Making Ourselves Uncomfortable

-- By DavidGoldin - 26 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 graduates from the nation's 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 the lives of and cause great expense to a large number of people. Receiving a letter from a lawyer often can cause one 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 some lawyers do, many lawyers use the power granted by their licenses to try and do good. Unfortunately, some 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, many lawyers will step around them as much as possible. Instead of giving a full answer to a question, some 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 multitude of problems in society today which lawyers can have a role in solving, 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 doing so makes them 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 these issues won't be addressed at all.

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.

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. This will certainly be difficult for me 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, lawyers and law students must be willing to step out of our comfort zones and use the power that our licenses and educations give us to directly address problems and work on solving them. Recognizing the value of being uncomfortable in some situations is the first step.

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.