Author’s Note: As my self-identification below indicates, I wrote this as a second-year law student, so it would have been sometime in the last four months of 2002 or the first four months of 2003. As evidenced by the fact that, notwithstanding the considerable passage of time since then, I’m still not a lawyer, perhaps I have yet to answer the question it poses. Or perhaps I have answered it in the affirmative, which explains my ambivalence about taking the “Bar Exam Plunge.” Or, perhaps I have answered it in the negative—which puts an onus on me to do something about it where my own status as a (non-)lawyer is concerned. I lean toward the third option—if-and-when I can actually get there! Sigh! Heh!
Is “Screwing People Over” What the Law is All About?
Some Random Thoughts (Misgivings?)
About the Study and Practice of Law
By Ken K. Gourdin
Second-Year Student, S. J. Quinney College of Law at the University of Utah
In answer to the question posed above, I am certain that all of the faculty and staff (and hopefully most, if not all, of the students) here would answer with a resounding, “No!” But for the very rarest of exceptions, that certainly hasn’t been the message which predominates in our class discussions or the cases we’ve read. But I sometimes wonder if, outside the insular bubble of legal “theory” and “hypothetical” questions in which law students live, the answer to that question is entirely different.
Seeds of Disillusionment
Many law students enter law school driven by the notion of “making a difference,” of seeking “truth” and “justice,” and of righting wrongs. As they look at the difference between the study of law and the practice of it, as they view the differences between the worlds inside and outside of the insular bubble, and as they ponder the “ideal” solutions to problems and questions which the law attempts to remedy as compared with the actual results which the law and its application too often produce, many law students become disillusioned.
While truth and justice are worthy ideals, and while court proceedings may appear superficially to be concerned with questions of innocence on the one hand, and guilt (or liability) on the other, what really matters is what can be proven. The plaintiff or the state bears the burden of proving, beyond a reasonable doubt or by a preponderance of the evidence, that guilt or liability attaches to the accused. Absent such proof, the actual guilt or liability of the accused is moot. Furthermore, questions of guilt or liability may not rest on the actual evidence presented, but rather on the effectiveness of the presentation itself. Abundant evidence ineffectively presented often results in verdicts which are contrary to that evidence.
Still, one of the tenets which undergirds our justice system (whether it be a fiction or not) is that a fair and just result is most likely to be reached by a process of opposing counsels zealously advocating for the interests of their respective clients. This discontinuity between the results our justice system strives for and the results it actually achieves is a primary reason why the layperson “on the outside looking in” often concludes that the law is set up as a contest to see “who can screw whom.” But just because we, as law students and lawyers, understand this process better than the layperson doesn’t mean that we can escape resolving the conflict it engenders, especially given our ethical obligations to clients–obligations which often transcend questions of guilt or liability, as important as those questions are. Although this may sound somewhat naive, I may have to console those I represent for whom a full measure of justice is denied here that the inequities which befell them here will be rectified in the hereafter.
Yes, students experience extreme stress in preparing for class (“I hope the professor doesn’t call on me today!”), and even more stress in preparing for finals (“How am I ever going to learn all of this stuff?”). Likewise, there is great stress involved in the practice of law (“We have to respond to this motion by when ?”; “The judge said (did) what?”). But if we were to take a survey of those who have dropped out of law school–and of those who completed it but are not currently practicing law–I suspect we would find that the stress involved in the study or practice of law was but a minor factor in their decision to change careers.
“Screwing People Over”
At some point, we will all have to ask ourselves whether we view the law as nothing more than an opportunity to “screw people over.” For some of us, that moment has already come. Perhaps some of my student colleagues have already answered that question in the affirmative. Others of us are so busy as law students that we haven’t stopped to ask ourselves that question yet. If we don’t do so as law students, we will do so as lawyers, and many former lawyers are just that because they answered that question “Yes.”
Many of our professors could command high six-figure or perhaps even seven-figure salaries as lawyers, amounts which are many times what they make teaching. But perhaps one of the reasons why our professors are professors first and practitioners second–if at all–is because they, too, answered that question “Yes,” and decided they didn’t like the implications of that answer. And of course, the lawyer jokes started for many of us as soon as our friends and family heard we had decided to apply to law school. As we all know, the theme of many of those jokes, either explicitly or implicitly, is that “screwing people over” is indeed what the practice of law is all about.
Although it’s not in my nature to try to “throw my weight around,” I confess that I have occasionally told friends that I look forward to the day when I’ll be able to use the phrase, “Oh, by the way, I think you should know I’m a lawyer,” in disputes with parties who lack legal training–or perhaps even as a way of altering the future treatment I might receive from lawyers who are unaware of that fact. In the case of non-lawyers, I admit that it’ll be nice to know I have that “trump card,” whether I “play it” or not.
Although I can’t play the trump card until I’m licensed to practice law, even my limited knowledge as a law student has put an interesting spin on a couple of disputes I’ve had. A former landlord of mine had difficulty grasping the concept of the implied warranty of habitability when I was without hot water for a week during late fall last year. Although I felt justified in withholding rent during the time the problem persisted, he countered by essentially saying that a provision wasn’t written into the four corners of our contract, he didn’t feel bound to honor it. Besides, he said, I was the only one of his seven tenants to complain, my fellow residents all understood that the building was old, and these things were bound to happen.
I suspect that the truth of the matter was somewhat different. He was more than willing to let regular maintenance on an old water heater slide, gambling that even if something were to happen, his tenants would be ignorant of their rights, or would be disinclined to assert them due to a lack of resources or a desire to “avoid the hassle.” Fortunately for him, he was right, although I would have loved to find out how his argument–“Your honor, my tenants knew the building was old when they moved in and they, not I, assumed the risk that it would become uninhabitable, ‘Implied-Whatever-of-Whatever’ notwithstanding”–would have held up in court.
In the second dispute, I bought the ROM-Law CD from the Bookstore, tried to install it on my computer which has had a longstanding date-and-time problem, then discovered the software “marries” itself to the operating system to start counting down the days to the one-year expiration date of the software’s license. I wanted to uninstall it from my desktop and reinstall it on my laptop but couldn’t, because the software wouldn’t “divorce” my desktop’s operating system once it was “married” to it.
In this case, my adversary was a lawyer–he even took pains to pointedly apprise me of that fact–but the provision at issue in the licensing agreement which he said was “clear on its face” was the very one which I felt was ambiguous. In hindsight, I don’t recall whether the licensing agreement permitted installation on “one computer only,” or whether it could be read to mean “one computer at a time.” Still, even if the licensing agreement wasn’t in my favor, it’s highly unusual (at least in my experience) for software to “marry” itself to the operating system such that it can’t be uninstalled if there’s a problem–so unusual, in fact, that I’d be interested to know what a court would have to say about this practice.
In both of these cases, instead of according me the opportunity to use the law as a shield against injustices perpetrated upon me, my adversaries were quick to use it as a sword upon which they tried to impale me–which is a nice way of saying that they didn’t think twice about using the law–or at least, their interpretations of it–to try to “screw me over.”
“To The Death?”
In both of the foregoing examples, although I’m not a lawyer, I did attempt to use knowledge gained from my legal education to leverage my adversaries. But what about my future dealings with fellow lawyers once I do become a lawyer? Will our interactions be the legal equivalent of “no-holds-barred, bare-knuckled, anything-goes ‘Ultimate Fighting’”? Will I be perceived as nothing more than “fresh, raw meat” upon which they can satisfy their bloodlust? Will there be any room for civility–let alone for “mutual professional respect”–or are they always going to be looking for any “weak spots” and plotting the best ways to exploit them? And–to voice the concern of perhaps every law student–will I ever “arrive”? Will I ever be perceived as a member of “the club”? If so, how and when?
I had the unique opportunity–though I’m not sure I’d commend it to anyone else–of being part of not just one, but two entering classes here at the law school. I’m not sure if it’s a product of imagination–the legal equivalent of an “Urban Legend”–or if there’s some truth to it, but there is a perception here that my “first” first year–a perception shared by at least one other member of that class with whom I have spoken on the subject. The perception is that first year for the Class of 2002 in many ways resembled the “Ultimate Fight” described above.
This is so, notwithstanding the fact that “90% of the class can’t be in the top 10% of the class.” This is so, even though law school is likely the first–and last–academic experience we’ll have in which how hard we worked likely won’t be reflected in our grades (and thus, even if one deserves an “A,” chances are good that s/he won’t get it). This is so, notwithstanding the fact that even if one becomes King or Queen of this comparatively-small hill, there are those elsewhere who have conquered much bigger hills, in competition with much larger student bodies. This is so, notwithstanding Dean Matheson’s Orientation reminder that today’s fellow student is tomorrow’s opposing counsel, or perhaps even the judge who’s hearing the case–and hence, although it might be tempting to burn a bridge here and there among our student-colleagues, it’s probably not worth it. And this is so, notwithstanding the fact that–with the possible exception of our first job out of law school–nobody’s going to give a damn what kind of grades we got here.
Still, even if most of us look at law school as something less than an “Ultimate Fighting Death Match,” we miss out on opportunities to validate our experiences here–and to validate each other–in favor of maintaining the facade that, “I was one of the few who got an ‘A’ out of that class!” Or “I’m sure I have a higher GPA than you (or him, or her).” Even though I got a good enough GPA to get into law school, I never thought grades were all that important. I’ve gotten As out of classes where, honestly, I didn’t learn all that much, and I’ve gotten Bs and Cs out of classes where just the opposite was true.
I have tried more than ever here to remember that grades aren’t a function of what I’ve learned and what I know. No matter how much anyone might hesitate to admit it–especially professors–the importance attached to “The Curve” is often ephemeral–if not downright ethereal. As I’ve already mentioned, what this means is that the grade one deserves will probably be vastly different from the grade one gets. Still, the fact that “The Curve’s” importance is often exaggerated doesn’t make my struggle to meet it any less discouraging sometimes, especially given that most of us seem more interested–wittingly or not–in “blowing smoke” than in validating one another.
Lawyering Effectively While Acknowledging Our Humanity
Although we are all human, I sometimes wonder how willing we are to acknowledge one another’s humanity. We’ve all heard–or if we haven’t, we will–that we are not our grades. But do we believe it, and have we internalized it? Is the student you’re looking at over your shoulder something more than “the competition”? Will the lawyer on the other side of the aisle be something more than an “adversary”–an “enemy”? Will we discover what it is that will enable us to fight tooth-and-nail with each other in ritual, court-refereed combat one minute–and go out together for drinks the next–before we burn too many bridges?
Pondering these and other questions has led me to what may, on the surface at least, appear to be a surprising conclusion. I have a confession to make. I don’t want to be a law student, and I for sure don’t want to become a lawyer.“You don’t want to be a law student?” the reader may ask in shocked dismay. “You don’t want to become a lawyer? Then what, precisely, are you doing in law school?”
Let me explain. While it is true that I came here to study law, I did not come here to be a law student, and I think there’s a big difference. I also believe there’s a big difference between practicing law and becoming a lawyer. In both cases, the former is something one does, not something one is. At the root of many lawyer jokes is the unspoken conception–only partly in jest–that lawyers are somehow less than human.
If we’re honest, we’ll have to admit to ourselves that law school has changed us (or that it will)–and not always for the better. I once heard a professor at another law school describe the process like this: “Before law school, when you hear about an accident, your first thought is likely to be, ‘Gee, I hope everyone’s okay.’ During and after law school, hearing of the same accident, your first thought is likely to be, ‘I wonder who’s liable?’” I’m reminded of the med school orientation lecture in the movie Patch Adams, in which the med school dean says, “We don’t want human beings. We’re going to train the humanity out of you and make you into something better. We’re going to make doctors out of you.” I wonder if something similar to that might sometimes happen in law school as well.
Conversely, insisting that I am a person who happens to study law–or, once I graduate and pass the bar, that I am a person who will happen to practice law–forces people (myself included) to acknowledge my humanity over my profession. The narrow titles of “law student” and “lawyer” do little, if any, justice to me as a human being. While I am human 100 percent of the time, I am a law student (or a would-be lawyer) a comparatively smaller–indeed, insignificant–percentage of time. While I find the study of law fascinating (if sometimes frustrating), and while I anticipate a fulfilling career as a lawyer and as a public servant, my employer will have a comparatively limited claim upon my time, and I intend to practice law for a living, not as a way of life (and believe me, there are many law students and lawyers for whom it is the latter rather than the former).
Who’s Too Naive–or Too Cynical?
You might scoff at the notion that public service has anything to do with lawyering. “Public servant?” you might snort derisively. “Sounds very idealistic. I’ll try to remember that when I’m working my butt off trying to bill 2,000 hours a year for ‘the firm.’”
Ah, the proverbial–almost mythical–firm! I can’t speak for you, but I’ll be in my mid-thirties by the time I graduate, and I have no intention of cloistering myself in a library for ten years doing someone else’s “dirty work” until they think I’ve “paid my dues” long enough to finally see the inside of a courtroom. That’s why I intend to practice in the public sector, a much shorter route to the inside of that courtroom.
Maybe I haven’t overcome all of your cynicism yet. “Yeah, sure,” you might continue to snort. “That’s what you say now. Wait’ll you have to start paying back your loans! See you at ‘the firm’–in the library! Heh-heh!”
But I hope we’ve all heard the stories from the people who graduated from law school and spent several years in the “real world” before finally being liberated by the discovery that there’s more than one way–the “traditional” way–to use a law degree. The only problem is that in a thousand unspoken, subtle, almost-imperceptible, perhaps-undefinable ways, law school is geared toward that limited, unidimensional, “classical” perception of what it means to be a lawyer. Is money really the “bottom line”? Am I going to have to trade my idealistic vision of what I want to do for the more practical consideration of what I have to do, just to be able to pay back my loans? I’ll admit, that’s something which worries me. Maybe, as others have done, I’ll “sell out” on my idealism to work ten years for a firm to pay off my loans–and make the hoped-for pile of money on top of that–and then ride off into the sunset, leaving the law behind. I can only tell you what I plan to do, not what I will be doing. Only time will tell.
I doubt I will achieve many (any?) of the “traditional” hallmarks of a “successful” legal education–high class standing, Law Review, a coveted clerkship–but surely there must be more to law school than any of those things. How many lawyers never achieve any of those hallmarks as law students, yet still go on to become successful, respected members of the bar? I dare say this is true of “most of ‘the other 90 percent’ of the class” at nearly any law school. Yet these measures of “success” are woven into the fabric of time-honored tradition among law students. I say that no matter how revered the myths surrounding law school are, they’re still myths.
In summary, I have resisted assimilating myself more fully into “the culture of the law” for the following reasons: (1) because of the dichotomy between the law’s ideals and its results, a dichotomy which–rightly or wrongly–engenders the notion that “screwing people over” is indeed what the law is all about; (2) because I wonder where the line lies between zealous advocacy and professional courtesy and civility; (3) because I wonder if, how, and when I will win admission to “the club”; (4) because we’re too often interested in “blowing smoke” instead of validating one another; (5) because of the disparity between the importance which others often attach to grades, and the relative unimportance which I attach to them; (6) because I want to study and practice law–while retaining my humanity; (7) because I still cling to the notion–one which might be naive–that public service is not antithetical to the law, while I wonder if others share that view; (8) because, notwithstanding the loans I’ll need to repay when I’m done with law school, I hope to avoid selling my idealism in return for the cynical notion that practicing law really is just about the money, after all; and (9) because even though “90 percent of the class” at most any law school won’t achieve the “traditional” hallmarks of law school success, they’ll still go on to be successful lawyers.
This essay violates a cardinal rule–an unspoken, unwritten, barely-acknowledged rule, but a cardinal rule nonetheless: no matter how many doubts, fears, or misgivings one has about the study and practice of law, these are best left deeply buried. It’s best not to acknowledge them–especially not in writing! (After all, one never knows who will see this “confession” as “just more blood in the water.”)
I guess “the cat’s out of the bag.” Might as well “go with the flow.”
I wonder if anyone else sees himself or herself in anything I’ve written here. If so, I wonder what–if anything–can and should be done about it.