Tuesday, January 31, 2017

Praise be to Allah for the Lawyers

[Note to readers: We at Dorf on Law received the essay below from a lawyer who, because his job is not protected by the blessings of intellectual freedom, needs to worry about offending clients and angering thin-skinned politicians.  She or he thus wishes to remain anonymous, which we respect even as we note that there is something very wrong with a world in which such anonymity has become both prudent and necessary.

[The essay is particularly prescient in that it was written before Sally Q. Yates was fired for having somehow "betrayed" the Justice Department -- because heaven forbid that the Acting Attorney General's first concern would be to the Constitution or justice! Yates had been disloyal to Trump's Justice Department, so she had to go.

[Predictably, Trump treated this as just another political moment, using his familiar litany of demagogic insults and denunciations: "Ms Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration."  He might as well have called her "low energy," threatened to lock her up, and accused her of conspiring with Ted Cruz's dad to kill JFK.

[In any event, we invite you to enjoy the essay below.]

Praise be to Allah for the lawyers - the people who wrote the Constitution, who debated it, who pushed for it to be ratified, and who will be critical in defending it. And I'm not saying this as a lawyer but as a citizen.

It's a little known fact that the vilification of the legal profession is a four decades long smear campaign by conservatives with the purpose of dissuading working class folks from asserting their rights. (Believe me, the plutocrats who perpetrate this fraud don't think lawyers are evil and have armies of expensive lawyers working to make the world a safer place for billionaires; ironically, this is the very kind that the general public thinks are the good ones because they mistake money and Ally McBeal appeal for righteousness.) The campaign has been so successful that its message is bought into hook, line and sinker by the overwhelming majority of the population.

Consider the massive corporate scandals and the damage done to our society by the MBA's and MBA-wannabes in just the last decade, the worst of which we have yet to fully recover from. Indeed, consider the damage done by America's "first MBA president" and the possible destruction of our world by our current president (who was never admitted to Wharton's elite MBA program, but who did manage to complete an undergraduate business degree there). They're batting 1.000. But nobody thinks MBA's as a group are evil the way they view lawyers as a group. Hey, did you hear about the MBA who spent his entire weekend doing pro bono work at no charge to help political refugees seek asylum against a fascist administration? Me neither. To be sure, I don't think MBA's are evil, but the comparison illustrates the nature of the smear campaign against lawyers, which has stigmatized the assertion of workers' and other civil rights with great chilling effect.

Until now, we have gotten away with believing in this dangerous myth. For, as imperfect as our union has always been, we have never had the very basis of the Constitution and our way of life challenged from within in such a brazen, broad, fundamental, fast, alarming and disturbing way that transcends the numerous specific issues and that goes to the very heart of western liberalism. The corrosion of civil rights (and the obliteration of unions) by the terrible administration of Ronald Reagan, and even the abuses of power of the George W. Bush administration, as awful and far-ranging as they were, were decaf compared to this full-blown Trump roast in your cup every morning. It is literally the worst part of waking up because you still can't believe that you are stuck in this dystopian nightmare.

Unfortunately, the bubble we have long enjoyed of not having to think about how our system of self-governance was created, how it works, how every single piece of social progress happens, or how justice is won in every case, has now been burst by the biggest of pricks. It is unclear if we will win this war between good and evil. But I hope what is becoming clear is that lawyers - those evil, pernicious lawyers - will play a critical role, not just on the ground but on the very front lines. And hopefully, as a result, we will demand more from our government and from the plutocrats who run this country and their political arm, the Republican Party.

So, with apologies to the Bard, first thing we do, let's fund all the lawyers who are fighting for what has come with meteoric speed to be the defining cause of our time.


David Ricardo said...

It is difficult to respond to this short essay because while there is no disagreement with it the essay is incomplete. It treats the legal profession as homogenous group dedicated to freedom and justice and rule of law. The truth that the legal profession is comprised of a group that sacrifices principles and compassion and justice for material gain and a group which strives to uphold the nation’s principles, provides for compassion and supports the drive for justice.

And for every lawyer that volunteers for the ACLU or legal aid, for every lawyer that works pro bono for the defense of an impoverished individual charged with a major crime, for every lawyer who spends time working to improve the legal system there is what, five, ten, twenty, fifty lawyers who do not engage in activities designed to promote justice.

Lawyers are advocates, as they should be in our adversarial system of justice which pits each side against the other before an impartial judge or jury. But in order for the system to be fair each side must have approximately equal resources, or at least sufficient resources to mount an effective case. But that is not the system we have. Read about the lives of public defenders who often meet their clients just before a court appearance and have no time or resources to do anything other than get the best plea bargain they can. (see Missouri for just one example).

Justice is not equal, it depends upon wealth. Read about Michael Skaakal, a very wealthy Kennedy cousin-in-law who was able to hire the best defense lawyers money could buy for his murder case. Read about how he sought and obtained a new trial (temporarily) under the argument that he had inadequate representation. Then read about men sent to death row because their lawyer missed a filing deadline, and read about the concept that if an attorney makes an error it is the client, often poor, intellectually challenged and without information who must bear the punishment for the attorney’s mistake. Read about Jerry Hartfield

In civil litigation the current President is Exhibit A for how the system is rigged. He brags about how he has superior resources so that when he has reneged on a contract or has not paid for contracted services he is able to win his case because the other side does not have sufficient resources to contest the issue in court. As a litigation consultant I know first hand how attorneys use discovery not to advance their case but to burden the other side so greatly that they drop out of the case even if they have the law on their side.

So yes, there are good and bad attorneys but our legal system is unfair, inefficient and metes out justice more often than not on the basis on income and wealth of the parties, not on the merits of the case. We denigrate lawyers not because we have animus towards them but because our system of justice is not a system of justice, and attorney’s are the only ones who can fix it and the majority of them, well they don’t even seem to try. Atticus Finch, for those who do not know it, is a fictional character. Beauregard Sessions is not.

Shag from Brookline said...

Apparently Yates was too rowdy for the dowdy President Trump and his demand for loyalty. Trump replaced her with his Bork.

el roam said...

Thanks for the post, that was a very noble act from the part of Professor Dorf , to publish that piece. Also, tragic for that lawyer not to be able, or being afraid to publish it by himself, and remain anonymous.
However , it is really regrettable , if Trump indeed , stated that : " Ms Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration." Yet :

It is definitely justifiable , to fire her , this is because , she doesn't distinguish between litigation and representation of client or alike in court , and : opining objectively about a legal matter . When your duty , is to represent someone in court , you do present him in " his shoes " , means : you do subjective work , you take his side , unless , prima facie ( on the face of it ) it is clearly illegal , manifestly so . But , when you do represent a client or a party or a side , you need to do your best from their side , and finally it is up to a judge to prevail . She has taken indeed , the role of judge !! Only , if there is no point to bring it to court ( prima facie , fundamentally wrong ) she should refuse . Is it really the case ?? Let the judges , let the courts decide , it is up to them as ultimate experts of law .