Monday, July 7, 2008

A Justice for American Judges and Lawyers Today

The other day, I listened to one of our Supreme Court justices, Anton Scalia, talk about a book --Making Your Case: The Art of Persuading Judges -- he had written with another, a writer employed to write by one of the larger law book publishers, a "household name" in the legal profession. There was not much to listen too.

The judge was using the heights of his position to team up with a name one sees on significant publications of the law book publisher to tell lawyers how to make the lawyer's case to judges. And, to make your case, how to dress, how to write a brief, how to make oral argument, how to, how to, etc.

Lawyers with some spare change have many such books on their bookshelves (if they really have bookshelves outside of the bookshelves of their law firms). Such books not about the law, the history of law, the purposes of law, the major concerns of law over time. No, such books are books about how to "trick the law."

What I mean by "trick the law" is how to control the system of law and judges so that it works in one’s favor, so that it is possible for a lawyer to win. Tricking the law is about how a lawyer would go about getting his or her success in the law. Tricking the law books are all about how to conform so one can win – gain material success and favorable public opinion in the profession of the law.

Justice Scalia, a man lionized by many within and without the profession of the law, went on to say lawyers are merely "facilitators", that they do not contribute anything real or substantial to the process of life. They just help things along. I think I remember that as the essence of what the justice said, but I am also sure he would say I am simplifying it too much though.

I had never really thought about lawyers in this way before -- as facilitators. Or, if I had, I denied the truth of the characterization. The lawyer of my imagination has always been a person who, acting with courage and conviction and intelligence as best God gave it to him, would do more than just facilitate, he would lead and he would try to help the law evolve. I have naively assumed that a good lawyer would use his effort to help the filial sense of being evolve into finer thing.

I have had lofty thoughts about the law and lawyers and still do. But the justice’s remarks lead me to think I am out of step with the times.

Maybe a lawyer is just that, a facilitator. That a lawyer should be just that, and should aspire to be only that – a facilitator helping himself and his client trick the law for success and profit.

Does not seem much to aspire to.

Maybe we will be saved from this pecuniary view of the legal profession and the judiciary by a book, after the fashion of Babbitt by Sinclair Lewis. A Babbitt book about a lawyer rather than a realtor (trademark).


nowdoucit said...

Enjoy reading your site - find your thinking a refreshing change from the usual thinking about Scruggs and the role of Judge Lackey.

Steve Eugster said...

nowdoucit -- Thanks. The Scruggs Affair is truly interesting. It has meaning which far surpasses what we are just beginning to read about. I just hope the depths and nuances of the matter will get laid out so we can understand what has taken place in fact. Thanks again. Steve