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The State of The Profession: Is There a There There?

By Thomas J. McDermott, Jr.

It's in a quantum state. Like Schrodinger's cat, when you determine it is here, then

it is there. The profession is everywhere and nowhere. And, perhaps like Gertrude Stein's turn-

of-the-century Oakland, there isn't even a there there.

Let's look at the profession over all first, then some of its parts. The profession is

law and the purpose oflaw is stability, nothing more. The purpose is not "justice" as people are

so fond of saying today. "Justice" is a political concept and what is justice in a society can only

be arrived at by consensus of the society's population, which is a political process.

A purpose of law may well be to preserve justice, but that is a far different process

than creating justice. Given a law of society, the courts are suppose to implement it as close as

possible to its enactors intent and thereafter to maintain that interpretation.

The latter used to be called "the doctrine of stare decisis," a concept younger

lawyers may not be familiar with. It meant that earlier decisions were to be followed, not

reasoned around or dodged or ignored. It gave a stability to the law and allowed the populace to

govern itself accordingly. In other words, guideposts were in place and with reasonable

application, a lawyer could tell his or her client what the law was. The lawyer who purports to

tell his or her client what the law is today is guilty of malpractice. (The reader has realized by

now that this is a polemic; those who abhor polemics are excused. This doesn't get any better.)

Tocqueville noted in his unique and insightful Democracy In America:

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"The more we reflect upon all that occurs in the United States, the more we shall

be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to

the democratic element." This quote comes in the portion of his book entitled "Mitigations Of

The Tyranny Of The Majority." Keep in mind that Tocqueville felt that majority rule,

unchecked, could destroy a society. He found that lawyers were that check or "counterpoise."

He further found that this was primarily because of the British and American doctrine of stare

decisis. It is this power of precedence, generally unavailable to the intelligent lay person, that

gave the lawyer his power and allowed him to be the balance to the "majesty" which in America

had moved from the sole sovereign to the mass rule. He believed that the "tyranny of the

majority" in the United States could be so pervasive and invasive that its citizens would not stand

for it were it not for the balance provided by the doctrine of stare decisis and the legal profession.

Stare decisis is gone, the balance is deteriorating and the public is in revolt against

law and lawyers.

The Courts

In the American system, the courts were supposed to adjudicate first, enforce

second and legislate never. This is turned on its head. They now legislate first, enforce second

and adjudicate sometimes although most of this dull stuff is being shuffled off to a new "court"

system called ADR.

Keep in mind that every time any court, trial or appellate, decides a case based on

its "gut" reaction, usually excused as an attempt to "do justice" in a "recognizably unique

situation" (which it seldom is), that court is legislating. If you don't take the facts and apply

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them to past precedent or to statutory meaning or history, you are legislating. This means new

law, new "precedent," something that "advances" the law but in reality that confuses it for those

who must follow behind.

The ultimate result is that lawyers realize they can legislate; get around precedent

and statutes, create new "precedent" in the interests of their current client, and they do it. Don't

blame the lawyers. It's always been their job to advocate a position, no matter how dismal that

position may be. The failure to do so today, the failure to create new and novel theories and offer

them up in the guise of "justice in this particular fact pattern" would be wrong.

Of course, the lawyer does have a responsibility to society in general and to the

legal system in particular. How does he or she resolve the conflict between these responsibilities

and the responsibility to the client to be "imaginative?" I don't have the answer. When I started

to practice it was possible to look a client in the eye and say "you have no claim" or "you have no

defense." You would not do so today because you know that there's no absolute there there.

And we wonder why there has been such a surge in litigation.

The Judges

Is your judge there on the bench or out JAMin'?

If you're a civil trial lawyer and you've never had a case "referenced" out to a

private jurist, you've got a weak practice.

This business of having an "alternative" judge make the decisions (even the term

reeks of quantum theory, as in an "alternate" universe) may work out well or it may not: the

jury's still out. (Indeed, juries may be literally out soon). The point is, it's change, rapid and

radical change. For a change of significance to be successful, it must be planned, tested,

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continually revised and then implemented with some consistency. Have any of these processes

been applied to judicial reference or do they just "happen" when the judge is so busy he or she

can't cope? As of now, there appears to be no there there.

How does the system justify passing the costs of these references on to the public?

How can the system justify assigning these references only for the affluent, the only ones able to

finance them? Doesn't this create a two-tiered system of courts, one for the rich and one for the


The Lawyers

I've scolded the lawyers enough supra (as we like to say when we don't want lay

people to know what we're talking about), but I will note one additional teeny, tiny little issue:

money. Did you know that trial lawyers gave more money to politicians in 1995 than anyone?

Trial lawyers gave over $8 million dollars at the federal level while tobacco companies gave $3

million dollars, oil and gas companies gave almost $3 million dollars and automakers gave less

than $1 million dollars. Did you know that ten trial lawyers gave roughly $8 million dollars to

politicians from 1989 through 1995?

It doesn't astound me that they were trying to influence legislation=that's old hat.

What astounds me is that they could earn so much money that they could give this much away.

When I started practicing in the 50's, I was continually taught that the word

"professional" meant a person who put his or her contribution to humanity above pecuniary gain:

doctors, teachers, writers, priests, ministers and rabbis, lawyers. In the late 60's, a movie was

released called "The Professionals." The title referred to people who killed in exchange for high

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pay. Movies reflect the culture. Weare not masking our role to the public when we refer to

ourselves as "professionals." I'm afraid they're on to us. They believe there's no there there

except money.

An Apologia

Now that I've bashed everyone and everything, it's time for an apologia and a


I don't demean the court system, the judges or the lawyers. Change is inevitable.

But law is not technology. Law is not driven forward at breakneck speed by an implacable and

uncontrollable force. The very concepts of law are contemplation, structure, past practice,

guidance, stability and modesty. That's where justice comes from. It comes from knowing what

society permits, and does not permit, you to do, and how society imposes its will on you, so that

you can conduct yourself appropriately.

Once the law becomes unpredictable and its procedures become imprecise, once

money is the only driving force, the compass required for right conduct is lost. As you look

around without your compass and wonder where you are, you're tempted to think there may be

no there there.


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