Making Ourselves Uncomfortable

The Role of The Lawyer

Having a license to practice law grants its holder access to many of the institutions and people who have the power to effect changes in today's world. This is not to be taken lightly, and is one of the reasons that it is so upsetting to see many graduates from the nation's most prestigious law schools "pawn their licenses". The question then becomes why so many people do this. Some will say money - but this is only a partial explanation. True, receiving $160,000 a year sounds appealing. But given the amount that will go to taxes and the number of hours that we will need to work to get this, the money really isn't that great. In this paper, I will argue that another important reason is a fear of risk-taking.

Being Afraid

One of the anecdotes Eben gave us in class is a good illustration of this. He mentioned a young, out-of-work lawyer who was desperately looking for a job. She hadn't had much success, and was getting quite worried. Eben suggested that she start taking on clients and developing a practice. Whenever the topic, of going it alone, was mentioned in class, we would talk about why we couldn't do it. We don't have the training. Taking on their own clients is scary - we could mess up. What happened if we don't get enough clients and can't successfully cover our expenses? This illustrates a larger issue with the profession: many of us are downright terrified of taking risks.

But learning to think of yourself as running your own practice doesn't necessarily mean practicing by yourself, and it certainly doesn't mean having no ways to share or diversify your risk. The law firm imposes risks too, in case you hadn't noticed. And you're not allowed to diversify those at all. Maybe a risk-averse person who wasn't also a conformist would be more worried about the risk of borrowing a great deal of money in order to become utterly financially dependent on a job provided by some lawyers who themselves work in a large law firm whose business model is being disrupted not so much by "the bad economy" as by the twenty-first century. Maybe that means accepting a whole lot of risk that you can't lay off anywhere. And firm jobs don't suit you to run your own practice in any sense at all: they're more learned helplessness.

Lawyers have a reputation for being risk-averse, but why are so many lawyers like this? One reason is that we are trained to be this way. We hear stories where a seemingly minor mistake by a lawyer causes significant problems. We learn about estoppel in our Legal Methods class during the first week of school, and that often, once we say something as lawyers, we can't take it back. We are told to be careful, and that if we mess up, it can destroy our lives. These are likely significant factors in our collective fear of risk.

You think that lawyers who are entrepreneurial about how they build their practices are therefore also risk-loving people who don't practice carefully? That's wrong, for one thing. But it also exemplifies the problem with this sort of unifactorial explanation based on some (I guess) immutable character trait that people either have or don't have. Judging human beings in practice this way (either they have goodness or badness, smartness or stupidness, honesty or dishonesty, timidity or rashness, etc.) works very poorly in real life, and it's probably not going to pay off in a context like this.

Granted, this description doesn't apply to all lawyers. Many lawyers have taken huge risks in their careers, and many of these individuals have had significant impacts on the world. During Legal Methods, our professor brought in a number of his colleagues. The vast majority of them were risk-takers with regards to career decisions. They hadn't gone straight from law school to X & Y LLP, where they worked 2500 hours a year for 9 years and made partner. They had taken winding paths in their careers, accepting work that interested them as opposed to just "safe" work. The one thing that unified them is that (at least outwardly) all were satisfied with their careers.

So what does this anecdote demonstrate? People who don't do one particular thing, namely go to work at a firm and stay there, are "risk-takers with regard to career decisions"? Nothing here supports that inference. It's the proposition you're supposed to be testing dematerialized into an implicit assumption, where it rules your thought without you're being able to know it's there.

This brings us to the real heart of the problem, which isn't something called "risk-aversion." It's fear. Fear is an emotion we learn to regulate, cope with, and use. "Risk-aversion" is some sort of property, like left-handedness or the ability to roll your tongue lengthwise, that I'm supposed to believe you got issued in your genome, and are merely going to act out for the rest of your life from one unchosen situation to another. Being afraid of the future, being afraid you can't make your practice support you, being afraid of mistakes and bad choices are all part of the process of learning to be a lawyer. We recognize our fears, we talk about them with the people who help us learn, we do things in the world that allow us to measure ourselves against the demands of the real world, and we grow. But if we allowed our fears to prevent us from growing, how would that be "safe"?

The Next Steps

So where do we go from here? As I sit here, writing about how the fear of taking risks is holding me back, I am afraid. My first year of law school is over, and I don't know how much I've gained from it. I don't have any useful skills - I can barely do legal research and if someone came to me with a legal problem, I'd probably have a panic attack. If I have learned a third of what I'm going to learn in law school, I'm in bad shape.

This would be some kind of problem if learning were linear, which it isn't. You've done what every lawyer who has been educated in this society for the past hundred thirty years has done. It may well be imperfect, or even becoming more outmoded by the day. But your problem isn't the exterior system of education; it's your fear.

The next step, then, is to figure out a better system of preparing lawyers.

No. It isn't the next step in your education to change the system of education. It's your next step in your education to change yourself. This, like "risk-aversion" is a defensive digression, unconsciously designed to avoid the internal conflict that comes from internal change.

This again seems pretty self-evident. We have had a number of class discussions about it. People have thrown out a variety of ideas. We need better professors who know how to teach us. We need better classes which will actually prepare us to be lawyers. Law school should be less expensive, so the vast majority of us don't graduate with huge amounts of debt hanging over our heads. There are a lot of changes that need to be made.

I do not believe that people are inherently risk-averse or risk-loving. Granted, people have different risk thresholds and this is in part based on nature. But most of it is nurture. People are taught to either take risks or not to. Our current legal education system tends to teach us not to. In some respects, this is good - we don't want lawyers running around using their licenses recklessly. But at the same time, it inhibits many of us from using our licenses to solve the problems and make the changes that desperately need to be made. Perhaps, if we were taught the values of risk taking, as Eben has endeavored to do, and were educated in a way that would enable us to be lawyers without coddling, we'd be able to do so.

Endeavored to do but failed to do because of your inherent "risk-aversion," you mean? Perhaps you haven't yet fully applied yourself to the lesson.

Afraid

Looking Inside

Looking Outside

David - I cleaned up a few grammatical errors and misspellings. Two other issues I noticed:

1) I think one issue you might want to consider is that the law attracts a self-selecting pool of risk averse people. While law school may play a role in making us even more risk averse, I have a feeling that most people who come to law school are not very interested in taking risks. If they were, they wouldn't need to come to law school, because they would start up their own business. They say people who go to business school are risk takers and people who go to law school are risk averse. Definitely true in my family - my older brother went to B school and created his own start-up after graduation, and I came to law school. Maybe also check out Abi's paper about risk aversion.

2) Another area you might want to consider is our conversation about clinics and any other currently existing opportunities to learn real lawyering skills in law school. Is it possible for someone who is really focused on getting practical experience to do so at CLS as it currently exists? I'm not sure, but you might want to explore that question a little more.

Nos vemos luego. Que te vaya bien durante del verano.

Nate - Your first point is a completely valid one. My assertion, however, is that law school need to account for this. Many people who go to law school are risk averse. So the schools are working with a difficult population. But by focusing on the negative elements of risk taking, schools are creating even more risk averse people, which will inhibit their effectiveness as lawyers.

The clinics issue is an interesting one. I didn't apply for any for this upcoming semester. Hopefully I will be in one at some point in my law school career, and will be able to explore this issue a bit more. But as of right now, I don't think I have enough knowledge to discuss the issue in depth.

Thanks again for the thought you've put into these comments, and best wishes for an interesting and exciting summer.

Cuidate.

The Unique Role of the Lawyer

"Being Lawyerly"

A Balance

Finding the balance is a difficult feat. Part of it is using common sense - there are words to avoid and bad situations to bring up controversial issues. Part of it is scrupulous research - fully learning about issues before making assertions about them. And part of it is being burned - making inappropriate statements and suffering the consequences. No one wants to be remembered for making an improper comment. But very few people have effected real change by being so careful they refuse to call out when they see injustice and skirting the difficult issues for fear of being offensive. I would much rather make progress, even if it involves a few bumps and bruises along the way, than get nowhere at all.

This is not convincingly argued. No evidence is offered in support of the original implication that it is "being lawyerly" that reduces the effectiveness of lawyers. The argument is puzzlingly divided, without acknowledgment of the division. "Lawyerly" communication is first said to irritate others and then proposed as the motivation, or at least the reason, for individual lawyers' neutrality in the face of injustice.

No reason to believe either of these propositions, and they're far from self-evident. That lawyers are detested for being too polite or too cautious is not my experience, and I doubt it's the experience of anyone who's held a license for a decade, two, or three. Lawyers, almost always other peoples' lawyers, are disliked for being arrogant, opinionated, pushy, and—in their own opinions—entitled. This stereotype may be no more accurate than the one you present, but it could hardly be more different.

That lawyers are motivated not to interfere with injustice by "political correctness," here defined as though it were a reluctance to offend, also seems to me unestablished, to put it mildly. The most important reason lawyers don't interfere with injustice is that injustice pays them to work for it, which they happily and contentedly, or at least unhappily and guiltily, do. The next most important reasons are all the same ones that keep laymen from working against injustice: habit, fear, indifference, dissociation, and various forms of lack of good will. By any standard of measurement, I know a large number of lawyers, and I can't think of any who are restrained from doing good primarily by an excess of verbal timidity.

The concept of "striking a balance" strikes me as nonsense. Though I sometimes use impoliteness or vulgarity in my work, there's nothing whatever that requires resort to particular verbal tactics in order to deal with injustice at any level, nor does the employment of verbally aggressive tactics in any way necessitate or excuse irresponsible legal imprecision. The suggestion that the primary difficulty in making a commitment to moral engagement in one's practice is gauging the degree of social offense one is willing to impose through one's words rings hollow for me: I can think of many heroic lawyers, particularly African-Americans practicing in hostile jurisdictions under constant threat from the powers of white supremacy, who have spent entire careers in constant struggle for social justice without ever making an undignified, let alone an offensive, statement.

Then there's the peculiar use of "political correctness," to which I've already referred. That phrase is usually employed on the American Right, where it seems to me to express the linguistic equivalent of white skin privilege: resentment at the "sudden" discovery that the traditional vernacular taught by the WASP Ascendancy or permitted by it to the white working class is fraught with white supremacy, patriarchal misogyny, anti-Semitism, homophobia, anti-atheism, and many other bigotries. Two positions develop as a result of this "shock" and "resentment," as previously-marginalized people gain recognition of their dignity and equality. Newly empowered, these people begin to demand relief from the constant repetition of these bigotries with which they feel literally assailed. At the same time, groups afraid of the loss of economic and social advantage begin to insist on their freedom to offend, maintaining—Arnold would say—precisely the least inclusionary of their creeds in order to maintain cohesion in a shrinking group feeling the threat of being overwhelmed or dissolved. (Virulent nationalisms of various kinds boil up in dissolving multinational empires for this same reason.)

None of this has anything to do with your actual subject, for which "political correctness" thus seems to me a poorly-chosen analogue rather than the mot juste. You are talking about inhibitions against expressing dissent from the actual dogma of power. Those who disparage political correctness are unhappy with stigmatization of those who want to call women c***ts or black people n*****s; it is another sort of conformism altogether that silences the expression of doubts about capitalism, or the hostility of the rich to the needs of the poor, or the sham of democracy enacted in an empire under aristocratic control. Efforts against bigotry may be resisted as thought control, and while I admit to being unsympathetic to the enterprise, it won't help to confuse all forms of social control over speech without regard to their generality or context.

In the end, I think it would be helpful to go back to the outline and ask what the real subject of the essay is. If it is an essay about what prevents lawyers from achieving their potential in agitating for social change, a shift of emphasis from language to action, downward from the verbal superstructure to the material base (to risk an idiom), might be helpful. If it is an essay about lawyers' talk, a further reading in Lawyerland might prove a useful corrective.

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, DavidGoldin

-Consider other cases -Shorten first part -Expand later on -Personal reflection

It is also one of the reasons that so many people despise lawyers. A lawyer can go to court and initiate a lawsuit, something that can be difficult for an ordinary citizen. She can order massive discovery in an abusive way and can disrupt and potentially embarrass a large number of people. Even a letter from a lawyer often causes the ordinary person great fear. Having a license to practice law gives one a lot of power to affect the lives of others.

That said, lawyers often go too far in the direction of caution and in doing so, avoid tough subjects. They are uncomfortable discussing hard topics in a direct way. They won't address issues like the impact of racial profiling, unfairly discriminatory drug laws and ongoing de facto segregation in our schools directly. All too often, they will hint at what is wrong, but few will make the bold assertions necessary to expose the extent of these problems and their prevalence in society today. They are polite and "lawyerly".

At the same time, it is important that judges do the same. They must address sensitive issues directly and give answers. Tiptoeing around tough problems is like putting a band-aid on a wound that requires 30 stitches - it may stop the bleeding for 3 minutes, but the bleeding will return. As a general rule, people prefer comfort. Lawyers take this to an extreme. But to truly effect change, lawyers must be willing to step out of their comfort zones and use the power that their licenses give them to directly address problems to lead to eventual change.

Paper Title

Section I

Subsection A

Subsub 1

Subsection B

Subsub 1

Subsub 2

Section II

Subsection A

Subsection B