Nature of a Lawyer's Work

The pilot of an airplane or of a ship has a much better chance of reaching his destination safely and with less mental strain if he has a chart of his course than if he has to cruise without any guide except his native ingenuity. In like fashion, the student, whether in high school or college, who contemplates the study of law will have a safer voyage if he has a chart of his educational course.

The very first question he has to ask himself is, "What is my destination? Is it to gain admittance to a recognized law school and to graduate from it? Or is it to be admitted to the bar and to practice law successfully? Or is it in addition to all of these things to become a well-rounded person and citizen, a leader in the affairs of his community, state, or country?" These ports are not located in opposite directions. They lie very much along the same route. But the length of the voyage to each port and the amount of preparation therefore differ-as do the rewards, tangible and intangible, to be obtained both en route and on arrival. Each student must select his own goal. For the ambitious and public-spirited student, the choice is clearly indicated.

Increasingly the courses in college and law school alike are being organized for the benefit of the student who aspires not merely to earn a living in his profession but to make a genuine contribution to it-who aims to use his talents not exclusively for himself but for society as well. And this is certainly as it should be, for there never was a time when leadership both in public and private affairs was at a higher premium.

There is unfortunately no place to which the student may resort to obtain an authoritative map to guide him to his port of destination. Life has never been completely charted and probably never will be, and law is but an aspect of life. But this does not mean that he need lack substantial guidance: (1) He may have spread out before him an outline of the work of the lawyer so that he may in a sense see for himself what aptitudes, skills, and knowledge are required or are advantageous in the practice of the profession. (2) In this connection it will be well for him to know, in a general way at least, how the law schools aim to prepare the student for the practice of law, for the law school will be his first port of call after college. It will be helpful for him to learn that the work in law school is quite different from the work in most colleges and that all too often students come from college to law school quite unprepared for the kind of instruction carried on there. (3) He may have exhibited to him what the leaders in the several branches of the profession think is the best route to his destination and what training and equipment he requires for his voyage. (4) And finally, we have available the advice of some of the great judges and statesmen of the latter part of the eighteenth century.

Why, it may be asked, should we go back over a century and a half for confirmation of what is needed for the education of a lawyer now? The answer is simple: It was the age of the American Revolution, the French Revolution, and the Industrial Revolution. The world was being made over economically, politically, socially, and to a degree intellectually. Can anyone who is familiar with world history of the past thirty years doubt that we are living in an age of revolution? "Permanent Revolution," one distinguished scholar has called it. In such periods the law as well as society changes rapidly, and this calls for far greater ability in the legal profession than in ordinary times, when routine and precedent will suffice. It calls for men like Washington and Hamilton, Adams and Jefferson in statecraft, like Madison among Constitution makers and Marshall among Constitution interpreters, like Kent and Story among the men who adapted the common law to the needs of a young country. It calls for men like Lord Mansfield, who demonstrated the power of a judge to adopt the common law to the needs of a new age, for men like Bentham, the great law reformer, and Blackstone, whose Commentaries, Burke tells us, were as much read here as in England. The two ages have too much in common for us to neglect the advice of these great men.

The Work of the Lawyer

What then, is the nature of a lawyer's work? Lawyers carry on a wide variety of activities but in the final analysis the advocate representing his client in court typifies the profession, for it is in the courts and other tribunals that the rights which the law protects must be vindicated. Sir William Osier, the great physician, once said: "The worst thing about quacks is that they cure people." The advocate is in no such danger of unmerited success; there are always two lawyers in court ready, willing, and generally able to expose any weakness in his position-his adversary and the judge. The test of the advocate is very real and always immediate. He must be prepared to bring all of his forces into action at a moment's notice. It will not avail him to know the facts of his case or the rules of law applicable thereto tomorrow. The efforts of a lawyer in court, whether trying a case before a judge and a jury, or a judge alone, or arguing an appeal before a group of judges, are but a small part of his work on his case or his appeal. Like an iceberg, only one ninth shows. Before a lawyer goes to court he must have heard his client's story, read the documents in the case, interviewed the witnesses, looked up the law, drafted his pleadings, studied his adversary's pleadings, conducted examinations before trial, perhaps have answered interrogatories, prepared a trial brief, and attended a pretrial conference before the judge with opposing counsel. On an appeal he has a record of the trial below to study, the law to look up, a brief to prepare, an answering brief of his adversary to reply to, an oral argument to outline, all before he makes his brief argument in court-and the briefer it is, the more difficult his tusk. When Woodrow Wilson was asked how long it took him to prepare a speech, he replied that he required two months to work up a twenty-minute speech, a month for a half-hour speech, but an hour speech he was prepared to make on call.

It is important that the prospective law student see that at every step the lawyer is dealing with three very different things-rules of law, which are abstract; facts, which are specific; and persons, each of whom is, whatever else may be said of him, a very complex individual. This diversity of subject matter is typical not only of the court work of the lawyer, but of his office work as well. As the counselor of his clients he is always dealing with abstract rules, concrete facts and complex personalities. Moreover, he does not deal with these abstract rules, these concrete facts, these complex personalities in a vacuum. He deals with them in their physical, social, and intellectual environment. The significance of environment is heightened when the lawyer under-takes to act for more than individual clients, for groups, incorporated or not, public or private. It reaches its highest point when he is chosen to act as a legislator or chief magistrate, whether of his town, county, state, or country. But his environment in the broad sense of the term, whether he is acting for a private client or the nation, is always in his mind as a factor.

These four factors in a lawyer's work-abstract rules, specific-facts, complex personalities, and environment, which he is likely to refer to as the "social order"-suggest the training and the subjects that may well engage the attention of the future law student. In this connection it should be observed that almost every action of a lawyer involves all four of these factors. It will avail the law student little to master any three of these factors if he ignores the fourth. It is of little value to know how to start an automobile if one does not also understand how to steer it and stop it-and know the rules of the road. It should be noted, too, what diverse qualities of mind are called for by these four elements of a lawyer's work. Abstractions call for the faculties of the thinker, but the thinking relates to the practical affairs of men, the avoidance of strife, the promotion of order, the doing of justice. Facts, on the other hand, are the common property of all, ranging from the simple facts of everyday life to the precise facts of science. There is almost no limit to the range of facts-material, intellectual, spiritual-that may engage the attention of the lawyer. The art, natural or acquired, of knowing and dealing with people is a third sphere that seems remote from logic and philosophy, from mathematics and science. It brings to mind rather the boys' club, the athletic field, the discussions around the dining room table at home, the "bull sessions" in the college fraternity house, the varied activities of the campus, the daily newspaper, the people one has met at school or on vacation-yes, and the books one has read and the plays one has seen. Psychology has its uses, but psychology never taught a man how to pick a jury.

The fourth factor, environment, covers more than politics, economics, and sociology, though it includes all of them. It deals as well with the ideas and the ideals that move men. Ideas and ideals are born, grow, bear fruit-and sometimes die. To understand them, as well as to understand politics, economics, and sociology, we must know history. Most of all, the lawyer must know the age-old struggle between the power of government and the freedom of the individual-a conflict fought now on one ground, now on another, but always being fought, if people are to preserve their liberty. The larger the interests a lawyer represents, private or public, the more important it is that he have a broad knowledge of his environment.

The lawyer must be able to think in terms of facts, of persons, of the abstractions we call law, and of environment. It is the variety of the factors with which he works daily that adds so much to the zest of his life. But he must also be able to express his thoughts in words. The abstractions we call law and the lawyer's notions of facts are unintelligible to us except in words. These words he must adapt to the capacity of the people with whom he is dealing. In short, the lawyer must know how to speak and write clearly and interestingly. Much of a lawyer's life is spent in handling words. They are a large part of his environment. He must master them or they will master him. He must know their full meaning-their definition, connotation, and associations.
 
Otherwise he is indeed a "mute inglorious Milton." This factor of spoken and written expression, then, is a fifth aspect of a lawyer's work. Many unthinking people would put it first: they are impressed by a person's presence, the flash of his eye, his silver tongue, the honeyed words that soothe and charm. All this is splendid and in some places it may carry all before it, but regardless of his eloquence, if a lawyer does not know his law, the judge will rule against him, and if he does not know his facts his adversary will expose his ignorance. The cultivation of the power of expression is worth much time, thought, and effort. This effort to phrase his law and to explain his facts takes up a considerable part of his thought, but with a real lawyer language is always a means, never the end.

The work of the advocate, it will be seen, consists essentially in aiding in the solving of problems-the problems of human beings, singly or collectively, with reference to their rights and responsibilities in a very real world. Problem-solving also is the function of the other branches of the profession. They, too, must face reality in a very practical way. The counselor advising his client, whether a poor widow or a rich corporation, whether some public body or an unincorporated association like a labor union, must apply the abstractions he calls law to specific facts, must deal with people and their rights in the light of the social order, must give his advice in understandable English-and must be prepared to see it tested out in court.

The judge is likewise concerned with all five factors. If he is a good judge, he will be concerned in particular with the conflict that so often appears between what actually is, what ideally ought to be, and what the law says officially must be if penalties are not to follow. The "is," the "ought to be," and the "must, or else," it should be added, are likewise in the advocate's mind, for law from one standpoint, as Mr. Justice Holmes has pointed out, is "the prophecies of what the courts will do in fact." Like the advocate's pleadings and motions, like the counselor’s opinions, the trial judge's rulings are subject to scrutiny, in his case by an appellate court. And even the work of the highest courts in the land is subject to the criticism of both popular and professional opinion, forces far more potent than many students at first realize. It follows then that the power of self-criticism is of great importance to the lawyer, if he would avoid criticism elsewhere-and defeat.

This applies not only to the advocate, the counselor, and the judge, but also to the legislator, the chief executive, and the administrator. If the legislator falls down in incorporating sound rules of law in his statute or bases it on insufficient facts, if one or the other of these elements collides too violently with its environment or runs counter to human nature or is expressed in inept language, he may expect both popular and professional criticism and possible defeat. So too with the executive and the administrator. All must measure up or expect deserved criticism.