Making Ourselves Uncomfortable

-- By DavidGoldin - 21 Feb 2010

The Unique Role of the Lawyer

Having a license to practice law gives one an immense number of opportunities. Specifically, 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 of graduates from the most prestigious law schools "pawn their licenses".

It is also one of the reasons that so many people despise lawyers. A lawyer has the tools to go to court and initiate a lawsuit. A lawyer can order massive discovery in an abusive way and can disrupt and cause great expense a large number of people. Even a letter from a lawyer often causes the ordinary person anxiety or fear. Thus, having a license to practice law gives one a lot of power to affect the lives of others, both in good and bad ways. Despite the harm that lawyers can do, many lawyers use the power granted by their licenses to try and do good. Unfortunately, many of these lawyers are severely restricted in their ability to do so because they are too "lawyerly".

"Being Lawyerly"

What exactly is "being lawyerly"? It is consistently using vague and evasive language. It is giving the narrowest answers possible to important questions. And most of all, it is being too polite and politically correct to directly address injustices and problems in the world. Instead of making direct statements about controversial issues, most lawyers will step around them as much as possible. Instead of giving a full answer to a question, many lawyers will give the narrowest and most carefully crafted answer possible. They will go to great lengths to be painstakingly politically correct.

Judges do this as well. 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". Judges will try to avoid going out on limbs as well. They are "being lawyerly".

There is certainly virtue in caution. No one wants to concede a point in an overly broad assertion that will later be used against them. Furthermore, given the unique role of the lawyer, the words coming out of a lawyer's mouth can be misconstrued and cause great harm. Caution is thus admirable and a necessary trait for lawyers. That said, this caution must not be used excessively. Taking unpopular stances when necessary, addressing tough issues directly, and giving full answers to questions are incredibly important traits. There are a lot of problems in society today which lawyers can have a role in improving, and politeness and being "lawyerly" shouldn't be impediments to effecting change.

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 making assertions. At the same time, they must advocate for those who need it most, even if unpopular. They cannot be polite and "lawyerly" all of the time. They are incredibly lucky enough to have the access that their position affords them, and must take advantage of this. People who have the ability to make 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 change will not take place.

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 researching 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 inappropriate comment. But very few people have effected real change by being so careful they refuse to call out when they see injustice and skirt 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.

The Next Steps

Getting lawyers to speak openly and frankly about difficult issues is a hard task. Few people enjoy the uncomfortable situations that will necessarily result from this. There are a few steps, however, 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. If we as lawyers can't even discuss problems openly, how are we going to play a role in solving them?

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. On a personal level, this will certainly be difficult for to do. I have been trained to be politically correct, and it has been reinforced throughout my education and work experience. Furthermore, I am by nature risk averse, something many lawyers purport to be. But to truly effect change, most lawyers, including me, must be willing to step out of our comfort zones and use the power that their licenses give them to directly address problems to lead to eventual change. Recognizing the value of being uncomfortable in some situations is the first step.

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