Let’s Not Kill All The Lawyers

People who know nothing of Shakespeare delight in invoking him during drunken conversations: “first kill all the lawyers.”

The Bard’s point was that if a despot wants to immunize himself from challenge, getting rid of the lawyers would be a useful strategy.

In China during the Cultural Revolution, lawyers and other educated folk were killed or sent to “re-education” facilities, a euphemism for brutal punishment for being educated. In China today there is a shortage of college professors because so many committed suicide during the Cultural Revolution.

In Cambodia the purges under Pol Pot led to mass murders of educated people. Yes, killing the lawyers, and professors and doctors may be perceived as a way to protect dictatorships from the oppressed.

On a more positive level, for many centuries lawyers have often been perceived as champions of the liberties which protect us all, including the depraved, the guilty and the wrongly accused.

We are in a historical cycle where lawyers are not generally held in high esteem. Remember watching Perry Mason? Every week the person venally accused of a gruesome crime turns out to be the victim of false accusation, painstakingly revealed in a dramatic climax. What a hero! Perry Mason saves the innocent and reveals the guilty. Apparently, many lawyers of my generation were inspired to the profession by Perry, his secretary/confidant Stella and his effective investigator (Paul?).

It was my lot, as an attendee at the Wyoming Bar Association convention in Cheyenne this past week, to absorb a lengthy presentation by a fellow with degrees in law, theology and political science, teasing out the history of public perceptions of lawyers. His motivation to indulge in this exercise was this: studies show that lawyers, being held in public low esteem, react to taunts and scorn by holding themselves in private low esteem. Stress, lawyer jokes and poor self-esteem take their toll on lawyers. Substance abuse and depression are significant problems among the legal profession. University of Texas at Austin professor William Chriss decided to try to figure this out.

One trend he documented is that lawyers tend to be more popular during good times than bad ones. The Great Depression was not a happy time to be a lawyer. Maybe the same is happening now.

Another trend is a bit more complex, and intriguing. The history of law starts with moral laws rooted in the Bible and similar religious texts, then moves to property law as European nations shifted away from the Crown owning everything to people learning how to own things. From property law evolved the law of contracts, as peoples’ lives shifted from subsistence farming to commerce. As English and American society evolved, people dissatisfied with contracts and people who demanded remedies for negligence, particularly negligent injuries caused by coal mines, industrial accidents, car wrecks and other relatively new causes of financial ruin, developed common law remedies in the law of torts.

A tort, not a tasty confection, is a legal cause of action, a claim, for damages caused by a careless or reckless or even intentionally wrongful act. As the law of torts supplanted the law of contracts, injured people cheered on their lawyers as agents of progressive social change. Dangerous products were made more safe. Explosive coal mines were, supposedly, made more safe. Lawyers were champions.

Remember, property rights, rights to seek redress for grievances, the right to trial by jury and contract rights were all clearly in the mind of our Constitutional framers.

The insurance industry arose as a means to share risks and protect those whose careless or reckless acts injured others. Tensions arose between the insurers, who want to take your money and keep it, and the trial lawyers, who want the insurers to take your money and give it back. The insurers invented tort reform, a shibboleth for eviscerating the rights of the injured by capping their claims and making the business of litigation unattractive to lawyers. (There is certainly room to improve the system of compensating victims, but most of what passes for “tort reform” is nothing more than denying such compensation.)

Then other agents of change in our society beat the drums for new legislation to protect clean air, protect babies from every product used by or around babies, protect investors from greedy speculators, protect laborers from injuries, protect tenants from landlords, etc., etc. The proliferation of government regulations, whether you like them or not, creates risks which are not covered by insurance. There is no insurance against prosecution and fines for violating EPA rules, SEC rules or OSHA rules. Regulations are replacing the role previously played by lawyers who made products and the workplace safer.

People who are regulated resent the regulations. They hire lawyers and to their frustration, their lawyers cannot protect them. Other lawyers use the regulations as a means to sue people who are, in their minds, simply trying to create jobs and make products or provide services. This stew of frustration generates contempt for attorneys. Congress is full of attorneys; bureaucracies are full of attorneys. Let’s blame all this pain on attorneys. This is Chriss’ thesis. These social and political trends are eroding the view of lawyers as champions of valuable rights.

Hard-working two-earner couples may not have the time, or take the time, to get to know their neighbors. Television and electronic devices keep people in their homes and away from neighborhood socialization. Loud music, loud children; do the neighbors try to sort it out, or do they call the police or child protective services? As society defaults toward more impersonal government interference in our lives, people increasingly resent, well, government interference in our lives. People call for more rules and more regulations (“there ought to be a law”) while simultaneously resenting them. Cognitive dissonance is rampant. Lawyers are caught in the middle.

Mr. Chriss points out that a total lack of regulation of business leads to laissez faire extremes where all costs of mistakes are cast upon the victims, not business, whereas an excess of regulation creates huge costs for business and taxpayers while potential victims may or may not be protected. He views the jury trial system as society’s best tool to force businesses which cut corners and injure people to absorb the costs of their errors, without creating monstrous government agencies. In this world, lawyers are heroes, not villains. In this world, lawyers go home to their families tired but proud, not angry and depressed.

Although his presentation was fascinating, there were plenty of his statements which provoke questions and disagreement. But, he was reminding us that we play important roles in society, and we should feel noble about that. That was good to hear.

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