith in the legal process. Whether that means the ardent advocacy of reform in the process itself, or faith in the laws that are applied, or dedication to ethical representation of clients' interests, lawyers take the greatest satisfaction from their calling when they believe at some level that the system of which they are a part aims at achieving just and rational results, no matter how far or how often it strays from those objectives. As corny or even unlikely as it sounds, most lawyers, at root, are involved in doing justice and for that reason should feel allegiance to the lawyering process.
In a way this not an argument at all, but the passionate advice of experience. My first years as a prosecutor were profoundly frustrating as I watched the manifold ways in which the truth becomes distorted in a criminal courtroom. The defendants were so guilty, what they had done was so wrong, and it was so hard to show that. It was not that there was a rash of acquittals--indeed, the government won most of the time--but the path was always tortuous. The defendants and their accomplices routinely bore false witness; the rules of evidence were sometimes foolishly restrictive; judges seemed to side against the government at trial out of an expedient desire to appease the defense, which alone has the right to appeal; and the jungle ethics of the criminal courtroom seemed to reward the most underhanded maneuvers of defense lawyers. And yet somewhere, twenty to thirty trials along, like Saul on the road, I found myself converted. I began to realize that we were all--the judge, the defense lawyer, I myself--engaged in a mutual enterprise, that there was a moral vision at work here, which provided that we could not safely deprive any human being of his or her liberty without first knowing that the provable facts could not be contorted into a shape reasonably consistent with innocence. I even recognized that, whatever the unearned suffering of the crime victim, the defendant now was enduring a torture of shame and anxiety of his own, and that compassion was a worthy, even healing value in a process that usually inflicted some form of tangible punishment. And by then the unthinkable had occurred: I could see myself as a defense lawyer.
That change in perspective did not make me a cheerleader for the criminal-justice system. But as prosecutor, and now defender, I have had the benefit in each role of a deeply felt sense of what I am about. There is a genuine nobility in dedicating yourself to the ends and interests of another, in becoming that person's unhesitating champion. Law practice is gratifying at its highest levels not only because of the status, intellectual challenge, or sometimes exorbitant financial rewards, but because there is something profoundly pleasing to all of us about being able to provide direct aid to someone who is eager for our assistance. They need me, they need me! thunders in the mind of most lawyers who like what they do.
For a lawyer, the essential professional task is to answer that need, to subsume his or her own interests and to act as the spokesperson for another. Worthy as that enterprise may be, it is not unique--real estate brokers and literary agents, among many others, do the same thing. But lawyers also labor with a concomitant dedication to the system of justice. The fundamental tension of the profession is the stru
ggle between bold advocacy of the client's interests and the need to establish and hold to limits that prevent advocacy from leading to irrational and inequitable results; and thus the lawyer's job in practice is to be on one hand the impassioned representative of his client to the world, and on the other the wise representative to his client of the legal system, and the society, explaining and upholding the demands and restrictions which that system places on them both. Every lawyer who enjoys the practice learns to recognize and embrace these conflicting imperatives, even as she or he labors daily to resolve them. But that learning right now is hit-or-miss. There is no cultural center to the practice of law, no sense of a shared background that informs us all with a fidelity to and comprehension of the lawyering process.
Certainly, law school right now does little to help. Students are introduced of necessity to the culture of professional competence, without being taught much about the commitments of their profession. And the reason, quite simply, is that this is not law school's aim. To put it plainly, law school is not lawyer school. With the exception of clinical programs which teach practice skills, and which generally stand as isolated segments of the law-school curriculum, there is still little effort to teach students, while they are in law school, what it means to practice law.
It should not have taken me roughly fifteen years to figure all this out. When I applied to law school, I was a lecturer in the English Department at Stanford, and, as a courtesy, the Director of Admissions at Stanford Law School agreed to speak to me. He explained why the law school sought so single-mindedly those law students with a combination of stratospheric scores on the Law School Admissions Tests and eye-popping grades. They were not interested in interviews; they did not care very much whether Joanie or Johnny Applicant had been an Eagle Scout, a Ph. D., or president of a Fortune 500 company.
"We want the one hundred fifty best legal scholars we can find. When we are done training them, we want a hundred fifty more."
