Civil Justice Memo
No. 37 April 1999
Dentists, Bartenders, and Lawyer Unpopularity
In all the movies of recent years, there have been few surer audience-pleasing scenes than the moment in Jurassic Park where the dinosaur eats the lawyer. In my theater and I suspect yours too, the audience burst into laughter and cheers. So the question we might start with is: did audiences react the way they did because Steven Spielberg had been tainting their minds against this great profession, using his movie to convey the message that it was okay to laugh at attorneys? Or did Spielberg arrange the plot to get a lawyer munched like a cherry off the top of a sundae because he knew only too well what would make audiences laugh and cheer? In other words, do lawyers have an image problem because Hollywood and the press have been picking on them, or do Hollywood and the press pick on lawyers because they know the public already starts out with a low opinion of them?
When I started giving talks on problems with the American legal system, I made a point of letting audiences know that I was not (and am not) a lawyer. This started out as a simple disclaimer, a warning that they should not expect certain types of professional know-how from me. But though it may have begun as a caveat, it soon turned into an applause line. It gets me an enthusiastic response from just about every audience that’s not itself composed of lawyers: from undergraduates and retirees, from doctors and homemakers, from liberals and conservatives. I eventually refined the line into “I’m not a lawyer, I just criticize them,” which often draws a one-word response, “Good!”
The current unpopularity of lawyers has been the subject of much hand-wringing, and no little indignation, on the part of such groups as the American Bar Association (ABA). To understand the ABA’s official wisdom on why lawyers are unpopular, you must first understand what its wisdom does not hold. According to the ABA view, the prevailing low regard for lawyers has nothing whatsoever to do with the public’s having noticed and reacted against any misconduct or hubris or overreaching by the legal profession or the legal system itself. Certainly not. Lawyers have plummeted in the occupational-esteem standings not because lawyers do more destructive or useless things than they used to, not because people think they’ve nosed into too many areas of American life, not because the system gives attorneys too much power to inflict injury on their opponents, their clients and third parties. No, it’s that the public has been terribly misled. If it only knew more about how the American legal system worked, it would not be so upset with lawyers. Its unfavorable view of lawyers arises from misunderstanding, or, if you will, false consciousness.
If the problem is bad public relations, then the solution must be better public relations. And so our bar establishment has labored mightily to come up with talking points and slogans about the good that lawyers do. One of my personal favorites is the official slogan of the 1996 ABA national convention, “Freedom, Justice, Liberty—Without Lawyers They’re Just Words.” Or, to paraphrase slightly: without lawyers, justice itself would be impossible. This slogan delights me if only because it so irresistibly calls to mind the slogan used by one of the big manufacturers of synthetic chemicals, I believe, back in the 1970s, when terror about toxic substances was everywhere: “Without chemicals, life itself would be impossible.” Of course in a sense this is a point very well taken: without oxygen or water or salt we’d all be in big trouble. It’s just that it may not seem very responsive to the grievance of someone who lives downstream from a factory that’s been dumping vinyl chloride.
You see the same sorts of arguments in the campaigns done by other interest groups that come under negative scrutiny from the press and buy the lower-right-hand corner of The New York Times op-ed page to talk back. “Without oil companies, driving itself would be impossible,” equally true, and equally far from satisfying as an explanation for a big tanker spill. Or “without agribusiness, eating itself would be impossible,” this after some outbreak of food poisoning. The public is smart enough to realize that whether you accept that there’s going to be an oil industry at all is not the only question to be asked, and probably not the most interesting question. It also wants to know, if you practice this line of work: how careful are you to avoid spills, and how willing are you to clean up when you do have one?
There are, of course, some more sophisticated theories as to why lawyers’ popularity stands so low. Let me call two of these the dentist theory and the bartender theory.
The dentist theory, which I’ve run across repeatedly, is that people encounter lawyers at unhappy, downright painful times of their lives. They’ve been indicted or are being audited or are involved with a lawsuit. We all know that those are among the most unpleasant things that happen to people, and so (according to this theory) they transfer their pain into anger against those who are physically present on the scene as they go through those ordeals.
I disagree with the dentist theory, in part because, as Professor Amy Black coincidentally documented in the research she described during this panel, dentists themselves are not especially unpopular in America: most poll respondents are not notably critical of that profession, even if they wince at the memory of what they endured on their last visit. One reason, I think, is that the vast majority of dentists try hard to minimize the pain they inflict. People shop for dentistry services for themselves and their loved ones, and so well does the market work that dentists compete with each other not only as to the quality of the final work but also in promising to reduce the pain to a bare minimum. They boast of being extra-considerate, of practicing “gentle” dentistry, of “dentistry for cowards.” I have yet to see a billboard advertising “gentle family lawyering,” or “painless lawyering,” or “law for cowards.” Maybe those would be the ads for the mediation services. But then when people buy “legal services” they are often buying services to be inflicted on their current enemies, and services that minimize unnecessary pain may not be what they’re looking for.
Which brings us to the bartender theory, which is somewhat more plausible and no doubt has at least a grain of truth in it. This is the theory that clients, after all, actively seek out a lot of the worst things that lawyers do. The vindictive spouse goes looking for the carpet-bombing divorce lawyer; the business that wants to stiff its creditors looks for the scorched-earth practitioner; the person nursing a dubious personal injury claim looks for the lawyer who is best at exaggerating. These clients may turn away the lawyer who seems too gentle, too civilized, too considerate. When I got to debate Alan Dershowitz on television, he was running into a lot of flak from the audience at one stage because he had been discussing techniques that came up in his criminal defense practice, and of which he seemed to approve, some of which struck the audience as taking advantage of tricks or loopholes—techniques like telling the client on first meeting: don’t advise me whether you’re guilty or not, it would tie my hands to know; leave me free to come up with the best defense. The audience was not happy at all with that, but Dershowitz came back with a line that did give them pause; he said go ahead and boo, but if your child were arrested and charged with something, you would want a lawyer just like me.
As a predictive matter, surely he was right. Many or most of them—of us—up against the wall, would call the lawyer whose ethical code allowed him to, shall we say, retain a lot of options in vigorous representation. I can’t improve on Judge Laurence Silberman’s great line about this: just because we may play the horses doesn’t mean we have to respect bookies.
So, as I say, there’s a grain of truth to the bartender analogy. Many of us do head for the bartender who mixes the stiffest drinks, rather than the drinks that may be best for our own health or society’s. (I trust you will henceforth have a new image in your mind when you read about the leadership of “The Bar.”) Nor are bartenders or bookies the only occupations we might choose as analogous if the function of lawyering is merely to cater to the frailties of human nature. You might indeed raise the “tobacco company analogy;” those companies, too, respond to a genuinely pre-existing consumer demand, providing a product that’s voluntarily bought even if some of the customers may later regret buying it. To be sure—to revert to an earlier point—no one is forced to drink beverages or place bets or smoke cigarettes foisted on them by their adversaries. It’s worth keeping in mind, lest we be tempted to compare legal practice to a market, that a majority of the consumers of the product aren’t taking it voluntarily. No wonder we see so many Mickey Finns and exploding cigars.
Any theory of the unpopularity of the legal profession must come to grips with three observations:
One is that the unpopularity of the bar is not merely some lingering prejudice hanging on in the least educated or worldly parts of society, among persons who may never have gotten to know lawyers or work with them on a practical basis. Indeed, the evidence is abundant and disturbing that the more continuing contact people have with lawyers, the more vocal and fully formed a critique they tend to give of them. Notoriously these days, doctors, accountants, and practicing business people are among the groups most upset with lawyers and most convinced that self-regulation of the legal profession has failed. This is not a matter of being unpopular because people don’t know you and only read bad things in the papers.
Second—and contrary to both the dentist theory and the bartender theory—lawyers as a profession have not always been nearly this unpopular. If you trace this tension back through American history, in fact, you find an interesting pattern: the abuses we see today are to be sure not new, but they were formerly considered to be more on the fringe, rather than typical of the profession. Nineteenth-century America, especially the turbulent big cities, did generate many celebrated criminal cases in which, every so often, demagogic lawyers managed to spring obviously guilty malefactors. And there were abuses in civil law, including appeals to sympathetic local juries for unreasonably high damage awards, that do seem to foreshadow elements of today’s runaway civil litigation. There was some solicitation and stirring up of business by lawyers, and also hardball tactics of various sorts. Yet there was a feeling that the legal profession as a whole stood against such tactics, that the unscrupulous lawyer was an exception looked down on by most in the profession and under pressure from them. Now the public senses that the bad lawyer has much more of an open field.
And third, the legal profession continues to enjoy a high degree of public esteem in most foreign countries, as it used to here, though it goes without saying that the operations of law are painful in other countries, and though human nature, including the urge to sic a mean lawyer on one’s opponent, is also nothing unique to America.
Think about it. Until recently, the general norm here as throughout the world was for law to be a very highly respected profession, one you would be pleased for your children to enter aside from the likely financial rewards. It is recently, in the United States, that the profession’s respect and prestige has fallen from its historically high level, even as its financial emoluments have increased.
So, what has happened in the last 20 or 30 years in the United States? I try to give part of the answer, at least, in my 1991 book, The Litigation Explosion, endeavoring to detail some of the ways we’ve drastically broken with many of the principles that had long been thought suitable to govern a legal system and the legal profession.
• We have enacted countless new laws, we use them to try to control more of life, and these laws are often vague, not clearly spelling out what conduct is wrongful and what the legal consequences might be of overstepping the line.
• We have expanded damage theories to the point that we are willing to countenance the mulcting of defendants of amounts that all previous American generations and the citizens of all foreign countries would consider sheerly fantastic.
• We have liberalized procedure. As long ago as the 1930s we began to embrace the system of notice pleading, in which you can drag someone to court without saying what he may have done wrong. In the 1970s we drastically liberalized discovery, making it far easier to demand the filing cabinets of your opponent. Through the “long-arm” jurisdiction revolution, we liberalized forum-shopping so that you could shop around for whichever judge or jurisdiction is most hostile to your opponent or most slanted toward your own ideological view.
• We liberalized the admission of expert testimony to allow lawyers to keep a scientifically weak case alive by introducing the testimony of partisan, fringe experts whether or not they reflect mainstream thinking in the relevant discipline.
And so on down the line. At the same time, we were systematically revising the role we saw the legal profession as playing in society, and not coincidentally the rules of ethics that should govern it. There had always been a balance between acting as an officer of the court, which might call for refraining from many steps that advanced the interests of one’s client but not those of justice, and zealous representation, red in tooth and claw. Now, after years of eroding the old standards, we have reached the point where many, many authorities, not just practicing lawyers but also some professors who specialize in legal ethics, look on zealous representation as the main goal, to the point where some maintain that lawyers have no particular duty of care to avoid misleading a fact finder or inflicting tactical harm on an opponent’s or third party’s pocketbook or reputation.
We have drastically liberalized lawyers’ rights to take a share in the claims they sue over, starting with the plaintiff’s contingency fee, but increasingly also through the development of contingency fee arrangements on the defense and transactional side. Rather than get along on boring old hourly fees, we now encourage them to get rich if they obtain an unusually good result and go hungry if they obtain an unusually bad one. By making the outcome one of feast-or-famine rather than more-versus-some, we hyper-incentivize them to do what it takes to win, even though many of those things are far from attractive. And we’ve also drastically liberalized the scope for class actions, citizen suits, and other actions which encourage a lawyer to step forward with no real clients at all, acting not as a friend to any particular client but only as a friend to himself.
It’s an error to presume that the ethical dilapidation and the deprofessionalizing trends are unrelated to the trends in procedure, evidence and damages. Behind them all is a unified view of litigation: as basically a good thing to be encouraged, because the more lawsuits go forward, the more justice supposedly we’ll see done.
The public disagrees with that, and it perceives that the result of all these changes is not simply to encourage destructive wrangling but also to give lawyers more power. Indeed, lawyers in America have more power to ruin your life than they do in any other country. Nowhere else can a lawyer show up, dump a pile of papers on your front lawn, tie you up for years, responding to untold damage to your business and reputation, and then walk away with so few consequences if he is proven wrong. Lawyers, I submit, are so widely disliked in this country because they are so very widely, and correctly, feared for the power without responsibility they wield.
So the question I leave for the bar associations is: is your profession mistrusted because it’s misunderstood? Or because it’s understood too well?