One of the hard facts facing us is that lawyers are the foot soldiers in our campaign to rid ourselves of these haters, thugs, clowns, and the Russian asset currently running OUR executive branch.
Unfortunately, a significant percentage of both red and blue Americans think of lawyers in less than gracious terms.
One of my favorite lawyer jokes:
A banker, accountant, and lawyer have to swim from a sinking boat through shark-infested waters to reach the shore. The lawyer goes first. While surrounded by sharks on his swim to safety, he makes it to shore unscathed. The banker goes next and is immediately attacked by a shark. Believing the banker’s screaming and thrashing will be a diversion, the accountant leaps in the water and he too is eaten by a shark. Why did the lawyer survive and the banker and accountant perish? Professional courtesy.
With a certain amount of trepidation, several weeks ago I posted an essay called Lawyer Jokes.
I was concerned about offending some of my friends who were, or are, lawyers.
These are friends I cherish, and yet I felt compelled to point out in Lawyer Jokes some discontinuities in lawyering and take a gratuitous shot at lawyers. That is a little perverse, to risk offending friends to make a couple political points. But then most of my friends have thick skins. They have had to be thick-skinned to survive my friendship.
Not surprisingly I got an “atta boy” from two lawyer friends. Bill Mutryn is retired and Jim Miller practices as a mediator. But John Tweedy wrote back a 300-word response that I wanted to share with you along with some of my additional comments. That an occasional lawyer joke appears out of context is no reflection on John’s thoughts. John’s comments are in italic.
“Your breakdown on the two different, and opposed, functions of lawyers is very apt. Adding to the complexity is the structure of the legal profession itself. The complexification of law does not owe principally to the greed motivation of lawyers, though it does contribute. The principal reason, IMO, is the structure of legal thought and practice itself.”
I wrote that lawyers write our laws and regulations, that only lawyers can understand, because they are paid huge hourly rates; the more complex the document the more they make. The opposing view was that lawyers, who swear to uphold the Constitution, are one of our redoubts against political insanity and ineptitude. The gratuitous part came in when I suggested that lawyers are not held in high repute by some people.
What’s the difference between a lawyer and a herd of buffalo? The lawyer charges more. (From subscriber Curt Peoples)
“The law is essentially a fear-based enterprise. It favors risk-avoidance and punishes error, whether intentional or merely negligent. Conversely, the common-law system of following precedent encourages layers of complexity. Those 20-page contracts? They are not only because lawyers get paid by the word. They are also because lawyers fear that if some clause isn't in there which creates a loophole that somebody can exploit (or because once, somewhere, there was a case where someone DID exploit that loophole) then the hole must be plugged. And the accumulation of plugs weighs the whole thing down until it sinks.”
So legal thought and practice is all about one lawyer trying to out think and beat another lawyer? I’d never thought of the practice of law in that way, but John is absolutely right. From the writing of a basic document such as a bill of sale to practicing before the Supreme Court, the action actually taking place in our legal system is one lawyer trying to beat another lawyer.
Felix Frankfurter, Associate Justice of the Supreme Court (1939-1962) was famous for the clarity of his opinions. He wrote,“Litigation is the pursuit of practical ends, not a game of chess.”*
“People stop reading contracts, because what's the point? Thus is defeated the purpose of having a contract at all. Same with laws and regulations. There's an ecosystemic quality to legislation and regulation, whereby everything is interdependent, cross-referential, and ossified. To prune it away is an enormous and error-prone task, because if you cut something you may be affecting something else you never thought of.”
Here John is saying that fixing the problem is impossible. He could be right about that. But
If legal thought and practice continue down this path, our regulations and laws will eventually lead us to total inaction, total stagnation.
The problem with all this is that those of us so blessed as to not be lawyers, are paying the price for all this mind-boggling complexity within the legal profession.
Shakespeare may have been right, “The first thing we do is, let’s kill all the lawyers.” However, it should be noted that there is a variety of interpretations of this quote.
“Not to mention that modern legislation involves passing bills that are 1000 pages long and nobody has even read, because they are handed out to the rank-and-file on two hours' notice. It used to be that laws were carefully honed in committee, then passed out to the house or senate, then the differences reconciled through joint committees, then re-passed. Now bills are lobbed like grenades.”
What’s the difference between a lawyer and a pissed off rooster? A rooster clucks defiance. (From subscriber Linda Ligon).
I believe I’m right about greed being a driving force in lawyering. John is correct to cite an inherent problem of fear-driven complexity in our legal thought and practice. And maybe there is another flaw in the legal profession that neither of us has considered.
But it is clear, that in spite of flaws of the profession, lawyers have a singular role to play in controlling the current administration. Lawyers also have a historical opportunity to slow and stop this carnage in high places, and return the course of this nation toward decency and soft power.
* Indianapolis v. Chase National Bank, 314 U.S. 63, 69 (1941)
Editor’s Note:
If you have a favorite lawyer joke, send it to alanbearstark@gmail.com
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I am alanstark1@substack.com
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