My Word's Worth: a weekly column by Marylaine Block

vol. 2, #24, December, 1996

BAR NONE

Am I the only one who has realized that when the Big One hits Los Angeles or San Francisco or San Diego, there will be several conventions meeting there at that time? Think of it. Entire professions wiped out at one blow. We could lose a lot of our architects, or our chiefs of police, or our doctors. We could lose thousands of librarians--horrible thought. We could lose most of the American Bar Association...

Oh. Well. Like they say, it's an ill wind indeed that blows NO ONE any good.

This is not to say that I'm ill-wishing the many fine, decent, caring people who happen to be lawyers. They are, after all, the people who write our contracts and our wills for us, help us buy our houses and argue with the tax collector, help us resolve many of our day-to-day conflicts. Lawyers have also been prominent in every important movement to advance civil rights and civil liberties in this country, and we owe them a lot.

But there's a reason why Americans take particular pleasure in lawyer jokes. Like, when the lawyer fell into the aquarium, why did the shark escort him to the edge of the tank instead of eating him? Professional courtesy. Or, what's the difference between a dead skunk in the road and a dead lawyer in the road? There are skid marks near the skunk.

We're not talking about the ordinary lawyers we deal with every day when we suggest that the legal profession, in general, has not served America well, especially in the last forty years. We're talking about the hotshots, the brilliant hired guns who create amazing new legal doctrines that have some undesirable social consequences.

Start with the idea of personal accountability for our actions. On the criminal level, lawyers have developed new and novel psychological theories to get their guilty clients off the hook for crimes they clearly committed. Not guilty because of being in an alcoholic stupor. Not guilty because of being on drugs. Not guilty because of post-partum depression. Not guilty because of emotional abuse. Two recent examples: the Menendez brothers, who shotgunned their wealthy parents to death and claimed after the fact to have been terrified of continuing sexual abuse, and Jonathan Schmitz, who gunned down the man who had admitted sexual attraction to him on national television, and wanted to blame the television show.

Would these people have come up with these excuses on their own? Would they have been able to convince a jury on their own? Doesn't it take lawyers, committed to winning, rather than to justice, to come up with these theories and sell them to juries? (Not that I'm letting juries off the hook. It takes a certain amount of stupidity or moral incomprehension to buy into these theories.)

In addition to getting guilty people off the hook for their actions, lawyers arrange for people to be rewarded for their stupidity in the civil courts. So, you say you lifted your power mower over your head and used it to trim the hedges, and ended up slicing and dicing your hand instead? No problem--just sue the manufacturers. An evolving doctrine of strict liability is holding the unfortunate manufacturer responsible, regardless of the fact that the "victims" exhibited all the rational decision-making skills of kumquats.

Not only do lawyers find a way to shift blame away from people who deserve it. They find a way to find blame where there is none. We all know that sometimes bad things happen to people. That's a common idea, right? So common it's a rather vulgar bumper sticker: "____ happens." Religion has always been a mainstay in helping people cope with tragedy and cosmic injustice. But over my lifetime I have watched the evolution of an entirely new notion: bad things happened to me, therefore there must be somebody I can sue.
item: This is an authentic court case. A car, crossing railroad tracks, is crashed into by a train. The car is sent hurtling through a telephone booth nearby, injuring a man making a phone call. Question: who is legally responsible for the man's injuries? Answer: the telephone company, for placing a phone booth in an obviously dangerous location.

What lawyers do is play into the ready pool of sympathy for victims. We can see ourselves in a similar situation, injured, broke, unable to care for ourselves and our family. We feel that these people should be taken care of. Which is a good idea. But lawyers ask us to deal on a case by case basis with injury--which means someone with a really good lawyer makes out like a bandit, and other equally injured parties with less persuasive advocates get nothing. Is this kind of legal lottery a fair and rational way of dealing with this? Would it not, make more sense for us, as a society, to deal with inevitable accidents and injuries on a society-wide level, instead of case-by-case? Maybe with national insurance, or some other system?

Another problem many Americans have with lawyers is that they seem to be in the business of discovering hitherto unknown rights tucked away in our constitution. Most Americans, I think, had no real problem with civil rights for blacks, because the wording of the 13th, 14th and 15th amendments to the Constitution clearly specified those rights; just as clearly, many states and cities had been systematically ignoring or flouting those laws.

The issue of full civil rights for women was a little trickier, revolving around the statement

"All persons born or naturalized in the United States...
are citizens of the United States...No state shall make
or enforce any law which shall abridge the privileges
or immunities of citizens of the United States...nor deny
to any person...the equal protection of the laws."

What was at issue here was whether women were legally "persons." Now, I don't doubt that. But it was pretty clear that the people who wrote this language never remotely even thought about women as holding any of these rights. Their laws certainly made clear distinctions in privileges and responsibilities between the sexes. Nonetheless, while it caused a large amount of social disruption, American society generally adapted to the notion of full equal rights for women.

After that, the rights issues became substantially murkier. Were the civil rights of religious groups also protected? The rights of other ethnic groups? (We have been confronted with the unseemly spectacle of people competing for "most victimized" status.) Were people protected on the basis of sexual orientation?

Lawyers constructed a "right to privacy" out of bits and pieces of the 4th and 5th amendments to the constitution, and many people were puzzled to learn that the constitution gave women a right to have abortions. Lawyers found in the right to freedom of speech and press the more general right to free expression, including symbolic forms of protest, such as the right to burn the American flag. Lawyers discovered rights for students that apparently prevented teachers and principals from controlling various forms of student expression and conduct.

It is, I think, clear to many of us that sometimes one right conflicts with another right, and in those cases, it is up to reasonable people to compromise. If government agencies, such as schools, are not allowed to sponsor religion, they are, at the same time, not allowed to discriminate against religious expression--both rights are present in the first amendment. But too often, the schools and their lawyers come down heavily on the side of only one of these rights--generally they have acted to bar any form of religious expression in schools at all.

I think the final beef we have against lawyers is the stupid and inhumane things we end up doing because we're afraid of being sued. When the walkway collapsed in that hotel in Kansas City about 15 years ago, killing or injuring hundreds of people, the matriarch of the Hall family, who owned the hotel, wanted to send flowers to the families of the victims. She was told by lawyers not to do that because that would be used by other lawyers as an admission of liability.

About the recent stupid excesses of school principals and school boards you've been hearing about? You know, the 6-year old boy sent home from school in disgrace for kissing a girl's cheek? The girl kicked out of school because she gave a Midol tablet to a friend for her cramps? These are almost certainly decisions prompted by the fear of lawsuits. After all, if lawyers are going to come after you, mindless adherence to rules is excellent legal protection.

So if the earth swallows up the American Bar Association in the next earthquake, there might very well be a national celebration, a sense that maybe we could build our world anew. We could build a society that cares as much about personal responsibility and accountability as it does about rights, a society that tries to treat people fairly and kindly rather than legally, a society that knows that, when the rules don't make sense in a particular instance, you break them or bend them a little.

On the other hand, maybe we don't have to wait for an earthquake. Maybe the legal profession could think a little more about its effect on our social relations, and decide to remake itself. I suggest to our legal hotshots that, before they advance their next nifty new legal theory, they stop for a moment and ask themselves: if this legal theory was the law of the land, if the whole country had to live by it, would that country be a place I'd want my kids to grow up in?

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