The Cautious Lawyer and the Risk-Averse Legal Profession

-- CaseyBoyle - 05 Apr 2008 (ready for comments)

Lawyers are Risk-Averse both by Nature and by Conditioning

Lawyers are risk-averse both by nature and by conditioning. They are risk-averse by nature because the legal profession attracts the individual who is, inherently, cautious and risk-averse. They are risk-averse by conditioning because law school and the profession itself promote risk-averseness. The cautious lawyer and the risk-averse legal profession produce an adverse societal effect – they preclude the use of the law as an innovative tool for social change.

Risk-averse by nature

People who go to law school tend to be, by nature, risk-averse. Because the legal profession offers a perceived guarantee of high-status and -income, the profession attracts individuals who are intent on this end and captivated by the seemingly risk-free path toward that end. Thus, the law school applicant pool contains a surplus of individuals with cautious dispositions. At the upper levels of the profession, this cautious inclination is especially pronounced. The prospective lawyers who are accepted to prestigious law schools are those with the most commendable resumes, and have thus grown accustomed to the praise that accompanies high achievement. Once enraptured by such praise, the individual will seek out those endeavors in which he is bound to triumph. The legal profession, with its guarantee of success and good fortune, is a common pick. This formulaic guarantee is oft-repeated by law school administrators and the students themselves: if one goes to a top-tier law school, one gets a job in a top-tier firm. And this propitious result does not even require better-than-mediocre academic achievement. Thus, a scenario is created that the cautious, self-doubting, and afraid-to-fail prospective law student relishes and gravitates towards.

As Veblen writes in The Theory of the Leisure Class, within every man is a “desire…to put [his] prowess in evidence by exhibiting some durable result of [his] exploits.” The game of pecuniary emulation is one of demonstrating power through possessions. This drive to accumulate wealth and possessions in order to “retain one’s good name” and to earn “popular esteem” helps explain the risk-averseness that inheres in the prospective lawyer. Given that the legal profession is perceived as offering a surefire prospect of material success, individuals who gravitate towards it are, in general, those who are most concerned with earning the “esteem” of their peers. Hence, many of the students filling the seats of top-tier law schools are interested in playing the pecuniary emulation game and playing it safely.

Risk-averse by conditioning

The culture of law school and the substance of the legal profession reinforce these risk-averse tendencies. Risk-averseness is engrained in the law school curriculum and in the culture of law school. The 1L curriculum, one that has changed little over the years, consists of an array of common-law courses emphasizing history and tradition. The law is depicted as a static force and a judicial decision is analyzed without much attention to either context or to aftermath. Rules and doctrine are the focus. Policy and innovation are afterthoughts (both in the casebooks and in the lesson).

Risk-averseness also pervades the law school culture. The custom seems to be that 1Ls blindly follow what the older and wiser 2Ls tell them. If a 2L tells you to “submit your summer associate firm applications by December 1st or else,” you’d better do it. If a 2L tells you to buy the Chemerinsky treatise for Con Law, head to the nearest bookstore before you find yourself with a dreaded B minus. This risk-averseness is evident during exam time. Students who, in September were comforted by the prospect of that guaranteed “B,” now find themselves locked in the library for 15 hour days “just in case.”

This risk-averseness and caution follow the lawyer into the profession. Once there, the lawyer learns that his job is to help his clients minimize risk and liability, or help bail his client out when a risk has been actualized. At a firm, the job of the associate becomes to ensure that the partners are kept happy. The job of the partner is to ensure that the firm makes money. These respective mindsets increase the level of caution and diminish any innovative leeway. Furthermore, once situated within a well-paying and cushy job, lawyers become even more risk-averse for fear of losing their hard-earned status. Thus, associates continue to do what their partners want them to do, and partners continue to do whatever will help the firm’s bottom line.

The Social Effect of Risk-Averse Lawyers: How they are hurting society

The lawyer’s cautious disposition and the profession’s discouragement of risk-taking have significant societal effects. While foresight, caution, and meticulousness are indeed valued qualities in a lawyer, these same traits prevent the law from being used in socially innovative ways. Lawyers who are cautious by nature and risk-averse by conditioning are afraid to be innovative; few start their own firms or enter non-traditional legal fields. Many graduating law students choose careers in Big Law which offer the guaranteed prospect of material privilege, instead of pursuing more entrepreneurial, innovative, or public-interest minded careers that lack this guarantee. Many might choose this path not because they want to, but because it is what everyone does. It is a path that is tried-and-true, and thus has obvious appeal to the cautious lawyer. In addition, because the culture of law school doesn’t prepare the lawyer for careers other than one in Big Law, the lawyer doesn’t know how to go about using the law in innovative ways. The road of law school seems to lead to only one destination. And to the risk-averse J.D., it is an alluring one.

Once nestled in his high-prestige position, the lawyer is further prevented from using the law in socially innovative ways. Now employed at the “Firm” and working for the “Partner,” the lawyer is cabined into certain practice areas and limited to certain clientele. These lawyers, now well-adapted to the comforts of material success, refuse to put their careers on the line to pursue an avenue that is more innovative and risky. As Veblen writes, the leisure class is marked by social conservatism, a feature that comes to be recognized as a mark of respectability, while innovation comes to be seen as improper, even “vulgar.” (199, 200). He says that because “the exigencies of the general economic situation of the community do not…directly impinge upon” the leisure class, that class becomes the barrier that retards “social evolution.” (198). According to Veblen, the leisure class’s role “in social evolution is to retard the movement and to conserve what is obsolescent.” (198).

Conclusion

The risk-averseness that pervades both legal education and the profession at large creates non-entrepreneurial lawyers who don’t know how to use, or are discouraged from using, the law in innovative, socially-productive ways. The lure of guaranteed material success induces the cautious individual to go to law school. The culture of law school itself conditions the prospective lawyer to choose the most tried-and-true path, one that the cautious law student finds compelling. Once on this path, the lawyer disposes of his ability to use his license in socially innovative and productive ways. This cycle, effectively, reduces the law’s ability to effect dynamic change for the betterment of society.