DRAFT - STILL CUTTING DOWN/EDITING

Making Ourselves Uncomfortable

-- By DavidGoldin - 21 Feb 2010

The Unique Role of the Lawyer

Having a license to practice law means gives one a lot of opportunities. Specifically, a license to practice law gives one a unique position of power in that he has access to institutions which have a large amount of power, the courts. This is not to be taken lightly, and is one of the reasons that it is so upsetting to see many of the most talented graduates from law school "pawn their licenses".

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.

But lawyers don't only use the power that their licenses give them to do bad things. They do good things as well. Lawyers regularly fight on behalf of individuals whose rights need protection. They work at organizations that work to uphold the rights of citizens of the US, of the detained and of people abroad. The power can be used for good as well. Lawyers have a unique role, in that their professional role allows them to affect a huge number of people, both in good ways and in bad ways.

"Being Lawyerly"

This role has led to a phenomenon among lawyers, however, that I will term "being lawyerly". This is a common phrase. Lawyers know that what they say and write has the potential to have a significant impact and shape their careers in the future, so they often use vague and evasive language. Instead of making a direct statement about a controversial issue, they will step around it as much as possible. Instead of answering a question in a broad, easy to understand way, they will give the narrowest and most carefully crafted answer possible.

This is true in both day to day lawyering and in judicial opinions. Justice Jackson, in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer commented that "court decisions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way". Lawyers all too often shy away from taking bold stances. Instead, they evade as much as possible. They are very politically correct. They are "being lawyerly".

There is certainly virtue in this approach. No one wants to concede a point in an overly broad assertion that will later be used against them. Furthermore, given the power of lawyers, the words coming out of a lawyer's mouth can be misconstrued and lead to overwhelmingly negative results. Caution is thus admirable and a necessary trait for lawyers.

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".

A Balance

Because of the power that words have, especially those coming from one with a license to practice law, lawyers must learn to strike a balance. They must be judicious in choosing their words and making assertions. Baseless assertions about a perceived wrong can lead to highly negative consequences. At the same time, they must advocate for those who need it most. They cannot be polite and "lawyerly" all of the time. They are lucky enough to be in a position of power, and must take advantage of this. People who have the ability to make big changes, including judges, legislators, CEOs and university presidents, to name a few, listen to them. If they do not address uncomfortable issues directly, there is a good chance that they will be ignored.

Finding the balance is a difficult feat. Part of it is using common sense - there are good situations to bring up controversial issues, and there are bad times. Part of it is scrupulous research - fully researching issues before making assertions about them. And part of it is being burned - making inappropriate statements, and suffering the consequences. This is difficult, as the vast majority of lawyers value their professional reputations highly. No one wants to be remembered for making an inappropriate comment. But very few people have effected real change by being so careful they refuse to call out when they see injustice.

The Next Steps

Getting lawyers to speak openly about injustices so as to effect change to remedy them is a hard task. It is not something that can be learned overnight. That said, there are a few steps that lawyers can take. The first is dispensing with excessive political correctness. It is important that we not say hurtful things for the purpose of being hurtful, but at the same time, lawyers can't limit themselves because they feel the need to be too polite. There is no good way to discuss the income gap without referring to the poor. We can't discuss segregation or disparate impact of drug laws, for example, without discussing race. These may be sensitive topics, and no one wants to be known as being insensitive, but we must encourage direct dialogue, both in law schools and in real life practice.

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.

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