Do We Need the Legal Profession?

“The first thing we do, let’s kill all the lawyers,” was the proposal in one of Shakespeare’s plays. And Ives, the patron saint of French lawyers, was described in the 13th century as ‘a lawyer but no crook, a thing which astonished the people.’

Negative views of lawyers and legal systems are as old as history. But such one-sided (and often amusing) quips are not altogether fair. Many lawyers are conscientious and knowledgeable men who use their abilities to help deserving people who are in trouble.

Obviously lawyers and legal systems cannot cure all the ills of modern civilization. If the legal system is not wholly satisfactory, consider the words of a Canadian judge: “Confusion in the judicial system reflects the confusion of society.” Like all human institutions, legal systems have a good side and a bad side.

On the bad side, law enforcement is irregular and often ineffective. Statistics show cluttered courts, expensive lawyers, unequal justice, unpunished criminals, a rising crime rate. Public confidence ebbs.

On the good side, laws and law enforcement are essential to maintaining an orderly society. They benefit all the people, not just those who go to court. The fact that there is law enforcement, even with its weaknesses, does act as a measure of restraint on many potential lawbreakers. As a result, the person and property of most people in civilized communities are relatively safe. Commercial business is able to function, producing goods and foodstuffs, because the legal system enforces contracts and payment of debts. Murderers, robbers and vandals are at least restricted, if not effectively halted, in their evil practices.

Thus it becomes apparent that, although often taken for granted, the legal profession and the law offer valuable services to humanity. Even so, the courts, judges and lawyers are held in low esteem by many. Why?

Why Lawyers are Under Fire

IN 1978, a Pennsylvania judge, Lois G. Forer, in an article entitled “The Law: Excessive Promise and Inadequate Fulfillment,” wrote: “The legal profession is today at an all time low in public esteem . . . Disillusionment and dissatisfaction with the administration of justice strike at the very heart of our national well-being and vitality.”

In England, too, critics raise serious questions. The introduction to a study of the legal system there asserts:

“We are taught to have a confident faith in British justice . . . We argue that there are some who never obtain justice.”

Lawyers are influential at all levels of government—in the legislature, in administration, on the bench and at the bar. They also have a monopoly on the practice of law. So the legal profession has to accept some measure of responsibility for legitimate complaints. Consider some of the more common charges:

‘One Law for the Rich, One for the Poor’

Back in 1905, U.S. President Theodore Roosevelt said:

“Many of the most influential and most highly [paid] members of the bar . . . work out bold and ingenious schemes by which their very wealthy clients . . . can evade the laws which are made to regulate in the interest of the public.”

Almost six decades later, little had changed when Attorney General Robert Kennedy said: “Lawyers must bear the responsibility for permitting the growth and continuance of two systems of law—one for the rich, one for the poor.”

Of course, lawyers are not responsible for the fact that there are rich and poor in this world. And they are by no means the only ones whose professional services often cost more than an average working person can afford. But the cost of professional legal services often does put justice beyond the reach of the poor, or even the average wage earner.

As a New York Times news analysis of the legal profession observed: “Critics, both in and outside the profession, contend that there is too much law and too many lawyers and that lawyers are pricing themselves out of the market.” And Chief Judge Charles D. Breitel of the New York State Court of Appeals, speaking of those lawyers that “just grab, grab, grab,” warned that “they may be killing the goose that lays the golden egg.”

Attempts to rectify the inequities caused by high-priced legal help, such as legal-aid systems, have had mixed success. In correcting some inequities, they may create others. In England and the United States, the result often has been that only the very rich and the very poor can afford to go to court. Many times the middle class that does not qualify for legal aid finds legal services beyond its means.

Slow, Complex Court Proceedings

The complexity of modern society and the growing number of laws combine to multiply problems and strain court facilities as never before. The slowness of the system often discourages those who use it. As Chief Justice Warren Burger of the U.S. Supreme Court said: “People with problems, like people with pain, want relief, and they want it as quickly and inexpensively as possible.” Yet these goals are seldom reached, which contributes to criticism of the law and legal institutions.

Drawing attention to another cause of resentment, Time magazine cites a former presidential aide, attorney Fred Dutton, who says: “Lawyers are paid to complicate, to keep a dispute alive, to make everything technical.” He notes that one suit over proper labeling of peanut-butter jars took 12 years, involving 75,000 pages of documents and a 24,000-page transcript! This is not to say that all lawyers make a practice of this, but serious abuses occur often enough to create an impression that is detrimental to the profession.

Some lawyers may take on too many cases and take steps to advance each lawsuit only when the client calls. One practitioner admitted: “If the client keeps after his lawyer, it can mean a difference of months of waiting time saved.” If you have that kind of lawyer and if you want your case to proceed rapidly, you may need to keep calling him. On the other hand, it may be that your lawyer needs fuller cooperation from you to expedite matters. Have you given him all the information he needs? Do you pay him on time?

Conscientious lawyers who work efficiently at reasonable cost for the interests of their clients can be a real source of peace of mind and bring credit to their profession. However, even such men must operate within imperfect legal systems that may promote moral injustices due to their very nature.

Adversary System: Obstruction to Justice

Have you ever felt a sense of frustration when hearing of an apparent miscarriage of justice in the court system? This may be owing to the fact that at the heart of Anglo-American jurisprudence is the adversary system. This system is based on the theory that justice and truth will emerge from the clash between two opposing viewpoints. Of this system, New York lawyer Abraham Pomerantz observed:

“We boast about it, but it’s a very mischievous system designed not to achieve but to frustrate the truth. Each side pulls out the facts that help and ignores those that don’t. Out of that come confusion and distortion, and the cleverer guy wins.”

Each side has a lawyer to fight for his client. In many cases there is no clear-cut moral right or wrong on either side. But the adversary system tends to ignore moral positions and to encourage lawyers to fight for whoever pays their fees.

“So lawyers who belong to a public profession with broad social responsibilities,” writes Wellesley College law professor Jerold S. Auerbach, “proclaim client loyalty as their highest obligation (when they really cherish loyalty to a client’s fee).” This, he goes on to show, points up a fundamental flaw in the adversary system: It “is ill equipped to consider the social good, beyond the implicit assumption that every fight and any winner is good for society.”

This helps one to understand how, from the layman’s standpoint, seemingly absurd court decisions can arise. The lofty ideals in statutes designed to give every possible defense to the innocent and protect the honest can be used very effectively by clever lawyers to help the guilty and the dishonest as well. This is a paradox of man-made legal systems for which lawyers cannot be held wholly responsible. Though justice is the ideal, what often happens in practice among imperfect humans is that the concept of moral right and wrong is replaced with what is “legal.” Describing what he as a law professor sees taking place, Jerold Auerbach says:

“Each year almost 100,000 [American] students are taught to think like lawyers. Teaching someone who for twenty-one years has thought like a person to think like a lawyer is no mean achievement. The lesson requires suspension of belief that right and wrong have any meaning beyond what the adversary process and legal system decide.”

The Lawyer’s Dilemma

Such a viewpoint toward moral values in legal training poses a dilemma for conscientious law students. “I am troubled that Harvard [Law School] pays only minimal attention to ethics in the training of future lawyers,” wrote a graduating law student in an essay published in the New York Times. “In the field of legal and personal ethics, we are left to our own instincts—in my own case, inadequately examined instincts.”

Another aspect of the lawyer’s moral dilemma is voiced by New York criminal lawyer Seymour Wishman: “Fighting as vigorously and resourcefully as possible to win for one’s client is in the highest tradition of the profession. The less worthy the client, the more noble the effort.”

Lawyers who subscribe to this principle may defend people whom they personally know to be criminals of the worst kind, or serve the business or other interests of clients who have morally questionable goals. “Many of my clients are monsters who have done monstrous things,” admits lawyer Wishman. “Although occasionally not guilty of the crime charged, nearly all my clients have been guilty of something.” Many such persons are free to prey on society because they have obtained the services of a “good” lawyer.

Said a Texas prosecutor of one such lawyer: “He’s good, he’s very good. But on account of him, there are a couple dozen people walking free in Texas who wouldn’t blink before blowing somebody’s head off. He’s a menace to society.”

This noted lawyer’s response illustrates the moral weakness of present imperfect human legal systems: “I sleep fine at night. It isn’t my job to be judge and jury, but to do the best I can on behalf of the citizen accused.” Yet there are lawyers who do grapple with this moral quandary.

Many lawyers, however, have evidently concluded that the right thing is to avoid making any personal moral judgments, instead letting the legal process itself be the final arbiter—right or wrong. Whether lawyers, with their special knowledge of client matters, should properly act in behalf of those whom they personally know to be wrong is a dilemma of the profession.

In the view of some, the trend in legal practice seems to be to make use of any “technical” defense available on behalf of one’s client, whether he is innocent or guilty. But lawyers may reply: ‘Why are we to be condemned because we use the rules that have been established by law?’ The answer goes back to that moral dilemma that faces those in the legal profession.

However, it also needs to be observed that, without a doubt, such technicalities have saved many honest and innocent persons from miscarriages of justice. In some cases the lawyers who handled the cases were convinced that their clients were innocent, and that is why they used all the means legally available to help them. Had they not, innocent persons might have been condemned.

Nevertheless, many feel that the situation is as U.S. Supreme Court Justice Harry Blackmun has said: “The balance has been missing. The compass has been askew.” He urged the legal profession to renew its commitment to “what is just and moral as well as barely legal.”

In the meantime people may need to avail themselves of the wide variety of beneficial services that are provided by the law or lawyers. What is the best way to take advantage of the services available? The next article will consider this.

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“People with problems, like people with pain, want relief, and they want it as quickly and inexpensively as possible.”—U.S. Supreme Court Chief Justice Warren Burger.

“I Need a Lawyer!”

WHAT do you do when faced with a legal problem? You may quickly realize the need for skilled help.

Suppose your car has been stolen and run into a tree. The thief is in prison, but now who pays to repair the car? And for the rental car that you need in the meantime?

Perhaps your son has been arrested. Apparently it is a mistake. How can you get him released pending investigation? How do you prove that he was not the guilty party?

How does a deserted wife get maintenance for herself and the children? If divorced, how can she be sure there will be equitable division of the family assets, including the home?

A man has died leaving a widow and three children. He had a small business. The business, now under control of the former foreman, soon starts losing money. What should the widow do to prevent the business and the husband’s estate from being swamped by debts?

The problems that people have, both deserved and undeserved, are unending. Some terrible things can happen to those who do not know how to protect themselves. A competent lawyer may be able to find a solution to problems such as these and many other legal questions that can plague people in today’s complex world.

Why a Lawyer Can Help

A lawyer spends years at law school to gain a basic understanding of the legal system. After that his experience in actual practice helps him to solve many problems effectively. Another asset that a respected lawyer may come to have is the trust of officials, judges and businessmen in his integrity and good judgment. Behind him, too, may be a backup system—partners for consultation, a library of legal references, younger lawyers, secretaries—all part of the legal organization needed to get things done.

Hence, it is not just time that a lawyer has to offer. All his assets must be considered when setting legal fees. So it would be unfair to criticize a lawyer’s fee merely because you do not understand or see everything that he does for his clients.

Before choosing a lawyer to help you with your particular problem, you should have some understanding of the different fields of law so you can ask whether your case is within his type of practice. The complexity of present-day life and business affairs has led to increasing specialization in legal practice. A lawyer who was effective in purchasing your friend’s house or probating a will may not be the right man to conduct a personal-injury suit or a malpractice action.

The Different Fields of Law

One field of law involves transactions where there is no argument, such as buying and selling houses, making wills, administering estates, financial settlements arising from uncontested divorce; and, in the commercial world, incorporating companies, loaning and collecting money, making contracts, and so forth. Such legal matters seldom go to court and are classified as uncontested or “noncontentious.”

In England and certain other countries, the legal profession is divided into two sections, barristers and solicitors. Solicitors are office lawyers; barristers plead in court. Where the profession is thus divided, lawyers are not allowed to practice in both capacities. However, in the United States, they may.

Questions and disputes that normally have to go to court because the parties cannot agree come under another field—“contentious civil law.” This includes motor-accident cases, contested divorces, enforcement of contracts and other matters that involve disagreements. Disputes with governmental bodies over taxation, zoning, building permits and business licenses are also areas of contentious civil law.

The loser in such cases can be ordered to pay money to the winner, or, to hand over a car or a piece of property. But the civil judgment is against his assets. He cannot be sent to prison if he does not have the money.

Criminal law covers threats to the public: theft, fraud, violence, trafficking in drugs, murder, and so forth. Punishment can be by fines, imprisonment, or even death. Enforcement of criminal law in reality provides the shelter that protects society from the storm of lawlessness that could otherwise destroy public order.

Finding the Lawyer That You Need

If you need a lawyer and do not know one, make some judicious inquiries. Do not be uneasy about asking questions. You could call the bar association or legal-aid office, if there is one. Often, a local businessman, a tax consultant or a personal acquaintance may be able to direct you to a lawyer with the needed skills. Or you could telephone some law firms to ask what type of law they practice. In some places, lawyers can now legally advertise their specialties, even showing price scales.

If you make an appointment to see a lawyer, do not feel obliged to retain the first one you meet. Briefly outline your problem and see what he proposes. You can reflect on the matter or even interview another practitioner before deciding whom to use. However, you may be charged a consultation fee for your first interview, depending on the amount of time taken.

Do not feel awkward about finding out what the lawyer proposes to charge for his service. Would you buy a car without asking the price? For ordinary business law such as a house purchase or the incorporating of a company, there should be no problem in deciding what the charge will be. But a lawsuit, for example, involves many uncertainties, so an exact figure usually cannot be supplied at the outset. Even so, the lawyer should be able to approximate at least the range of costs, and also the rate that is to be charged.

Beware of the lawyer who promises too much in the way of sure success in a contentious case. Lawsuits are uncertain at best. Also beware of the lawyer who agrees to work for fees that are too low: he may be incompetent or not intending to give proper attention to your problem.

In many cities legal clinics are springing up. They offer routine legal services at lower prices, which they say are possible because of high volume and streamlined procedures. These clinics are often criticized by orthodox lawyers on the grounds that quality may be sacrificed at such low prices.

However, a recent University of Miami study of one law clinic’s customers concluded that “quality need not drop and may even increase” in some cases. “To the extent that, for example, the clinic increases specialization and better control over caseload,” said law professor Timothy Muris, “quality may increase.” But for some persons the emotional outlet and support offered by a more personally oriented attorney at a distressing time in their lives may be worth the extra cost.

How You Can Help Yourself

Can you be your own lawyer? The nature of the problem and your own personality and abilities will determine. If you have no previous experience and the case is important, such as divorce, custody, serious accident, or if a large sum of money is involved, then you ought to be cautious.

Another thing to consider is that one of the fundamental reasons for using an attorney is to have someone not emotionally involved and who can view the circumstances objectively. Emotions can becloud the issues and a person’s judgment.

There can also be pitfalls in such matters as wills; these could even result in a lost bequest. Sometimes the cost of using a lawyer’s special knowledge is covered many times over by the money saved in the outcome. So it is wise not to overestimate your own abilities when deciding whether to do it yourself.

But if you feel that yours is a matter that you can handle mentally and emotionally, then necessary blank forms can be purchased at any law stationers. In certain noncontentious matters, there are “how to” books, even complete self-help packets, available.

Should you get the case started and later find it too complex, it may still be possible to obtain a lawyer to overcome the difficulty or conduct the remainder of the case. However, a lawyer with experience in such matters cautions: “It almost always costs less to get the proper guidance in the initial stages of a matter than to get it straightened out after the damage has been done.”

If your proceeding involves a relatively small amount of money and is in the small claims court, you may decide to conduct your own case. In lower courts proceedings are less rigid. But it is often helpful to go to the court some time before your trial and watch how things are done. Many judges are kind to those trying to conduct their own cases.

A beneficiary of an estate thought that the lawyer’s fee charged to the estate was unreasonable. The young man talked it over with a lawyer friend who pointed out where the charges were too high. After careful preparation, he went to court himself. He was well prepared, determined and unafraid. The judge reduced the lawyer’s fee by $6,000 (U.S.).

So, in some circumstances, you can help yourself, acting as your own lawyer. Nevertheless, in many circumstances a lawyer’s expertise and services can be indispensable; and you may find the foregoing information helpful in wisely selecting a lawyer when you do need one.

Will there ever be a time when no one needs a lawyer, when the legal profession as we know it ceases to exist? The next article discusses how, even now, strides in this direction are being taken.

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Do not hesitate to ask questions. Determine the field of law the lawyer practices; see what he proposes to do; find out what he plans to charge.

Living with Law—Now and Forever

THERE are extremists who have adopted a negative and destructive attitude toward law in some countries. Nevertheless, though legal systems have many weaknesses, fair-minded people recognize the benefits that even these imperfect systems bring to the nations. The law and the courts certainly provide a means for correcting many injustices. Serious and conscientious judges have offered much wisdom and discernment in resolving legal problems.

Even the Bible recognizes the right of nations to make and enforce laws for the good of the people.

“Good behaviour is not afraid of magistrates; only criminals have anything to fear . . . The state is there to serve God for your benefit. If you break the law, however, you may well have fear.”—Rom. 13:3, 4, The Jerusalem Bible.

Accordingly, good citizens appreciate the contribution that law makes to public welfare. They do what they can to assist police, judges and other conscientious officials to maintain law and order, thereby contributing to an orderly society.

Staying Out of Court

Another contribution that citizens can make is in the matter of resolving disputes and problems where possible without burdening the legal system. In fact, many disputes could be avoided in the first place merely by making a written record of agreements. It is too easy for conversations to be forgotten or misunderstood. A memorandum of agreement need not be a complicated contract drawn up by a lawyer. The house owner can simply write the other party, for example, a painter (or, a carpenter, a mechanic, a plumber) stating: “This is to confirm our conversation of last Thursday in which you agreed to paint my house with two coats of white latex paint and the trim with green. You are to supply the paint of good quality. The work is to be completed before the end of July 1979, for the sum of $750.00 payable on completion.” A simple note of this kind would prevent much needless and unhappy contention.

But when problems do arise, many people in developed nations, and the United States in particular, seem to think that going to court is the best solution. “Can it actually be good for a society to be quick to quarrel in court?” asks Columbia University law professor Maurice Rosenberg. “Americans increasingly define as legal problems many forms of hurts and distresses they once would have accepted as endemic to an imperfect world.”

There are many problems that the law simply cannot rectify. A court may order a man to give money for the support of his family, but it cannot force him to keep working so he has money. The law cannot force either a man or a woman to show to their children the love, kindness and warmth that make a happy and balanced home. These essentially human areas of responsibility can be covered only by willing individuals themselves.

Why call in lawyers and judges to decide questions that sensible people should be deciding for themselves? By going to law, people often evade their own basic human responsibility to be fair, reasonable and kind to their fellowman. (Matt. 22:39) When this happens it can truly be said: “As the laws multiply, so also does the civilization decay.”

“Many lawyers nostalgically recall the days when a person could informally work out his problems with his neighbor and his corner retailer,” observes a New York Times analysis of the problem. Efforts along this line are being made in some jurisdictions by using impartial mediators rather than the courts to resolve many disputes.

In such cases the mediator listens to both sides and tries to work out an agreement with which they both can live. If they fail to reach an accord in this way, then often it is agreed beforehand that the arbitrator will devise a settlement that he feels is just, and this becomes binding. “The basic idea is ageold.” says The Wall Street Journal. “Primitive societies have long relied on local officials or even family members to resolve problems between individuals.”

Recourse to law, then, should be taken only when all avenues of reasonable negotiation and accommodation have failed. In such circumstances, if the case is a serious matter, with a good chance of success, a person may decide to use the courts.

Even after a lawsuit has started, however, it is good to listen to reasonable offers of settlement. Prominent American lawyer-writer Louis Nizer has put it succinctly: “There is a time to settle and a time to fight, and sound judgment in making the choice is an invaluable attribute of an adviser.”

Similarly, in his Sermon on the Mount, Jesus Christ gave some practical legal advice, setting forth principles that have much merit even today:

“Be about settling matters quickly with the one complaining against you at law . . . if a person wants to go to court with you and get possession of your inner garment, let your outer garment also go to him.”—Matt. 5:25, 40.

A settlement requires reasonableness on both sides. Seldom in any lawsuit can it be said that there is 100-percent right on one side and zero percent on the other.

Disputes Within the Christian Congregation

Recognizing that some disputes would be found even among believers within the Christian congregation, the Bible kindly, but realistically, gave guidelines for ending contention.

Jesus showed how consultation, first privately, and next with the cooperation of other witnesses to the facts, can be effective in settling disputes. (See Matthew 18:15-17.) This procedure is most practical. Thoughtful and practical lawyers will acknowledge this. Both parties are thus brought into a position to consider openly the facts of the case. If mutual acknowledgment of the facts cannot thus be achieved, then, within the Christian congregation, a judicial committee made up of elders can handle the matter.

This was similar to the village courts of ancient Israel. A quick, practical system of justice was administered locally by nonprofessionals, the experienced and wise older men in the community. They were ready to decide the disputed question and this without expecting a percentage of the proceeds of the case, as is the custom of many professionals in modern times.—Ex. 18:13-26.

Should Christian disputes today carry over into the secular courts? The apostle Paul emphasized the need of the Christian community to settle its own internal disputes: “If one of your number has a dispute with another, has he the face to take it to pagan law-courts instead of to the community of God’s people? . . . Can it be that there is not a single wise man among you able to give a decision in a brother-Christian’s cause? Must brother go to law with brother—and before unbelievers? Indeed, you already fall below your standard in going to law with one another at all. Why not rather suffer injury? Why not rather let yourself be robbed?”—1 Cor. 6:1-7, The New English Bible.

Of course, this is not to say that all court procedures between fellow Christians are ruled out. If, for example, obtaining compensation from an insurance company, the probating of a will or some other circumstance required court action, there may be no discredit to the Christian congregation, since there is no actual contention between Christian brothers in such instances. But for handling most differences between Christians, men well grounded in Biblical principles are available in the congregations. They are even now helping many to resolve such matters without the public notice and consequent reproach of court action. In some cases Christian love may even move one to “suffer injury” rather than harm the good name of the congregation before those outside.

When True Justice Prevails

In today’s world, human imperfection looms large in both the systems of justice and the persons using them. But this will not always be so. Mankind’s Creator has promised soon to remedy the present failure of governments to provide true justice for all their peoples. Under God’s kingdom, perfect justice will be possible because its administration will no longer be in the hands of mere humans.

Lawyers and human legal systems will be a thing of the past. Instead, with superhuman insight, God’s chosen judge, Jesus Christ, “will not judge by any mere appearance to his eyes, nor reprove simply according to the thing heard by his ears. And with righteousness he must judge the lowly ones.”—Isa. 11:3, 4.

Mankind will not miss the legal profession and its imperfect attempts to get justice. They will rejoice in the exercise of true justice forever. “His royal power will continue to grow; his kingdom will always be at peace. He will rule . . . basing his power on right and justice from now until the end of time.”—Isa. 9:7, Today’s English Version.

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“Can it actually be good for a society to be quick to quarrel in court?”—Columbia Law Professor Maurice Rosenberg

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“Can it be that there is not a single wise man among you able to give a decision in a brother-Christian’s cause?”—1 Cor. 6:5, The New English Bible.